15 Dec Virginia: Medical Malpractice – a Lawyer’s Pilot
On December 15, 2015, the Court entered 10/13/15 Pilot Program Order on Motion to Reconsider Ruling on Pilot Programs of Defendants, Riverside Physician Services, Inc., Riverside Hospital, Inc., and Riverside Healthcare Association, Inc. in the alleged wrongful death case of Joanne T. Rauchfuss, Administratrix of the Estate of George William Rauchfuss, Jr., Deceased v. Roger E. Schultz, M.D., Hampton Roads Urology, Riverside Physician Services, Inc., Riverside Medical Group, Benjamin J. Pettus, M.D., Peninsula Radiological Associates, LTD., Riverside Diagnostic Center – Williamsburg, Riverside Hospital, Inc., Riverside Health System, and Riverside Healthcare Association, Inc., No. CL1302754V-04 (DP) in Circuit Court for Newport News, Virginia. Riverside Defendants unsuccessfully sought to rely on evidence ore tenus by Dr. Gregg Shivers, Riverside’s “Physician Champion” for the Radiology Results Reporting Project (of which the Pilot Program was a pivotal part).
In the Rauchfuss medical malpractice lawsuit: “The Court FINDS that the documents listed on Riverside Defendants’ 8/7/15 Privilege Log and 10/9/13 Revised Privilege Log (including particularly without limitation Riverside Defendants’ Root Cause Analysis materials for third-party patients), all of which already were in the possession of Riverside Defendants at the time of the currently challenged ruling from 4/29/15 hearing, are pre-pilot, pilot, and post-pilot parts of the overall radiologist results reporting project related to and not separate and apart from the pilot program, should have been produced previously, and do not constitute “after-acquired” evidence; ADOPTS Plaintiff’s argument on “after-acquired” evidence in support of its decision; DENIES Riverside Defendants’ Motion to Reconsider Ruling on Pilot Program solely on the basis of there being no “after-acquired” evidence; DENIES Riverside Defendants’ request for Protective Order for third-party patient information, but by consent on in camera review shall REDACT all patient “identifying information” of third-party patients from all documents in 10/9/15 Revised Privilege Log prior to providing them to Plaintiff, to which redaction Riverside Defendants can note their Objection about sufficiency; FINDS and ADOPTS Plaintiff’s argument that Riverside’s Defendants’ Root Cause Analyses for third-party patients are relevant and discoverable; EXTENDS the end date for responsive document production to the latest date in Riverside’s Revised Privilege Log, i.e., October 14, 2014, not the earlier date that delayed cancer diagnosis was communicated to Plaintiff’s deceased; and does not need to reach, and therefore does not reach, Riverside Defendants’ remaining Va. Code §8.01–581.16 and §8.01–581.17 and attorney-client privilege claims and evidence re the same because it ruled against Riverside Defendants on the threshold question of “after-acquired” evidence and thereupon denied their Motion to Reconsider and their request to present evidence on claimed quality protection; but ORDERS that any briefs or argument filed in relationship to the substantive privilege issues be made a part of the record of this proceeding”.
After entry of the 10/13/15 Pilot Program Order at hearing on December 15, 2015, Riverside Defendants sought numerous additional redactions re third-party in the Rauchfuss wrongful death suit, pursuant to HIPAA and their Objection and Request for Further Redaction; while Plaintiff emphasized that Court Orders are an express exception under HIPAA, and that the degree of all disclosure/redaction is purely a matter of judicial discretion. The Court agreed with Plaintiff; observed that it had intended only third-party patient names, addresses, phones, and dates of birth to be redacted; granted that third-party patient insurance and financial account numbers also be redacted; and denied redaction of third-party patient medical diagnoses, medical record numbers, order numbers, study numbers, specimen numbers, report numbers, dictation numbers, and insurer names.
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