02 Feb Medical Malpractice: Va. Code Ann. § 8.01-581.17(C) – a Lawyer’s Exception (II)
The last sentence of § 8.01-581.17(C) provides another broad exception that negates any privilege for routine incident reports, electronic incident data, sentinel event reports and investigative materials in medical malpractice cases: “nor shall this section preclude or affect discovery of or production of evidence relating to hospitalization or treatment of any patient in the ordinary course of hospitalization of such patient.” (emphasis added). Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 534 (2006), the landmark case of Avery T. “Sandy” Waterman, Jr., Esq., held that a “QCCR, or incident report,” was not privileged because it was “a factual recitation of a fall that occurred during Johnson’s hospitalization and the immediate action taken when Johnson was found on the floor.”
“Any evidence, then, that relates to the treatment of any patient or his hospitalization … is discoverable, notwithstanding whatever privilege the preceding language may have granted.” Johnson, 9 Va. Cir. at 199. “How can these words be given any other meaning than what they clearly say: this section shall NOT preclude, it mandates, or affect discovery of evidence that relates to a patient’s hospitalization or treatment. And this relation is not quantified; any relation to treatment or hospitalization, however infinitesimal, however generalized, is all that is required.” Id. at 199-200 (emphasis in original). An “Incident Report . . . contains facts and evidence relating to the hospitalization or treatment of said patient in the ordinary course of her hospitalization.” Atkinson, 9 Va. Cir. at 23. “Because a hospital may . . . contend that various reports are not [of] a patient’s treatment does not make it so.” Benedict, 10 Va. Cir. at 437.
The Riverside medical malpractice case held that an incident report database excerpt not privileged because it was a “factual description of Johnson’s fall and that of another patient, which according to [the Risk Manager’s testimony], was based on a QCCR. Like the QCCR, the information on this [QMS database] page related to the raw data about the hospitalization and treatment of specific patients.” 272 Va. at 534. Post-Riverside courts similarly find unprotected incident report databases, see, e.g., 6/24/08 Shakahober v. Riverside Order; 8/3/07 Licare v. Riverside Order; 7/23/07 Seibert v. Riverside Second Order; and 2/15/05 Riverside v. Johnson Order; “sentinel event” reports and investigative materials. See, e.g., 8/3/07 Licare v. Riverside Order; 7/23/07 Seibert v. Riverside Second Order; 1/8/02 Brown v. Riverside Order; and 5/5/08 Morel v. Mary Immaculate Order at 3-4.