Virginia: Medical Malpractice – a Lawyer’s Admissibility

Virginia: Medical Malpractice – a Lawyer’s Admissibility

The following is an excerpt re admissibility of policies from Brief Amicus Curiae of Virginia Trial Lawyers Association in Support of Appellant recently written by Mr. Waterman. It was lodged in the wrongful death appeal of Temple v. Mary Washington Hosp., Inc., No. 131754 in the Virginia Supreme Court.

“All relevant evidence is admissible”, unless contrary to Constitution, Court’s Rules, or evidentiary principle. Va. R. Evid. Rule 2:402. “Every fact, however remote or insignificant, that tends to establish the probability or improbability of a fact in issue is relevant.” Virginia Elec. and Power Co. v. Dungee, 258 Va. 235, 260 (1999)(fence defect photos “relevant” though not “proximate cause of plaintiff’s injuries”).

In opposing discoverability by claiming there is no admissibility, Defendants resurrected Virginia Ry. & Power Co. v. Godsey, 117 Va. 167 (1915) and Pullen v. Nickens, 226 Va. 342 (1983) to presume their policies sacrosanct. But Godsey-Pullen is archaic, overgeneralized, and misapplied; healthcare policies are admissible for numerous reasons.

A.      Godsey-Pullen does not exclude healthcare policies.

The anachronistic “private rules” doctrine should not be reaffirmed for the new millennium. Significantly, however, the discoverability and even the admissibility of policies does not depend on this Court overruling Godsey-Pullen, as Godsey-Pullen readily is distinguishable and limited on the facts. Moreover, policies merely corroborating standard of care (“SOC”) first established independently by expert testimony does not contravene Godsey-Pullen.

1.      Godsey-Pullen should be overturned.

Pullen reaffirmed Godsey; yet “one of the arguments in support of the Godsey decision of 1915 was the expressed observation that the majority rule then in vogue in the nation prohibited the introduction of a company’s private rules. Since then, however, the climate has changed substantially.” Johnson v. Roanoke Mem’l Hosp., 9 Va. Cir. 186, 202 (Roanoke Aug. 13, 1987)(Coulter, J.).

By early 1980s, three-quarters of the nation had abandoned that 100 year-old rule. Id. at 203. Pullen acknowledged over 30 years ago the “majority of jurisdictions hold [private rules] are admissible”. 226 Va. at 350

Godsey-Pullen’s old argument that the doctrine supposedly is necessary to encourage private rules,117 Va. at 169 and 226 Va. at 351, which was espoused by Defendant; now is dubious analytically and empirically. That Godsey-Pullen thinking is particularly misplaced in the context of the current sophisticated regulated healthcare industry.

Modern healthcare is steeped in rulemaking by government and numerous professional entities, wholly separate and apart from whether and to what extent Virginia continues archaically to subscribe to the minority “private rules” doctrine. Moreover, Virginia healthcare providers would expose themselves to more, not less, liability if they ever recklessly abandoned all private rules and practiced ad hoc.

The “private rules” doctrine that fit in the nostalgic twilight of the horse and buggy a century ago – and that long since has been rejected as unsuitable by the overwhelming majority of states – now is flagrant error in the modern era of big institutional healthcare. The Virginia Supreme Court applying since 2008 a modern “commercial business” realties analysis to limit the doctrine of “charitable immunity” and to deny it to big healthcare, see, Univ. of Va. Health Servs. Found. v. Morris, 275 Va. 319, 326-28, 336-39 (2008); is consistent with rejection or at least amelioration of the Godsey-Pullen legal anachronism in the context of big institutional healthcare.

Reversal of Godsey-Pullen involves stare decisis. But Oraee v. Breeding,270 Va. 488-500 (2005)(medical malpractice decision “expressly overruled”) declared: “Upon no sound principle do we feel at liberty to perpetuate an error into which either our predecessors or ourselves may have inadvertently fallen, merely upon the ground of such erroneous decision having been previously rendered.”

2.      Godsey-Pullen is distinguishable.

Even if the archaic “private rules” doctrine is not abrogated, it does not govern healthcare policies on several independent grounds. First, Godsey-Pullen applies only to “litigant who is not a party to such rules,”226 Va. at 351; and patients and healthcare providers are parties to policies.

