Virginia: Medical Malpractice – a Lawyer’s Discoverability

Virginia: Medical Malpractice – a Lawyer’s Discoverability

Temple v. Mary Washington Hosp., Inc., No. 131754 in the Virginia Supreme Court, is a wrongful death appeal that raises the discoverability of policies and of metadata. The following re policies discovery is excepted from Brief Amicus Curiae of Virginia Trial Lawyers Association in Support of Appellant authored by Mr. Waterman.

Temple exposes chronic medical malpractice defense policies dichotomy. Defendants deny Plaintiffs policies, but use them themselves.

A.      Defendants concede discoverability by admitting policies.

Defendants opposed Plaintiff’s policies discovery, complaining policies should not be used “as a sword”. Defendant also opposed Plaintiff’s expert introducing policies.

But in trial Defendants twice used policies “as a sword” against Plaintiff, introducing policies by two physicians’ testimony. Yet on appeal, Defendants again oppose policies discovery, claiming inadmissibility.

In the personal injury case of Leech v. Beasley, 203 Va. 955, 962 (1962), the Virginia Supreme Court held the party “was bound by…his evidence [and] could not retreat from this position”. 203 Va. at 962. Likewise, Defendants at bar are bound by their policies evidence: they cannot “approbate” that policies are admissible and “reprobate” that policies supposedly are not discoverable. Defendant cannot, over Plaintiff’s objections, convince Judge to preclude policies discovery; then introduce policies at trial; and then on appeal oppose policies discovery. Cf., Garlock Sealing Techs., LLC v. Little, 270 Va. 381, 387-388 (2006)(cannot “approbate and reprobate”). Cf., Pettus v. Irving S. Gottfried, M.D., P.C., 269 Va. 69, 78-79 (2005)(substantive “same character” rule waives party’s objection).

Medical malpractice Defendants cannot use “privilege as both a shield, preventing the admission of evidence, and as a sword to mislead the finder of fact by allowing evidence that would be impeached by the privilege information if it had not been suppressed.” Walton v. Mid-Atlantic Spine Specialists, P.C., 280 Va. 113, 130 (2010). Defendants cannot claim §8.01-581.17 privilege to preclude policies discovery unto admissibility; then selectively override claimed privilege to admit policies without prior discovery to Plaintiff’s prejudice. See, Garner v. Sentara Norfolk Gen. Hosp., No. L00-1107, Hr’g Tr. at 12.5-12, 27.5-15, and 29.1-5 (Norfolk Feb. 20, 2001)(holding that Defendant’s policies were discoverable, and since Defendant’s standard of care (“SOC”) expert relied on policies for testimony, that policies were admissible for cross-examination).

This commonplace defense policies dichotomy is patently inequitable to Plaintiffs. As a matter of sound public policy, the Court should expose and condemn, not condone and foster, chronic defense policies abuse.

B.      Plaintiff being denied policies discovery is reversible error.

At the eleventh hour, when Defendants introduce policies at trial, or even when Plaintiffs stumble across policies in defense expert depositions, the damage is done. It is too late for Plaintiffs to discover and recover.

More fundamentally, Plaintiffs are entitled to use policies affirmatively, not simply to respond defensively if and when Defendants ambush with policies. So Plaintiffs must be free to discover policies from the outset.

Defendant and Judge thwarted Plaintiff identifying all responsive policies withheld. In her Memorandum in Support of Motion to Compel, Plaintiff complained about Defendant’s failure to provide the requisite privilege log, citing Va. Sup. Ct. Rule 4:1(b)(6); yet Defendant still did not comply.

At discovery hearing, Plaintiff again protested: “we would ask at the very minimum that a privilege log be…produced so we can determine what’s available and whether or not it’s relevant;” and “at this point to not even have a privilege log or understand what policies exist, it’s a little difficult to argue why they’re relevant when they haven’t even been put down in a privilege log.” But Judge denied first Motion to Compel, holding policies privileged, “not relevant…and will not lead to discoverable evidence,” without requiring Defendant to provide the requisite Rule 4:1(b)(6) privilege log of responsive policies withheld.

