Virginia: Wrongful Death – a Lawyer’s PSQIA

Virginia: Wrongful Death – a Lawyer’s PSQIA

On March 12, 2014, the medical malpractice lawsuit of Whitby v. Peninsula Neurological Associates, Inc., Richard B. McAdam, M.D., Bon Secours Mary Immaculate Hospital, and Mary Immaculate Hospital, Incorporated, No. CL13-4969T-01 in Circuit Court for the City of Newport News, Virginia came on for evidentiary privilege hearing. It was on Mary Immaculate Hospital, Inc. (“MIH”)’s Motion to Quash and on Patient’s Motion to Enforce Va. Code §8.01-413(C) Subpoena Duces Tecum.

Notably in the Whitby wrongful death case, Hancock Daniel Johnson & Nagle (“HDJN”) claimed in its Motion to Quash that all responsive materials of MIH were privileged under the Patient Safety and Quality Improvement Act of 2005 (“PSQIA”), which Mr. Waterman questioned in his Memorandum. In response, HDJN admitted that MIH had not fully implemented and operationalized its Quantros Patient Safety Organization participation for purposes of PSQIA when it created Quantros materials re the patient; withdrew its claim of patient safety work product protected by PSQIA; and provided to patient’s counsel MIH’s 2-page 12/22/11 Quantros SRM V5.6 Initial Report Review and MIH’s 2-page 12/22/11 Quantros SRM V5.6 Legal Copy Preview response to §8.01-413(C) Subpoena.

Similar to Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006) and Virginia Code §8.01-581.17, the PSQIA delineates that protected Patient Safety Work Product does not include “patient’s medical records, billing and discharge information, or any other original patient or provider record,” see, 42 U.S.C. §299b-21(7)(B)(ii)(emphasis added); plus Legislative History amplifies that PSQIA “protections do not extend backward to underlying factual information contained within or referred to in patient safety data reported to a [Patient Safety Organization]”. See, S. Rep. No. 108-196, at 5 (2003)(emphasis added). Of course, pursuant to Va. Code §8.01-413(C), patient expressly is subpoenaing “medical records” and other factual information of patient care – regardless whether the healthcare provider segregates them apart and names them differently from its “patient chart”.

Hence this old 2005 PSQIA sleeping dog already has not hunt for HDJN in another recent medical malpractice case. Counts v. Johnston Mem’l Hosp., Inc., No. CL13-418 in Circuit Court for the County of Washington, Virginia. On December 19, 2013, Judge Johnson issued a Letter Opinion in favor of patient; and on January 13, 2014, he issued an Order in favor of patient.

In Counts, HDJN was involved with its client trying to create PSQIA privilege protection. In Counts, Judge Johnson found the materials withheld by HDJN’s client actually fell within PSQIA’s aforesaid “patient’s medical records and other original patient or provider” exception.

In Counts, Judge Johnson conducted in camera review and ruled the patient was entitled to all 10 of 10 documents withheld under PSQIA, except for 2 sentences and 3 paragraphs. Judge Johnson also denied reconsideration and interlocutory appeal.

Also, Newport News Circuit Court in the Whitby medical malpractice suit ordered MIH to provide patient’s counsel all internal “factual investigation, witness interview notes, and correspondence” prepared by MIH and not counsel that were responsive to §8.01-413(C) Subpoena. HDJN represented that the only known responsive material is the 1-page document provided patient’s counsel.

Finally, the Court in the Whitby wrongful death proceedings sustained patient’s objection to the 3/11/14 Affidavit of Denise Allard tendered by MIH at hearing (but not reviewed by the Court), on grounds of hearsay and denial of cross-examination. The Court advised MIH that if it does not provide sufficient testimony ore tenus in support of its privilege claims under Va. Code §8.01-581.16 and §8.01-581.17 at evidentiary privilege hearing rescheduled for March 25, 2014, then the Court shall order production of its so-called Deliberative Quality Assurance Documents – Follow-up Preview 1, 2, and 3 in their entirety.

Mr. Waterman routinely handles medical malpractice, vehicle accident, and other wrongful death and personal injury suits. He opposes dubious claims of privilege vigorously.

THE VIRGINIA STATE BAR REQUIRES ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN’S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.