Virginia: Medical Malpractice – a Lawyer’s PSQIA

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On August 21, 2014, the Supreme Court of Kentucky issued Tibbs v. Bunnell, No. 2012-SC-000603-MR, which wrongful death appeal resolved a first impression question on discovery dispute re the proper scope of federal privilege under the Patient Safety and Quality Improvement Act of 2005 (“PSQIA”). Tibbs held that “information normally contained in an incident report is not privileged under the Act and may be discovered following an in camera review, and its information compelled.” Id. at *23.

“To the extent the information normally contained in such state-mandated incident reports in intermingled with other material properly privileged under the Act, they may be separated from each other by the trial court in camera.” Id. Accordingly, the Tibbs medical malpractice Opinion remanded “to the trial court for in camera review”. Id.

Significantly, Tibbs cited Venosh v. Henzes, No. 11CV3-58, 2013 WL 3725157 (Pa. Com. Pl. July 17, 2013) for denial of PSQIA privilege “on the basis that there was no evidence that the two event reports were provided to a duly certified PSO,” i.e., “patient safety organization” as required by PSQIA. Id. at *21. Tibbs observed that the same rationale was noted in Francis v. United States, No. 09Civ.4004(GBD)(KNF), 2011 WL 2224509 (S.D.N.Y. May 31, 2011). Id.

In Virginia, Hancock, Daniels, Johnson & Nagle (“HDJN”) has claimed PSQIA privilege in at least two cases where, in fact, the resisting hospitals actually had not implemented the PSQIA prerequisites. Whitby v. Peninsula Neurosurgical Assocs., Inc., No. CL13-4969T-01, 3/12/14 Privilege Hr’g Order (Newport News Mar. 20, 2014); Counts v. Johnston Mem’l Hosp., Inc., No. CL13-418 Letter Op. (Washington Dec. 19, 2013), Order (Washington Jan. 13, 2014). Moreover, Counts also found that 10 documents withheld by HDJN fell within PSQIA’s privilege exception for “patient’s medical records and other original patient or provider record”. Id.