Plaintiff being denied hospital policies, individually and certainly collectively, is reversible error. See, e.g., Nizan v. Wells Fargo Bank Minnesota Nat’l Ass’n, 274 Va. 481, 501 (2007)(reversed and remanded)(circuit court preventing party “from conducting discovery that could be relevant” re claim, “abused its discretion”); O’Brian v. Langley School, 256 Va. 547, 552 (1998)(reversed and remanded)(“circuit court precluded any inquiry…by denying the…motion to compel” and thereby was “improvident and affected substantial rights”). Moreover, because Nurse’s CBOT Book actually was “orientation and training” materials, it clearly was discoverable – and even admissible – under Riverside, 272 Va. at 528-531; so it alone being withheld by Defendant and denied by Judge is prejudicial error.

C.      Va. Sup. Ct. Rule 4:1(b)(1) discovery is broad and liberal.

Va. Sup. Ct. Rule 4:1(b)(1) guarantees: “discovery regarding any matter, not privileged, which is relevant to the subject matter”. “Evidence is relevant if it has any logical tendency to prove an issue in a case.” John Crane, Inc. v. Jones, 274 Va. 581, 590 (2007). “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Rule 4:1(b)(1).

Judge Coulter observes, “[s]ince full and open discovery is the overwhelming order of the day and since decisions of ultimate admissibility and relevancy are not yet ripe for rule, the fairer judgment at this stage of the proceedings as perceived by the court would be to allow the plaintiff opportunity to explore the full potential of the documents at issue.” Johnson, 9 Va. Cir. at 202. “Little imagination is required to conclude that the documents sought are quite likely to contain information relevant.” Id. at 201.

Judge Annunziata declares policies “will likely permit a more thorough and effective examination of the defendants and their experts,” and “also can aid in the discovery of other reports or records…which may be admissible”. Curtis, 21 Va. Cir. at 280. “Logically, the hospital’s rules, regulations and protocols can lead to discovery of admissible evidence on a myriad of issues.” Id.

Further, although the admissibility of policies themselves is not a prerequisite to the discoverability of policies under Rule 4:1(b)(1), the fact that policies are admissible mandates that policies are discoverable. Policies can be admissible re habit, routine practice, impeachment, control, agency/various liability, awareness/notice, and SOC.

D.      Privilege is construed strictly and proponent’s burden of proof.

“Mere assertion that the matter is confidential and privileged will not suffice. Unless the document discloses such privilege on its face, [the proponent] must show by the circumstances that it is privileged.”Robertson v. Commonwealth, 181 Va. 520, 540 (1943). Fleming v. Mountain States Health Alliance, 2012 WL 1909343, *6 (W.D.Va. May 25, 2012)(no “evidence” to support defense counsel’s bare representations of privilege).

A document is not privileged just because it was possessed by a body which may enjoy privilege under certain circumstances. Robertson, 181 Va. at 540-541; Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 530-34 (2006). Otherwise, healthcare providers insulate policies just by having them in “protected” Committee temporarily.

Defendant as “proponent has the burden to establish that the . . .

communication under consideration is privileged, and that the privilege was not waived.” Walton, supra, 280 Va. at 122-123. “[P]rivilege is an exception to the general duty to disclose, is an obstacle to the investigation of the truth and should be strictly construed.” Id. at 122.

E.      Policies are not privileged under Va. Code §8.01-581.17.

Regarding Defendants’ bare claim of privilege under §8.01-581.17, its “statutory language is clear, unambiguous, and unqualified”. HCA Health Servs. of Virginia, Inc. v. Levin.260 Va. 215, 220 (2000). “When statutory language is clear and unambiguous, there is no need for construction by the court; the plain meaning of the enactment will be given it. Id.

§8.01-581.17 is not a facility-wide privilege. It “provides a privilege in plain language which is limited narrowly to…committees specified in §8.01-581.16”. Klarfield v. Salsbury. 233 Va. 277, 284 (1987)(italics in original).