Patients often have in-house patient advocates representing their interests in the rule-making process. Additionally, patients undeniably are the intended third-party beneficiaries of policies. “Patients are also parties to these [rules] as members of the public represented by government agencies which require and enforce health care standards for ‘the public welfare’.”Schockemoehl, G.M., Admissibility of Written Standards as Evidence of the Standard of Care in Medical and Hospital Negligence Actions in Virginia, 18 U. Rich. L. Rev. 725, 743 (1984).

Healthcare providers obviously are parties to the hospital rules they promulgate, including physicians by their representatives on Committees. Further, physicians are staff members to the hospital, and they sign and promise to follow hospital policy. Schockemoehl, 18 U. Rich. L. Rev at 743.

Second, Godsey and Pullen are distinguishable on their facts. In Godsey, a street car accident victim introduced the company’s operation rules to establish the standard of duty to him. 117 Va. at 168-169.Similarly, in Pullen, a victim motorist introduced highway department maintenance guidelines to establish the standard of duty. 226 Va. at 345-46, 350-51.  

Fatally, however, neither Godsey nor Pullen involved an expert. Plaintiffs in Godsey and Pullen attempted to establish the standard for negligence simply by bare introduction of private rules alone, without any expert to establish independently the legal standard as an evidentiary foundation, before introducing the private rules purely as corroboration.

Conversely, under Virginia’s Medical Malpractice Act,Plaintiffs presumptively must rely upon expert testimony to establish the legal standard independently. Va. Code §8.01-581.20. Indeed, as a medical malpractice suit prerequisite, Plaintiffs must have an expert certify in writing a SOC breach before service of process is requested, i.e., long before there is any discovery of Defendant’s policies. Va. Code §8.01-20.1 and §8.01-50.1. Thus Godsey and Pullen are limited narrowly to fact patterns which inherently are not characteristic of medical malpractice cases; but prohibit an expert purporting to set the standard of care simply based on and by reference to Defendant’s policies alone.

Third, Godsey finding “no evidence of any custom based upon [the particular private rules],”117 Va. at 168; likewise is distinguishable too. Judge Annunziata observed healthcare policies “materials…may properly be seen as reflecting widely-adopted standards established or required by third-party entities, such as the Joint Commission on Accreditation of Healthcare Organizations (‘JCAHO’).”Curtis, supra, 21 Va. Cir. at 279 (citing Schockemoehl, 18 U. Rich L. Rev. at 730.) Therefore, “to the extent the hospital’s policies and protocols are reflective of industry custom and even statewide practices, they may be distinguished from the purely private rules held inadmissible by the Supreme Court in Pullen.”Id. Cf., X-IT Prods., L.L.C. v. Walter Kidde Portable Equip., Inc., 155 F. Supp.2d 577, 629 (E.D. Va. 2001)(“guidelines…reflect business or industry practice”).

Fourth, the Virginia Supreme Court in Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 528-29 (2006) distinguished, rather than embraced, Godsey-Pullen; and “more importantly,” upheld admission of hospital instructions and training materials that were “corroborative” of SOC set by expert testimony, versus “established” SOC. “In this case, the evidence of the staff orientation instruction and nursing curriculum…were not hospital policies or procedures of the type involved in Godsey and Pullen,”272 Va. at 529; and simply were “‘corroborative’ of the expert’s standard of care testimony,” not admitted to “establish” SOC. Id. at 528-529.

That Riverside delineation is consistent with Justice Lemons as Circuit Judge twice citing Godsey and Pullen as authority for: “There is no cause of action based on private rules; however, these rules may be evidence as to the appropriate standard of care to be provided by defendants [and] offer a factual basis for claims of ordinary and gross negligence.” Stevens v. Hosp. Authority of the City of Petersburg, 42 Va. 321, 329 (Richmond May 27, 1997) and Hawkins v. Pinkerton’s, Inc., 42 Va. Cir. 316, 319 (Petersburg May 27, 1997). Also, Fleming v. Mountain States Health Alliance, 2012 WL 1909343, *4 (W.D.Va. May 25, 2012) was “unpersuaded by the defendant’s argument that its policies, procedures and protocols are not discoverable under the Godsey and Pullen cases because they [supposedly] are irrelevant and inadmissible.”

