Medical Malpractice: Va. Code Ann. § 8.01-581.17(B) – a Lawyer’s Exception (III)

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“The protection provided by § 8.01-581.17 is a qualified privilege similar to the privilege afforded by Rules of Court 4:1(b)(3),” observed Justice Lemons in Stevens v. Lemmie, 40 Va. Cir. 499, 512 (Petersburg 1996)(Lemons, J.)(emphasis added), a medical malpractice case. The limited privilege for certain “committee” communications pertains only “unless a Circuit Court, after a hearing and for good cause arising from extraordinary circumstances being shown, orders the disclosure of such proceedings, minutes, records, reports, or communications.” Va. Code Ann. § 8.01-581.17 (emphasis added).

For the analogous work-product privilege, determination of “good cause” is “a matter within the trial court’s discretion and will be reversed only if the action taken was improvident and affected substantial rights.” Rakes v. Fulcher, 210 Va. 542, 546 (1970). Applying a Rule 4:1(b)(3) “substantial hardship” analysis, the claimed patient “quality care” documents and data should be disclosed under § 8.01-581.17(B), regardless whether they are not discoverable under § 8.01-581.17(C). See, e.g.McMillan, 45 Va. Cir. at 397; McGuin v. Mount Vernon Nursing Ctr. Assocs., L.P., 45 Va. Cir. 386, 386-387 (Fairfax 1998); Benedict, 10 Va. Cir. at 438.

The McGuin medical malpractice case found the incident report was not privileged and, alternatively, Plaintiff had substantial need and no equivalent where the patient had died. 45 Va. Cir. at 386. McMillan is broader, recognizing incident reports as sui generis – a unique source of contemporaneous corroborating factual information – regardless patient and/or nurse availability. “Where, as here, the document constitutes a source of information relevant to the inquiry which is not reasonably discoverable from other sources, it may be ordered produced. * * * From other testimony and argument, it is clear that incident reports are prepared whenever there is a fall, and thus they would constitute the only reasonable source of facts to challenge or corroborate the expert’s contention.” 45 Va. Cir. at 397 (emphasis added). Benedict is to the same effect.

“The injured patient . . . is at such an unfair [dis]advantage: one single individual, sick and weak, pitted against a colossal corporate giant with staff and resources unlimited and personnel schooled in the techniques of avoiding or minimized losses for claimed negligence. Already incapacitated and perhaps further damaged by the incident and at the complete mercy of the personnel from whom she seeks recovery and relief, she is hardly in a position to undertake critical investigation of what happened. * * * * [T]he Court is satisfied that enough substantial need has been shown to require the production of these documents and that obtaining their substantial equivalent could not only not be obtained ‘without undue hardship’ but could probably not be obtained at all. * * * * When the input by one party to an issue in dispute has been so handicapped at the outset because of the conditions of health and the location and environment in which the incidents occurred and when measured against the relative investigative strengths of the parties, natural notions of fair play lean heavily toward opening rather than closing doors that might balance the contest. The potential harm to the Claimant in refusing the discovery sought far outweighs the benefit to the Defendant.” 10 Va. Cir. at 438.

More recently in a medical malpractice case handled by Avery T. “Sandy” Waterman, Jr., Esq., Seibert v. Riverside on June 11, 2007, the court found “good cause arising from extraordinary circumstances being shown,” based on Riverside’s malpractice rendering the patient brain-damaged. See, 6/11/07 Seibert v. Riverside Hearing Transcript Excerpt at 37.7-49.22; and 7/23/07 Seibert v. Riverside Second Order. Seibert was followed and extended in Licare v. Riverside on July 10, 2007, another medical malpracticecase of Mr. Waterman, with the court finding good cause “arising from extraordinary circumstances being shown,” based on Riverside’s malpractice killing the patient and, alternatively, on Riverside’s document “retention” policy of destroying its original incident reports. See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 50.20-51.15; and 8/3/07 Licare v. Riverside Order.