01 Feb Medical Malpractice: Va. Code Ann. § 8.01-581.17(C) – a Lawyer’s Exception (I)
The last sentence of § 8.01-581.17(C) provides a broad exception negating privilege for routine incident reports, electronic incident data, sentinel event reports and investigative materials in medical malpractice cases. “Nothing in this section shall be construed as providing any privilege to the hospital medical records kept with respect to any patient in the ordinary course of business of operating a hospital . . . .” (emphasis added). Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 534 (2006), landmark case of Avery T. “Sandy” Waterman, Jr., Esq., held Riverside’s “QCCR, or incident report,” was not privileged because it was “written documentation of the circumstances of Johnson’s fall, kept in the normal course of business”. (emphasis added).
Institutions “have tried to classify routine accident or incident reports which are completed by employees on a regular basis as quality assurance documents.” Messerly v. Avante Group, Inc., 42 Va. Cir. 26, 27 (Rockingham 1996). But they “do not rise to the level as contemplated by the statute of being quality assurance deliberative documents.” E.g., Bradburn v. Rockingham Mem’l Hosp., 45 Va. Cir. 356, 360 (Rockingham 1998); Huffman v. Beverly California Corp., 42 Va. Cir. 205, 216 (Rockingham 1997);Messerly, 42 Va. Cir. at 27-28. “The QCCRs, QCCRs, or ‘Pink Sheets’ (. . . ‘Incident Reports’) are prepared by staff personnel whenever there is an untoward incident which occurs at the hospital.” Bradburn, 45 Va. Cir. at 358. “They are simply recitations of the accident that occurred, the witnesses who were present, and other objective facts that can be ascertained from the eyewitnesses to the incident.” Id. at 360. They “will likely have been produced by a person with the background and training to know what questions to ask and what information to collect. The person preparing the report is also likely to have access to those people most knowledgeable about the incident at a time the incident is fresh in mind.” Hurdle, 49 Va. Cir. at 329. They are standard in all health care facilities. E.g., Eppard v. Kelly, 62 Va. Cir. 57, 63 (Charlottesville 2003); Huffman, 42 Va. Cir. at 216; Messerly, 42 Va. Cir. at 26. Cf., Riverside v. Johnson, 272 Va. at 530-531.
Healthcare institutions essentially assert that them self-servingly choosing to keep their patient incident reports, incident report databases, sentinel event reports and/or investigative materials separate from the patient’s chart is self-proving of their privileged status inmedical malpractice cases. But “the Incident Report in question falls within the purview of the last sentence of Section 8.01-581.17. It is a hospital medical record kept with respect to the patient . . . in the ordinary course of the business of [Defendant] operating its hospital . . . .” Atkinson, 9 Va. Cir. at 23. Bradburn, 45 Va. Cir. at 360; Huffman, 42 Va. Cir. at 216; Messerly, 42 Va. Cir. at 28. Defendant in Hurdle even conceded the point. 49 Va. Cir. at 329. “Because a hospital may not choose to call a document ‘medical record’ or may contend that various reports are not maintained in the ordinary course of a hospital’s business . . . does not make it so.” Benedict, 10 Va. Cir. at 437.
“What are, or should be, records kept in the ordinary course of treating a patient or operating a hospital with respect to patients, that is the ultimate question. The ordinary course of a hospital’s function surely includes the prevention of accident or mishaps to those who have been entrusted to its care. Charting the ordinary course of a patient’s treatment would or should require description of events out of the ordinary that relate to a patient’s health and well-being.” Benedict, 10 Va. Cir. at 436 (emphasis added).
“Clearly, injuries to a patient, whether in a hospital or a nursing home, need to be included in the patient’s medical chart and cannot be shielded from discovery by the mere expediency of forwarding these ‘reports’ to a so-called quality control committee.” Messerly, 42 Va. Cir. at 28; Eppard, 62 Va. Cir. at 63; Bradburn, 45 Va. Cir. at 361; Huffman, 45 Va. Cir. at 216. Significantly, incident reports sometimes bear a telltale badge: like other patient medical records kept in the chart, they may be stamped (in the upper right-hand corner) with the patient’s identification plate, medical record number and/or the like.