Medical Malpractice: Va. Code Ann. §8.01-581.17 – a Lawyer’s Database

Medical Malpractice: Va. Code Ann. §8.01-581.17 – a Lawyer’s Database

Another defense tactic in medical malpractice case is attempting to fabricate a distinction between “paper” and “electronic” records. But Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006), the landmark case of Avery T. “Sandy” Waterman, Jr., Esq., also upheld the admissibility of such electronic database materials, extensive discovery has exposed paper and electronic as the same, and courts have proved savvy.

Pre-Riverside, in Norfolk Circuit Court, Judge Jacobson found Sentara’s QCCR and prior “Annual Data Summaries and Incident Report excerpts” were not privileged. See, 2/12/01 Garner v. Sentara Order. Judge Taylor then ruled prior incidents as were “substantially similar” may be admissible in evidence on “notice”. See, 2/22/01 Garner v. Sentara Hearing Transcript Excerpt. Cf., Riverside, 272 Va. at 525-528. Sentara’s designated most knowledgeable person (“MKP”), its Risk Manager, testified about its database of all incidents and underlying software program, and produced database print-outs. See, 1/5/01 Garner Deposition of Sentara (Jacque Mitchell) Excerpt with Exhibits 1-6 Excerpts. Charlottesville Circuit Court found the incident “database” of University of Virginia’s Medical Center not privileged. See, Eppard v. Kelly, 62 Va. Cir. 57, 64-65 (Charlottesville 2003). Newport News Circuit Court found Riverside’s electronic QMS database of prior QCCRs was not privileged and was admissible, see, 2/15/05Riverside v. Johnson Order; and 2/11/05 Riverside v. Johnson QMS Database; and was upheld by the Virginia Supreme Court.

Post-Riverside, Newport News Circuit twice again found Riverside’s electronic QMS database of incident reports was not privileged in medical malpractice cases. Judge Tench in Licare v. Riverside and Judge Pugh in Shakshober v. Riverside ordered production of all factual information in all Riverside database reports, even though Riverside previously had provided part of its QMS electronic database voluntarily. See, 8/3/07 Licare v. Riverside Order; and 6/24/08 Shakshober v. Riverside Judge’s Order.

Beginning in 1996, Riverside selectively inputted factual patient care information from its incident reports into a computer software program named the Quality Management System (“QMS”), and then destroyed its paper incident reports. See, 2006 Riverside v. Johnson Appeal Appendix Excerpt at 1717-1732. A Risk Management Consultant of The Virginia Insurance Reciprocal (“TVIR”), Riverside’s former long-time medical malpractice insurer, verifies that TVIR created the QMS software program; designed it to have paper incident report data inputted into it; and marketed and distributed it to Riverside and other members of the Virginia Hospitals and Healthcare Association (“VHHA”). See, 12/18/08 Shakshober v. Riverside Deposition of Colleen Lynch at 37.20-38.9 and 44.21-53.1. Since Riverside v. Johnson, Riverside has been using a new paper-less remote data entry “Midas System Manager (“Midas”) software, which now self-servingly tracks and calls “incident reports” as Quality Referrals. See, 7/23/07 Seibert v. Riverside Second Order at 1. Sentara too is a VHHA member and former long-time TVIR insured; and used a software program to input paper incident reports data. See, 1/5/01 Garner v. Sentara Rule 4:5(b)(6) Deposition of Sentara (Jacque Marshall).