Virginia: Medical Malpractice – a Lawyer’s Policies (May 1, 2014)

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On April 30, 2014, Mr. Waterman filed Reply Brief Amicus Curiae for Virginia Trial Lawyers Association in Support of Appellant, the patient’s widow, in the wrongful death appeal of Temple v. Mary Washington Hosp., Inc., No. 131754 in the Virginia Supreme Court. A major issue addressed in his rebuttal is the discoverability of hospital policies, an excerpt of which follows.

A.        2011 Amendment is a red herring.

2011 Amendment to Va. Code § 8.01-581.17(B&C) did not address or expand policies protection. A contemporaneous publication by counsel for Appellees’ Amicus Curiae, Virginia Association of Defense Attorneys (“VADA”), corroborates that.

W. Scott Johnson, Esq. is name partner of Hancock, Daniel, Johnson & Nagle (“HDJN”), VADA’s counsel. His HDJN partner, Mr. Walkinshaw, is VADA’s author in Temple and was Riverside’s author in Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006).

1.         Amendment codified Riverside and incident reports.

Riverside, 272 Va. at 530-34, held: (1) “factual information of patient care,” including an “incident report,” is not privileged; (2) “deliberative analysis” of a protected committee is privileged; and (3) factual information provided a protected committee is not privileged. Riverside did not hold whether policies were privileged or discoverable.

Bipartisan 2011 Amendment – after three failed VHHA initiatives – added four consecutive sentences to §8.01-581.17(B)(numbers and emphasis added), the first three of which effectively codify Riverside:

[1] Nothing in this section shall be construed as providing any privilege to any health care provider, emergency medical services agency, community services board, or behavioral health authority with respect to any factual information regarding specific patient health care or treatment, including patient health care incidents, whether oral, electronic, or written. [2] However, the analysis, findings, conclusions, recommendations, and the deliberative process of any medical staff committee, utilization review committee, or other committee, board, group, commission, or other entity specified in § 8.01-581.16, as well as the proceedings, minutes, records and reports, including the opinions and reports of experts, of such entities shall be privileged in their entirety under this section. [3] Information known by a witness with knowledge of the facts or treating health care providers is not privileged or protected from discovery merely because it is provided to a committee, board group, commission, or other entity specified in §8.01-581.16, and may be discovered by deposition or otherwise in the course of discovery. [4] A person involved in the work of the entities referenced in this subsection shall not be made a witness with knowledge of the facts by virtue of his involvement in the quality assurance, peer review, or credentialing process.

 2011 Amendment adds the same second sentence to §8.01-581.17(C).

Consistent with the plain reading of 2011 Amendment as a whole, Mr. Johnson recounts it addressed Riverside and incident reports, not policies. Johnson, W.S., “2011 General Assembly Amendments to Va. Code §8.01-581.17: Quality Assurance and Peer Review Protection,” 60 Virginia Lawyer 44 (Dec. 2011). Snippet quotes and histrionics by VADA and Virginia Hospital & Healthcare Association (“VHHA”) take 2011 Amendment out of its historical/linguistic context.

2.         Amendment does not expand protection re policies.

Even if arguendo 2011 Amendment “reversed” Riverside and “restored” pre-Riverside privilege protection – which obviously contradicts its plain language – that simply constitutes a return to pre-Riverside jurisprudence. E.g., Stevens v. Hosp. Auth. of the City of Petersburg, 42 Va. Cir. 321 (Richmond 1997); Hawkins v. Pinkerton’s, Inc., 42 Va. Cir. 316 (Petersburg 1997); Stevens v. Lemmie, 40 Va. Cir. 499 (Petersburg 1996); Estate of Curtis v. Fairfax Hosp. Sys., 21 Va. Cir. 275 (Fairfax 1990); Johnson v. Roanoke Mem’l Hosps., Inc., 9 Va. Cir. 196 (Roanoke 1987). Quoting only the second sentence of 2011 Amendment, Mr. Johnson styles it “an effort to clearly reverse the ruling in Riverside” and that the “legislation reaffirms” the pre-Riverside privilege protection “is restored”. Id. at 46 (emphasis added). Such styling may save lobbying face and/or influence some attitudes. But again, that myopic view contradicts the 2011 Amendment as a whole; and in any event, mere “reverse” and “restored” is not true “expansion” and does not even refer to policies. Hence Fleming v. Mountain States Health Alliance, 2012 WL 1909343 (W.D. May 25, 2012) and Flinchum v. INOVA Health Sys., 84 Va. Cir. 530 (Fairfax 2012) are correctly reasoned and decided; VADA attempts to sully and distinguish them are unfounded; and VHHA invitation to the Virginia Supreme Court to leave Circuits adrift re Amendment vis-à-vis policies should be declined.

Moreover, even if “analysis, findings, conclusions, recommendations, and the deliberative process” language crafted for Riverside and incident reports were applied in the context of policies, it would not render privileged versus discoverable the actual policies themselves as implemented and disseminated by MWH. Fleming; Flinchum. Plaintiff did not seek predicate committee “findings, conclusions, recommendations” that may have led to MWH finally using the actual policies, just the policies outside of committee at hospital computers, nurses stations, accreditation authorities.

B.        2005 PSQIA is a red herring.

Appellees’ Amicus Curiae, VHHA, raises 2005 Patient Safety and Quality Improvement Act (“PSQIA”). But PSQIA: [1] was not raised below; [2] does not cover “patient’s medical records…or any other original patient or provider record,” 42 U.S.C. §299b-21(7)(B)(ii), or “extend backward to underlying factual information within or referred to in patient safety data reported,” Senate Rep. No. 108-196 at 5 (2003); [3] may not cover MWH; and [4] has been claimed wrongly by HDJN. E.g., Whitby v. Peninsula Neurosurgical Assocs., Inc., No. CL13-4969T-01, Order (Newport News Mar. 20, 2014).

C.        Policies are relevant and not privileged on their face.

Plaintiff compelled all relevant Mary Washinton Hospital (“MWH”) policies, and at hearing proffered re 9 policies, evidenced by consistent deposition testimony of 5 nurses and 1 doctor. For example, multiple MWH policies covered Defendant responsibility for patient “control”. Judge Order denied discovery re all. Defendants muddled, not stipulated, control at trial.

Appellees and their Amicii coattail Judge’s proclamation policies are not “relevant,” premised on supposed inadmissibility under “private rules” doctrine. Yet MWH’s total of 12 policies withheld plainly are “relevant” on their face, i.e., have “logical tendency to prove an issue in the case” or “tend to establish the probability or improbability of a fact;” and “private rules” doctrine does not preclude all admissibility, let alone discoverability, i.e., policies appearing “reasonably calculated to lead to the discovery of admissible evidence”. Fleming, at *4 (“unpersuaded…policies…are not discoverable under Godsey and Pullen because they [supposedly] are irrelevant and inadmissible”).

Dispositively, MWH offered no evidence that any of its 12 policies withheld were of a “protected committee,” prerequisite for §8.01-581.17 to apply at all. Bare privilege claims by legal counsel do not suffice. Robertson v. Commonwealth, 181 Va. 520, 540 (1943); Fleming at *6 (no “evidence”).