On April 3, 2018, Loudoun Circuit Court issued 16-page Letter Opinion and Order in the nursing home case of Hirsch v. CSP Nova, LLC, No. 108222, ruling for plaintiff victim, on multiple key discovery points:
- Defendants: All discovery rulings applied to both Defendants, the “licensed operational entity” and the “management company,” unless and until Defendants meaningfully distinguished their entities, their custody and control, and their obligations. Id. at 2 n.3.
- Relevance: “Defendants rely on a much too narrow reading of the applicable discovery principles”; “Virginia law contemplates a rather liberal application of discovery rules in civil cases”; and it is well established in Virginia that “every fact, however remote or insignificant, that tends to establish the probability or improbability of a fact in issue is relevant”. Id. at 7.
- Privilege: “[T]o the extent Defendants claim the referenced event report is privileged, they would need to provide a privilege log [; and since] no such privilege log has been provided by Defendants…the privilege objection is overruled.” Id. at 8.
- EMR: Rather than being “intrusive” and irrelevant, “the requested electronic data regarding [resident patient’s] care, including the audit trials and metadata associated therewith, constitute a part of her medical records to which plaintiff is entitled pursuant to Code §8.01-413.” Id. at 9.
- Medical Records: “Defendants are compelled to produce the complete medical records in the possession relating to [resident patient’s] stay in their facility,” including the event report and any other investigative materials, notes, videos, photos, recorded statements, commentaries, reports, notes, interviews or other communications requested. Id. at 7-9.
- Protective Order: “To date, Defendants have offered no reason for maintaining the confidentiality of the information contained in the referenced incident report.” Id. at 9.
- Training Materials: “Defendants are compelled to produce the requested training materials,” i.e., “training materials provided to nurses aides and nurses… regarding fall prevention, use of bed alarms, hygiene, resident feeding, weight loss, admission and discharge, resident toileting, charting, staffing, and responsible party and physician notifications”. Id. at 9-11.
- Policies and Procedures: “Defendants are compelled to produce the requested…policies and procedures,” i.e., “guidelines, rules, protocols and/or policies involving staff by-laws,…resident assessment, fall prevention, care planning, nutrition, weight loss, eating assistance, hygiene, charting and documentation, and use of bed rails, restraints, beside commodes, bed alarms, and floor mats”. Id. at 9-11.
- Personnel Files: “Defendants’ objection is without merit [, and Plaintff is] entitled to know what training was received by the staff members [and] the other information possibly in those files”. Id. at 11-12.
- Prior Complaints: “Defendants objections [again are] without merit,” [as] “prior complaints regarding similar incidents are relevant…to establish that a facility had notice of a defective or dangerous condition prior to the subject injury,” and are “also relevant to show that conduct previously engaged in may be repeated,” raising an inference. Id. at 12-14.
- Staffing: “[I]nformation regarding staffing…in other parts of the facility on the day in question and on the other days at the facility is relevant to the issue whether defendants had adequate staffing to meet [resident patient’s] basic daily living needs at the time of the subject fall”; so the information sought by plaintiff is discoverable, i.e., “census and patient activity”. e.g., Id. at 12-14.
- Discoverability versus Admissibility: “Defendants again appear to conflate discoverability with admissibility and focus inappropriately,” id. at 12; thus, the question of the admissibility of the evidence sought by plaintiff is not now before the Court, notwithstanding Defendants’ repeated attempts to make it appear so.” Id. at 13-14 n.10.
- Financial and Operational Documents: “Defendants in essence, are seeking, for discovery purposes, to bifurcate the issues of liability and the issue of punitive damages;” which is “neither procedurally practicable nor appropriate;” so “Defendants are compelled to produce the requested financial and operational documents. i.e., “Defendants’ balance reports, 10ks, annual operating expenses, financial statements, and tax returns”. Id. at 14-15.
- Staff contract Information: Defendant’s objections again are “without merit” and overruled: “Defendants are compelled to provide full and complete responses”. Id. at 15-16.
- All Fall-related Information: Defendant’s objections again are “without merit” and overruled: “Defendants are compelled to provide full and complete responses”. Id. at 15-16.
- Family Communications with Defendants: Defendant’s objections again are “without merit” and overruled: “Defendants are compelled to provide full and complete responses”. Id. at 15-16.
- Fall Prevention Guidelines and Training: Defendant’s objections again are “without merit” and overruled: “Defendants are compelled to provide full and complete responses”. Id. at 15-16.
- Separate Electronic Charting Information: Defendant’s objections again are “without merit” and overruled: “Defendants are compelled to provide full and complete responses”. Id. at 15-16.
- Uncharted Fall Prevention Interventions: Defendant’s objections again are “without merit” and overruled: “Defendants are compelled to provide full and complete responses”. Id. at 15-16.
- Pre-Fall Staffing Levels: Defendant’s objections again are “without merit” and overruled: “Defendants are compelled to provide full and complete responses”. Id. at 16.
Hirsch ordered all compelled responses to be provided within 21 days.
