10 May Virginia: Medical Malpractice – a Lawyer’s Product
On May 9, 2014, Patient’s Motion to Enforce Va. Code §8.01-413(C) Subpoena Duces Tecum, Riverside’s Motion to Quash, and Dr. Schultz’s Objection was heard in the wrongful death case of Joanne T. Rauchfuss, Administratrix of the Estate of George William Rauchfuss, Jr., Deceased 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, and Riverside Healthcare Association, Inc., Case No. CL1302754V-04, in the Circuit Court for the City of Newport News, Virginia. Riverside and Dr. Schultz claimed work product privilege for multiple notes and a witness statement created before and after Riverside’s outside counsel directed an investigation be undertaken on December 11, 2012.
In the Rauchfuss medical malpractice proceeding, the Judge ruled that the following materials responsive to Mr. Waterman’s Subpoena were not protected as privileged work product and, alternatively, that even if privileged as work product, the patient still was entitled to them under the exception for substantial need and no substantial equivalent without undue hardship:
1. (12/11/12) Handwritten notes on medical record print-out by Risk Manager, Wendy Conner;
2. (3/18/13) Handwritten notes on medical record print-out by Risk Manager, Wendy Conner;
3. (12/11/12) Handwritten notes of telephone conversation with Dr. Roger E. Schultz by Risk Manager, Wendy Conner;
4. (12/11/12) Handwritten notes of telephone conversation with Dr. John F. Miller by Risk Manager, Wendy Conner;
5. (3/12/13) Handwritten notes of telephone conversation with Dr. Roger E. Schultz by Risk Manager, Wendy Conner;
6. (3/18/13) Handwritten notes of telephone conversation with the patient, George Rauchfuss, by Risk Manager, Wendy Conner; and
7. (12/__/12) “Witness Statement about my Care of Mr. George Rauchfuss Jr.” by Dr. Roger E. Schultz.
The Judge ruled after evidence ore tenus and oral arguments in a roughly 5-hour privilege hearing, which was the 4th privilege hearing among the parties.
The Judge also ruled in the Rauchfuss wrongful death matter that the foregoing materials would be redacted for opinions, mental impressions, etc. But the Judge denied the request of Dr. Schultz for yet another privilege hearing about the Judge’s intended redactions.
Additionally, the Judge in the Rauchfuss medical malpractice suit denied Riverside’s request for a Protective Order, refusing to limit use of the redacted materials provided to that particular case. Finally, the Judge directed Mr. Waterman to draft an Order memorializing his rulings; and in the event that opposing counsel did not agree with the same within 7 days, that counsel simply could submit a draft Order directly to the Court.