Virginia: Medical Malpractice – a Lawyer’s Pilot (April 29, 2015)

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On April 29, 2015, Plaintiff’s Third Motion to Compel and Plaintiff’s Fourth Motion to Compel against Defendants, Riverside Healthcare Association, Inc., Riverside Hospital, Inc., and Riverside Physician Services, Inc. (collectively “Riverside”), were heard in Mr. Waterman’s alleged wrongful death lawsuit, Rauchfuss v. Schultz, et al., No. CL1302754-04(DP) in Circuit Court for the City of Newport News, Virginia. Among other things, Riverside agreed and the Court ruled that Riverside shall have its IT representative present for the deposition of Defendant, Dr. Pettus, to fulfill Paragraph No. 12 of its 10/31/12 Hearing Order.

More significantly, as an apparent matter of “first impression,” the Court in Rauchfuss medical malpractice case granted Plaintiff’s Motion to Compel re Interrogatory 22 and corresponding Request for Production 22, ruling Riverside had to provide Plaintiff all radiology “pilot program” information and materials requested therein. Previously, at discovery deposition in Rauchfuss, Riverside’s Assistant Risk Manager admitted that Riverside had launched its new radiology “pilot program” for certain of its patients – which allegedly featured in fact new improved standards for radiologists communicating diagnostic imaging findings/reports to ordering physicians (which still were not part of Defendants’ then-current policies) – while Defendants continued to fail to communicate their diagnostic imaging finding/report of cancer to George Rauchfuss as their patient.

Also notably in the Rauchfuss wrongful death claim, Riverside and Plaintiff agreed and the Court ruled that as supplement to the USBs of the patient’s electronic medical record produced by Riverside, as indicated in 10/31/14 Hearing Order

1. The Court allows read-only access to Plaintiff’s counsel on arrangement with Riverside to come on site and view any electronic medical record pertaining only to Plaintiff for underlying data that Plaintiff’s counsel deems relevant, with the right to print that information so as to be reviewed later. Riverside’s counsel or counsel’s representative shall be present for any such on-site viewing, and is only to observe that Plaintiff’s counsel does not become confused or violate any confidences of any other patient by access to their records. Following discovery onsite by Plaintiff’s counsel, Riverside’s IT personnel shall delete the history of that inspection, viewing and/or printing to the extent technologically feasible and legally permissible; Riverside shall not use such information improperly, violate such discovery or searches, or otherwise keep records re Plaintiff counsel’s inspection, viewing and/or printing. Riverside may charge Plaintiff only the printing costs for any specific reasonable numbered requests.

Plaintiff’s counsel is allowed to have IT personnel participate with him in his on-site inspection/viewing. Patient’s electronic medical record shall include, but not be limited to, SpeechQ, myHealth eLink, and LinkLogic. Riverside and Plaintiff reserve their rights to submit legal authority re whether or not in fact it is legally permissible for Riverside to delete history of Plaintiff’s counsel inspection, viewing and/or printing.

2. Additionally and/or alternatively, upon Plaintiff’s specific request for data or information underlying Riverside’s USB production, Riverside shall respond specifically and provide a reasonable number of documents, which is not to be unduly burdensome on Riverside both as to time or economics. If Plaintiff asks Riverside for additional detail about a specific set of documents on Riverside’s USBs, Riverside shall provide the requested information, not respond you already have it. Riverside may charge Plaintiff only the printing costs for any reasonable numbered requests.

Pursuant to Plaintiff’s specific requests at hearing, Riverside shall provide Plaintiff: (1) the “data dictionary” for all audit trails and metadata; (2) all “edit” metadata; (3) all “LinkLogic” metadata; (4) all warning pop-ups, built-in alerts, other overrides, etc. for myHealth eLink and/or Centricity; and (5) all “differential diagnoses” drop-downs for Centricity – all for case-pertinent times TBD. IT personnel of Plaintiff and of Riverside shall confer to determine whether Riverside searching for “edit” and “LinkLogic” in its audit trails is in fact a “Herculean” undertaking and, if they disagree about the same (and Plaintiff chooses not to provide more specific dates for “edit” and “LinkLogic”), then the parties may reschedule the matter for additional hearing.

3. If IT personnel for Plaintiff and Riverside conclude there is a better way to do this, then the Court encourages their cooperation.