Medical Malpractice: Va. Code Ann. §8.01-413 – a Lawyer’s Admissions

Medical Malpractice: Va. Code Ann. §8.01-413 – a Lawyer’s Admissions

Some healthcare providers strenuously deny the applicability of Va. Code Ann. §8.01-413(B & C) while suit for medical malpractice is pending. But tellingly, others have admitted its applicability, even with suit unserved.

After Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), Riverside thrice admitted the applicability of §8.01-413(B) to ostensible “quality care” records – all while medical malpractice suit was “pending”. First, for pre-suit and post-suit §8.01-413(B) requests in Shakshober v. Riverside, Riverside voluntarily produced multiple ostensible “quality care” papers. See, 11/16&21/06 & 3/17/08 Shakshober v. Riverside Letters of Waterman and Defense Counsel; 2/16/06 Shakshober v. Riverside Fall Quality Care Control Report (“QCCR”); 2/26/08 Shakshober v. Riverside Midas Risk Management Worksheets; 2/17/06 Shakshober v. Riverside Procedure/Practices Quality Care Control Report; 2/16/06 Shakshober v. Riverside Falls Abstraction Data Tool; and 2/26/08Shakshober v. Riverside QMS Transaction Summary Report Excerpt.

Second, with another medical malpractice case, Seibert v. Riverside, pending in response to pre-service §8.01-413(B) request for incident reports, Riverside voluntarily provided the QCCR. SeeSeibert v. Riverside 11/29/06 & 1/2/07 Letters of Waterman and Defense Counsel; and 7/14/05 Seibert v. Riverside RHS Quality Care Control Report. Riverside admitted its QCCR actually was created by its medical malpractice insurer; “contains factual information that is provided…in the ordinary course of its business”; and is “a factual record that pursuant to [8.01-581.17] now is discoverable.” See, 3/13/07 Seibert v. Riverside Hearing Transcript Excerpt at 13.13-24 & 21.3-8

Third, with yet another medical malpractice case, Licare v. Riverside, pending in response to Licare’s pre-service § 8.01-413(B) request for the deceased’s incident reports and database, Riverside belatedly provided voluntarily part of the Quality Management System (“QMS”) incident report database. See, 2/16/07, 2/27/07 & 7/2/07 Licare v. Riverside Letters of Defense Counsel to Waterman; and 2/5/07 Licare v. Riverside QMS Database Transaction Summary Report. At hearing, Riverside admitted: “it’s my understanding that that Indicator Text [of the database] is essentially a transposition of what was in the incident report [‘not currently in existence’].” See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 27.3-19.