06 Feb Medical Malpractice: Va Code Ann. § 8.01-581.17 – a Lawyer’s Report
Historically in medical malpractice cases, the defense enjoyed knee-jerk success with convincing Courts to treat so-called “sentinel event reports” differently than other “incident reports”. But that has changed this decade, and stands to erode further in the face ofRiverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006), the landmark case handled by Avery T. “Sandy” Waterman, Jr., Esq.
In two of Mr. Waterman’s medical malpractice cases, Courts have ruled that the factual information of sentinel event reports is not protected. First, in Brown v. Riverside, Judge Hubbard found discoverable Riverside’s Sentinel Event Quality Assurance Report, even though the underlying incident occurred one month earlier. See, 1/8/02 Brown v. Riverside Order. Second, in Seibert v. Riverside, Judge Pugh found all factual information in Riverside’s sentinel event and other investigative materials discoverable, even though the underlying incident occurred weeks earlier and Riverside had tried to avoid disclosure with a “quality care” Affidavit. See, 6/11/07 Seibert v. Riverside Hearing Transcript Excerpt.
The defense spin is sentinel event reports are unique and sacrosanct. But Mr. Waterman debunked that through the Riverside School of Professional Nursing Director in the Seibert medical malpractice case. It’s director admitted that a “sentinel event” just means a “significant event,” like a death or other serious injury, about which statistics are kept and inter alia taught to students routinely. See¸ 4/20/07 Seibert v. Riverside Rule 4:5(b)(6) Deposition of Riverside (Deborah Sullivan-Yates) Excerpt at 25.14-27.19. Moreover, the fact that facilities are supposed to report sentinel events to the Joint Commission on Accreditation of Health Organizations (“JCAHO”) raises two significant points. First, the requirement of routine reporting eviscerates any ostensible “work product” claim that a true Sentinel Event Report instead was made in anticipation of litigation. Second, facilities hate to report incidents as sentinel events, so often do not – which puts the facility at risk with JCAHO for not reporting as required and its counsel at risk with the Court for not being candid as required. When the initial gambit of false name-dropping as a sentinel event report fails to evoke knee-jerk protection, defense counsel then recharacterizes the same as investigative materials supposedly covered by “work product;” as unsuccessfully was attempted in Seibert.