3.      Policies are corroboration re expert standard of care.

Defendants cannot “approbate and reprobate”. Leech v. Beasley, 203 Va. 955, 960-962 (1962) and Garlock Sealing Techs., LLC v. Little, 270 Va. 381, 387-88 (2006); cannot introduce “same character” evidence with impugnity, Pettus v. Irving S. Gottfriend, M.D., P.C., 269 Va. 69, 78-79 (2005); and cannot use privilege as “shield and sword”. Walton v. Mid-Atlantic Spine Specialist, P.C., 280 Va. 113, 120 (2010). Defendants cannot deny and oppose policies as some evidence of SOC, having used policies toward SOC themselves.

a.      Defendants’ use of policies.

At trial Defendant introduced policies in its case-in-chief. Specifically, doctor testified about hospital “policy” re transferring patients from its Emergency Room to its cardiac telemetry floor, to buttress the propriety of the patient having been transferred, i.e., to “corroborate” being within SOC. Such defense testimony is proper, because policies can “corroborate” SOC “established” independently by expert testimony; so Plaintiff could not and did not object. See, (A)(3)(b), infra.

What is improper (erroneous), however, is Plaintiff having been denied that exact policy in discovery, to which doctor had alluded in deposition. Although Plaintiff was permitted to cross-examine the doctor about the policy, she should have had in advance the benefit of the actual policy sought itself for independent verification, for exceptions or nuances, and potentially for other information and/or material to which the policy reasonably may have led by investigation, further discovery and/or testimony preparation; instead of simply having to accept whatever the doctor chose to say, unimpeachably.

Also, Defendant again injected policies in the case-in-chief. Specifically, doctor testified about – indeed, denied – Defendant’s policy re the time within which hospitalists like him had to see new patients on the cardiac telemetry floor, to corroborate him being within SOC. Such defense testimony is proper – policies can “corroborate” SOC “established” independently by expert testimony – so Plaintiff could not and did not object. See, (A)(3)(b), infra.

However, it was error that Plaintiff was denied the alleged “hospitalist” policy sought in discovery. First, based on the consistent deposition testimony of Nurse Practitioner and Nurse that “there’s a policy [hospitalists] have to see the patient within an hour,” with such a policy in hand Plaintiff could have impeached Defendant doctor’s denial.

Second, alternatively, if Plaintiff had such a policy in hand from discovery, a hospitalist certainly would have testified about its existence, which still would have been a material difference re SOC and liability. Bottom line: Defendants being able to withhold policies from Plaintiffs is license for them to claim anything with impunity, while Defendants having to produce policies to Plaintiffs ensures candor; and sound public policy clearly favors the latter over the former.

b.      Plaintiff’s use of policies.

Policies admissibility re SOC does not depend on Defendants introducing policies. As Plaintiff asserts on appeal, “these policies would be admissible to corroborate the widow’s experts’ testimony on standard of care”.

Plaintiff acknowledges policies “can’t be used solely as the basis for standard-of-care testimony at trial,” i.e., to “establish” SOC. Yet Plaintiff delineates policies can be “corroboration for my [SOC] expert’s standard of care testimony which is right out of Riverside”; “they can be used for corroboration.”

Policies alone do not establish SOC. But they may be some evidence by Plaintiffs if SOC first is established independently by expert testimony.See, Riverside, 272 Va. at 528-29; Bly v. Rhoads, 216 Va. 645, 653 (1976); Stevens v. Hosp. Authority, 42 Va. Cir. at 329-30 (Lemons, J.); Hawkins, 42 Va. Cir. at 319 (Lemons, J.); Curtis v. Fairfax Hosp. Sys., Inc., 21 Va. Cir. 275, 278-79 (Fairfax Sep. 21, 1990)(Annunziata, J.); Johnson, 9 Va. Cir. at 202-03 (Coulter, J.); and Schockemoehl, 18 U. Rich. L. Rev. at 741-44 & n.81.

As Circuit Judge, Justice Lemons twice delineated: “There is no cause of action based on private rules; however, these rules may be evidence as to the appropriate standard of care to be provided by defendants [and] offer a factual basis for claims of ordinary and gross negligence.” Stevens v. Hosp. Authority, 42 Va. Cir. at 329-330 and Hawkins, 42 Va. Cir. at 319. Justice Lemons cited Godsey and Pullen as authority for his evidentiary pronouncement. Id.

