Virginia: Patient Fall – a Lawyer’s Discovery

Virginia: Patient Fall – a Lawyer’s Discovery

On December 5, 2013, Mr. Waterman prevailed substantially on Motion to Enforce Va. Code Ann. §8.01-413(C) Subpoena Duces Tecum of Plaintiff patient and on Motion to Quash of Defendant healthcare provider, Virginia Health Services, Inc. d/b/a Walter Reed Convalescent & Rehabilitation Center, Long Term Care of Tidewater, P.C. It was in the wrongful death lawsuit, Patrick Lee Cherrie, Administrator of the Estate of Gerda A. Harvey, Deceased, v. Virginia Health Services, Inc., d/b/a Walter Reed Convalescent & Rehabilitation Center, Long Term Care of Tidewater, P.C., and Raina Winfrey, M.D., No. CL12000440-00 in Circuit Court for Gloucester County, Virginia.

In Cherrie, the 89 year-old high fall-risk patient suffered 3 falls in 5 days, the last 1 resulting in fatal brain injury. The lawsuit seeks $4,450,000.00 in damages for Defendant healthcare providers failing to implement standard patient safety interventions – including particularly but not limited to the “bed alarm” belatedly used after the fatal fall – as alleged.

First, the Court found that it is appropriate for Plaintiff patient to issue and enforce a Va. Code Ann. §8.01-413(C) Subpoena Duces Tecum to Defendant healthcare provider in the pending Cherrie medical malpractice proceedings. Specifically, the Judge ruled that §8.01-413(C) trumps Va. Sup. Ct. Rule 4:9, upon which Defendant healthcare provider sought to rely.

Second, the Court found that Va. Code Ann. §8.01-581.17 does not cover any of the documents redacted and withheld by Defendant healthcare provider in theCherrie patient fall case. The grounds were that the documents were not materials of a covered committee, board, group, commission, or entity; and, alternatively, that all redactions in the 7/18, 22 & 23/12 Incident/Accident Reports and 7/18, 22 & 23/12 Fall Investigations are not privileged because they are factual in nature.

Third, the Court found that the 7/23/12 typed 3-page Investigation and handwritten 1-page Timeline of Director of Nursing Tiffany Robbins, 7/22/12 Statement of Diane Woodward, 7/23/12 Statement of Carole Johnson, and 7/25/12 Statement of Carole Johnson, 7/25/12 Statement of Amber Morris, Statement of Erik Buckley of the nursing home are not privileged work product, are not protected, and are discoverable.

Fourth, the Court found that the 8/22/12 Statement of Tonya Matthews, 8/22/12 Statement of Annette Carter, 8/22/12 Statement of Karen Dipentima, 8/23/12 Statement of Keletha Russell, and 8/23/12 Statement of Diane Saffell are privileged, protected, and not discoverable work product because they were taken after Plaintiff patient’s counsel sent a claim letter to Defendant healthcare provider.

Fifth, the Court in Cherrie found that Plaintiff patient had shown “substantial need” for the 8/22/12 Statement of Tonya Matthews and 8/27/12, which memorialize what the deceased’s daughter stated re the wrongful death matter. Sixth, the Court found that Plaintiff patient had not shown “substantial need” at this time for the 8/23/12 Statement of Keletha Russell and 8/23/12 Statement of Diane Saffell, but granted leave to renew his motion to establish such “substantial need” after taking the depositions of Keletha Russell and Diane Saffell.

Thus, the Court in the Cherrie brain injury suit ordered that within ten (10) days of hearing, or by December 15, 2013, Defendant healthcare provider shall provide in hand to Mr. Waterman the following 14 documents in their entirety without redaction: (1) 7/18/12 Incident/Accident Report of Carole Johnson; (2) 7/22/12 Incident/Accident Report of Diane Woodard; (3) 7/23/12 Incident/Accident Report of Carole Johnson; (4) 7/18/12 Fall Investigation of Carole Johnson; (5) 7/22/12 Fall Investigation of Diane Woodard; (6) 7/23/12 Fall Investigation of Carole Johnson; (7) 7/23/12 Investigation Report Summary of Tiffany Robbins; (8) 7/23/12 Timeline of Tiffany Robbins; (9) 7/22/12 Statement of Diane Woodard; (10) 7/23/12 Statement of Carole Johnson; (11) 7/25/12 Statement of Carole Johnson; (12) 7/25/12 Statement of Amber Morris; (13) 8/22/12 Statement of Tonya Matthews; and (14) 8/27/12 Statement of Erik Buckley. Defendant healthcare provider’s Director of Risk Management, Ms. Wright, had testified at “privilege” hearing, claiming that the Investigation, Timeline, and all 10 Statements were protected “work product”.