07 May Virginia: Legal Recognitions – a Lawyer’s Privilege
On April 30, 2018, Virginia Lawyers Weekly headlined “Peer Review privilege waived over discovery” on its front page, reporting the 4/16/18 wrongful death case Order in Creasy v. Medical Assocs. of Southwest Virginia, Inc., No. CL-17-1582 in Montgomery Circuit Court. Id. at 1. Virginia Lawyers Weekly contacted Mr. Waterman about the Creasy medical malpractice decision and quoted him at length on it:
“Newport News lawyer Avery T. ‘Sandy’ Waterman Jr. – who often litigates medical liability discovery issues – welcomed the fee-shifting language in Long’s order.
‘It’s about time that sanctions were imposed. Defense abuse of medical malpractice privilege claims has been rampant – standard operating procedure – for decades’ Waterman said.
Despite what he termed a ‘sea change’ in judicial rulings since the Supreme Court’s Riverside v. Johnson decision established a right of access to medical facts in 2006, defense attitudes and tactics had not changed, Waterman said. ‘Hopefully, sanctions will,’ he said.”
Id. at 30. Significantly, Virginia Lawyers Weekly also quoted Plaintiff counsel in Creasy: (1) that the hospital documents at issue revealed “a large number of very important facts that were not set forth anywhere in Ms. Creasy’s medical records”; (2) that “some of the information was incredibly damaging to the hospital from a liability standpoint”; (3) that they “identified potential new defendants and avoided the running of the statute of limitations as to them”; (4) that the case is “proof that a lot of these [medical malpractice] cases are defended on – at best – shaky grounds”; and (5) that “hospital systems are routinely hiding facts within the guise of ‘peer review’.” Id. Mr. Waterman has had the same bad experience with multiple hospitals and nursing homes over two decades.