05 Feb Medical Malpractice: Va. Code Ann. § 8.01-581.17 – a Lawyer’s Tale
Following the landmark case of Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), handled by Avery T. “Sandy” Waterman, Jr., Esq., healthcare providers routinely are being forced to provide their incident reports and other investigative materials for medical malpractice cases. Toward stemming the changing judicial tide, some defense counsel are extending themselves with representations.
In the medical malpractice case of Seibert v. Riverside, for example, defense counsel represented to the Court that there was “no sentinel event report” and that only an “incident report” was involved in Brown v. Riverside, see, 6/11/07 Seibert v. RiversideHearing Transcript Excerpt at 42.24-43.6; that the document withheld in Seibert was a “sentinel event report,” which supposedly was sui generis; id. at 27.13-28.16; and that plaintiff already had all factual information by the incident report. Id. at 29.8-30.4. Further, defense counsel crafted a “quality care” Affidavit, claiming the materials in question were privileged “quality care” documents issued by a protected committee. See, 4/3/07 Seibert v. Riverside Affidavit of Delana Merenda.
But all were inaccurate defense representations to the Court. There was a sentinel event report in Brown, Judge Hubbard found it not privileged, and it was produced –which defense counsel in Seibert knew from being defense counsel in Brown. See, 1/5/02 Brown v. Riverside Order; and 3/8/97 Brown v. Riverside Sentinel Event Quality Assurance Report. Also, there was more factual information not in the Seibert incident report. Compare 7/14/05 Seibert v. Riverside RHS Quality Care Control Report with 6/22/07Seibert v. Riverside Judge’s Letter with 7/27/05-8/24/05 Redacted Investigative Materials. Additionally, there was only investigative materials and not a true sentinel event report in Seibert. Id. Further, the Seibert investigation issued at the behest of the Risk Manager. See, 7/9/07 Seibert v. Riverside Rule 4:5(b)(6) Deposition of Riverside (Delana Merenda) Excerpt at 1-4 & 32.34-46.21. Deposition of Merenda exposed her Affidavit as a farce. Such misrepresentations in medical malpractice cases should be sanctioned and not condoned by Courts.