Virginia: Medical Malpractice – a Lawyer’s Regulation

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Virginia mandates that in-patient hospitals promulgate, maintain, use, review, and revise policies and procedures. The Virginia Department of Health regulates through the Virginia Administrative Code (“VAC”), which should be admissible in medical malpractice cases.

12 VAC 5-410-200(C)(2)(a), entitled “Organization” requires: “Each hospital department and service shall maintain: Written policies and procedures including: Patient care where applicable”. (emphasis added) 12 VAC 5-410-230(B), entitled “Patient Care Management,” requires: “Each hospital shall have a plan that includes effective mechanisms for the periodic review and revision of patient care policies and procedures.”

VAC also requires special policies and procedures of particular hospital services: anesthesia service, 12 VAC 5-410-240(B&C); sterile supply service, 12 VAC 5-410-250(D); dietary service, 12 VAC 5-410-260 (“manual”); disaster and mass casualty plan, 12 VAC 5-410-270; emergency service, 12 VAC 5-410-280(A); blood banks and transfusion services, 12 VAC 5-410-340(A); medical records, 12 VAC 5-410-370(C&D); surgical services, 12 VAC 5-410-420(A, C(3) & F); obstetric and newborn services, 12 VAC 5-410-440(B)(2); obstetric service, 12 VAC 5-410-441(U); newborn service, 12 VAC 5-410-444(K); special care units, 12 VAC 5-410-460(B); housekeeping service, 12 VAC 5-410-480(A); and infection control, 12 VAC 5-410-490(A).

Likewise, Virginia mandates policies and procedures for outpatient surgical hospitals. 12 VAC 5-410-1160 & 1170. VAC also has special policies and procedures requirements for their personnel and services: medical staff, 12 VAC 5-410-1180; anesthesia service, 12 VAC 5-410-1200(C); sterile supply service, 12 VAC 5-410-1210(B); and evacuation plan, 12 VAC 5-410-1230.

Where state healthcare regulation requires documents “in the regular course of the [healthcare provider’s] business, [they] are generally discoverable”. See, Tibbs v. Bunnell/Goff, No. 2012-SC-000603-MR, *13 (W.Va. Sup. Ct. Aug. 21, 2014)(“state-mandated information” of hospital not privileged). Tibbs is a medical malpractice “privilege” case resolved in patient’s favor.