Even if there were any ambiguity under §8.01-581.17, it must be resolved against privilege. A statute such as 8.01-581.17 “in derogation of the common law…must be ‘strictly construed and not…enlarged in [its] operation by construction beyond [its] express language’.” Univ. of Va. Health Servs. Found. v. Morris, 275 Va. 319, 332 (2008).

“Any ambiguities in [§8.01-581.17] must be strictly construed for, as the U.S. Supreme Court has noted, ‘exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth’.  United States v. Nixon, 418 U.S. 683, 709-10 (1974).” Curtis, 21 Va. Cir. at 277. “Ambiguities…should not be extended to enlarge the privilege.” Johnson, 9 Va. Cir. at 199.

Notably, Virginia Supreme Court Justice Lemons as Circuit Court Judge agreed with Judge Annunziata and Judge Coulter that “policy manuals were not protected from disclosure under §8.01-581.17” by “the limited scope of the privilege”. Stevens v. Lemmie, 40 Va. Cir. at 507-508. Stevens v. Hosp. Authority, 42 Va. Cir. at 329 (“private rules…may be evidence”); Hawkins, 42 Va. Cir. at 319 (“private rules…may be evidence”). Justice Lemons applied the doctrine of ejusdem generis to interpret “communications” in §8.01-581.17: Presaging Riverside, he reasoned the statute’s protection of certain committee communications was limited by its exception for “discovery of evidence” related to patient hospitalization, including for example “procedure manuals and hospital protocols”. Stevens v. Lemmie, 40 Va. Cir. at 508.

 Justice Lemons then delineated why final policies are not protected, while actual committee deliberations leading up to them may be privileged.

          [T]he ultimate end results of such critiques, which may find their way into depersonalized manuals of procedure and which have been shorn of individualization criticisms, do not merit the same concern for protection from public scrutiny…. In summary, discovery of the hospital’s guidelines, procedures, and protocols does not threaten open discussion and debate within the hospital’s review committees, and therefore, the privilege should not apply.

Id. (quoting Curtis, 21 Va. Cir. at 277-278, quoting Johnson, 9 Va. Cir. at 198). Consistent with Riverside, Justice Lemons concluded: “This Court is in agreement with the opinions of Judge Annunziata [in Curtis] and Judge Coulter [in Johnson] that the privilege against disclosure must be limited to accomplish the purposes of the legislation.”Id.

Plaintiff does not seek draft Committee policies, revision debate, etc.; such preliminary internal materials admittedly are privileged “deliberative analysis”. Plaintiff simply is entitled to the final policies that Defendant routinely disseminated widely, e.g., to governmental and private authorities, at nurses and other computer stations for ordinary use re patients, etc.

Nurse deposed that Defendant’s “policies were stored in the computers and were available on 2 South to [patient’s] nurses”. Also, doctor deposed that STEMI procedure Order was “in the computer”. All Defendant’s policies withheld and denied likely are on MWH computers too.

Finally, Judge Greer debunks self-serving defense policies mantra:

[T]he hospital’s argument is without merit, for, if policies, protocols, and procedures are discoverable, it does not follow that health care providers would be any less conscientious in delivering care to patients. In fact, the converse is more plausible. It is more likely that, if policies, protocols, and procedures ‘see the light of day,’ health care providers will try harder to follow them.

Gravely v. Perren, 2009 Va. Cir. LEXIS 113, *6 (Martinsville Jan. 28, 2009).

F.      “Good cause” privilege exception applies to policies.

“Section 8.01-581.17 allows discovery ‘for good cause arising from extraordinary circumstances being shown’,” wrote Justice Lemons in Stevens. 40 Va. Cir. at 512.He explained §8.01-581.17 is only “qualified privilege similar to the privilege afforded by Rules of Court 4:1(b)(3).” Id.

Like incident reports, policies are sui generis. That evinces “good cause”, especially coupled with chronic defense policies abuse.

G.      Defendants waived any arguable privilege.

Defendants twice introduced policies at trial. That waives any privilege, which suffices for reversal and remand.