If an expert testifies to establish SOC as foundation (based on his education, training, experience, literature, etc.), subsequently policies can be introduced as “corroboration” of that standard. That is analytically sound and fundamentally fair: the pivotal predicate independent expert testimony of SOC elevates policies beyond mere bare “private rules” and sufficiently delineates them as some concrete corroborative examples of SOC.

Policies were not offered in evidence in Riverside, but this Court’s reasoning suggests policies being admissible as “corroboration” of SOC, though not to “establish” SOC. “More importantly, it was clear throughout this proceeding that the trial court ruled, and the Estate agreed, that the evidence in question [‘staff orientation instruction and nursing curriculum’ claimed but found not to be ‘private rules’] would not be admitted to establish the standard of care;” 272 Va. at 529, and just was “corroborative of the expert’s standard of care testimony”. Id. at 528.

Bly also did not reach admissibility of policies, because Plaintiff did not introduce sufficient SOC expert testimony for a prima facie case. But Bly observed judge’s exclusion of hospital rules was only “arguably… supported by precedent [of] Godsey”.216 Va. at 653. “Bly…implies that [policies] may provide some evidence of the standard of care,” reasoned Judge Annunziata. Curtis, 21 Va. Cir. at 278-79.

Analogously, use of policies to “corroborate”, but not to “establish,” SOC is identical to use of agent declarations as evidence of agency in Virginia. The “declarations of an agent cannot be received to prove his agency until the fact of his agency has been otherwise established,” Turner v. Burford Buick Corp., 201 Va. 693, 697 (1960); but once independent “evidence has been introduced tending to prove the alleged agency, or to make out a prima facie case thereof, the declarations of the alleged agent become admissible in corroboration”. Bloxom v. Rose, 151 Va. 590, 599 (1928).Turner. Id.

B.      Other Godsey-Pullen grounds of policies admissibility.

Even if policies were not used to corroborate SOC first established independently by expert testimony, policies still are admissible for various other purposes. Cf., Lombard v. Rohrbaugh, 262 Va. 484, 497 (2001)(evidence of insurance generally inadmissible, but admissible to show bias or prejudice). Under Godsey-Pullen, policies still are relevant and admissible for multiple additional distinct grounds other than SOC.

Plaintiff emphasized that she did not “intend to use [policies] solely for standard of care”. “So we contend that just like Riverside, there are other reasons why policies can be important and are discoverable in these actions.”

1.      Policies are admissible re “habit”/“routine practice”.

Healthcare interests passed Va. Code 8.01-397.1, making habit and/or routine practice evidence admissible in medical malpractice cases:

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eye witnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Evidence of prior conduct may be relevant to rebut evidence of habit or routine practice.

Va. Code 8.01-397.1(A). Policies inherently bespeak “routine practice” and “habit”: as Plaintiff argued, “hospital policies give me facts about how the place runs and who they expect [to do what, when, and how].” A1154.

“A ‘habit’ is a person’s regular response to repeated specific situations. A ‘routine practice’ is a regular course of conduct of a group of persons or an organization in response to repeated specific situations.” 8.01-397.1(B).

Defendant healthcare providers frequently profess no recollection of malpractice-related conduct in question. Policies stand to refresh things.

Also, claimed memory loss often segues to healthcare providers testifying self-servingly about their supposed personal habit and/or organization’s routine practice, i.e., to attesting generally to having done the right thing under the circumstances. Thus, policies also stand as a singular yardstick by which to measure  – and impeach – claimed habit and/or routine practice under §8.01-397.1, necessarily making them relevant, material, and even crucial evidence. See also, (B)(2), infra.

In Williamson v. Columbia/HCA John Randolph, Inc.,No. CL 00278, Hr’g Tr. (Chesterfield Jun. 16, 2000). Plaintiff emphasized policies were “best evidence” of routine practice. Judge concurred: “As far as a routine practice of an organization, now you can’t get that unless you have some record like [policies].” Id. at 15.7-16.

