Virginia: Medical Malpractice – a Lawyer’s Privilege

Virginia: Medical Malpractice – a Lawyer’s Privilege

At hearing on November 14, 2013, Mr. Waterman sought the ostensibly privileged “Risk Management investigative file” of healthcare provider Riverside Hospital, Inc. in the medical malpractice lawsuit of George Rauchfuss 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, Riverside Healthcare Association, Inc., No. CL1302754V-04 in Circuit Court for the City of Newport News, Virginia. The Judge ruled in the patient’s favor on his Motion to Enforce Va. Code Ann. 8.01-413(C) Subpoena Duces Tecum and against Riverside on its Motion to Quash.

Riverside argued unsuccessfully in Rauchfuss that §8.01-413(C) Subpoena Duces Tecum was procedurally improper, particularly in light of Riverside being a Defendant in the underlying medical malpractice suit and of that lawsuit not having been served yet. The Court interpreted that the medical records statute permitted such an attorney-issued Subpoena Duces Tecum in a “pending civil case,” that the underlying medical malpractice lawsuit was such a civil case, and that “pending” simply required the suit be filed, not served.

Rauchfuss marks the 7th time that a Court has upheld Mr. Waterman’s use of §8.01-413(C) Subpoena Duces Tecum to obtain ostensibly privileged hospital records containing factual information of patient care, pursuant simply to a HIPAA authorization request for patient records and papers under §8.01-413(B). Medical malpractice Defendant healthcare system giants – Riverside (thrice), Sentara (twice), Bon Secours, and Carilion – never have prevailed contesting this legal point.

The Court in Rauchfuss ordered Riverside to provide Mr. Waterman a “privilege log” itemizing each document withheld under claim of privilege, and ordered Riverside to provide all responsive documents withheld to the Court for its in camera review. Despite Riverside’s claim of privilege under the work product doctrine in the Rauchfuss medical malpractice case, the Court intends to provide the patient with all factual information of patient care, including witness statements, but no thoughts, impressions, opinions, advice, etc. of Riverside’s counsel.

The victim patient in Rauchfuss has sued for $10,000,000.00 for medical malpractice. His Riverside diagnostic imaging and reports showing unequivocally that he had cancer were not communicated to him for over seven (7) months.