2.      Policies are admissible re “impeachment”.

Plaintiff argues policies are admissible for impeachment. Again, as Judge Annunziata in Curtis observes, policies “will likely permit a more thorough and effective examination of the defendants and their experts,” 21 Va. Cir. at 280; which includes impeachment with policies. Cf., Walton, supra, 280 Va. at 130 (medical malpractice Defendant cannot avoid impeachment by using privilege claim as both a shield and a sword).

When Defendant’s nursing expert claimed SOC did not require a bed alarm/alert and that they were not used on her VCU Hospital unit, Judge ordered discovery of VCU Health System’s hospital-wide Fall Prevention Protocol proving they were used at VCU Hospital. Burrell v. Riverside Hosp., Inc., No. CL1101633F-15, Order at 1 (Newport News Nov. 19, 2012) So under pain of policies impeachment, Defendant’s SOC expert had to be honest that bed alarms/alerts actually were used at VCU hopital.

3.      Policies are admissible re “control”.

Plaintiff requested policies discovery re “control” among Defendants:

We intend to use them because we have three defendants in this case, emergency room, hospitalist and the hospital itself.

And one of the issues is to determine who had control of the patient when and why. And so with those policies based on the testimony we’ve gotten in deposition, we believe we’ll be able to more clearly establish once the hospitalist accepted the patient in the emergency room, does he then take control and responsibility for that patient? Is it a joint-control issue? Who instructs the nurses? Who issues the orders?

There’s testimony from one nurses that patients aren’t supposed to come upstairs until their labs are available. Those are the types of things we would like to discovery.

****[It] certainly can be used for foundation to establish control between the defendants and for other relevant considerations based on the Riverside case.

**** [It] helps us establish the timeline for who’s primarily responsible for that patient at any given point.

Without policies, Defendants muddled “control”.

In Houchens v. Rector and Visitors of the Univ. of Va., 23 Va. Cir. 202, 205 (Charlottesville Jul. 11, 1991)(citations omitted), another medical malpractice case, Judge found policies discoverable re “control” of nurses: “Another element is the extent to which the work of the employee is subject to the control and direction of the employer. It appears to the court that the extent to which the nurses were or were not obligated to abide by standing orders, protocols, or manuals is relevant to the determination….”

4.      Policies are admissible re “agency”/“vicarious liability”.

Broaddus v. Standard Drug Co., 211 Va. 645, 654-56 (1971), upheld admission of private written manual and oral instructions re whether tortfeasor was acting within scope of employment for purposes of vicarious liability. Similarly, policies may lead to admissible evidence indicating MWH nurse was “temporary agent” of Defendant physician/practice. Whitfield v. Whittaker Mem’l Hosp., 210 Va. 176, 182 (1969)(“evidence from which the jury could determine [hospital’s nurse-anesthetist] was temporary agent” of Defendant doctor).

5.      Policies are admissible re “awareness”/“notice”.

Plaintiff argues policies are admissible to show “awareness”. New Bay Shore Corp. v. Lewis,193 Va. 400, 409 (1952) held Defendant’s safety rules and instructions in evidence “indicate that defendant was aware of the potential dangers involved”.

Defendant having “specialized safety training warning against the very omissions he made prior to the accident” is “knowledge or notice” shows willful and wanton conduct. Alfonso v. Robinson, 257 Va. 540, 546 (1999). Defendant’s departure from “instruction and training” evinces gross or willful and wanton negligence. Green v. Ingram, 269 Va. 281, 291 (2005).

Medical malpractice punitive damage claims inherently import proof of Defendant’s prior knowledge and awareness.Boyd v. Bulala, 877 F.2d 1191, 1198 (4th Cir. 1989). Owens Corning Fiberglas v. Watson, 243 Va. 128, 136-37 (1992)(Defendant’s claim summary evinced “notice” for punitive damages). Plaintiff seeking punitive damages must introduce evidence of Defendant’s awareness, and policies put on notice.

Defendant’s gross, willful or wanton negligence is an exception to Plaintiff’s contributory negligence, Wolfe v. Baube, 241 Va. 462, 465 (1991); and to Defendant’s sovereign immunity. Burns v. Gagnon, 283 Va. 657, 677-78 (2012). Policies are evidence of such awareness/notice.