Virginia Medical Malpractice – a Lawyer’s Publication (1 of 13)
In The Journal for Spring, 2008, the Virginia Trial Lawyers Association (“VTLA”) specially featured “Healthcare Policies, Procedures and Protocols: Discoverability, Abuse, Admissibility & Legislation”. That leading medical malpractice article was authored by Avery T. “Sandy” Waterman, Jr., Esq., and is reprinted without full citations in a 13-part series. Its outline and introduction follow.
I. PP&P DISCOVERABILITY
A. Privilege is construed strictly and must be proved by the proponent.
B. PP&P are not privileged under Va. Code Ann. §8.01-581.17.
C. “Good cause arising from extraordinary circumstances” trumps privilege.
II. PP&P ABUSE
III. PP&P ADMISSIBILITY
A. Godsey-Pullen should be overturned as an erroneous minority anachronism.
B. The Godsey-Pullen “private rules” doctrine does not apply to PP&P.
C. PP&P are admissible as “habit” and/or “routine practice” evidence.
D. PP&P are admissible as “vicarious liability” evidence.
E. PP&P are admissible as “sovereign immunity” evidence.
F. PP&P are admissible as “standard of care” evidence.
G. PP&P are admissible as “notice” evidence.
H. PP&P may be admissible on other evidentiary grounds.
IV. PP&P LEGISLATION
Over a century ago, Victor Hugo declared in Historie d’un Crime, “On résiste a I’invasion des armées; on ne résiste pas a I’invasion des idées.” As oft-paraphrased in English, “Nothing is more powerful than an idea whose time has come.”
Hospitals, nursing homes, physician offices and other healthcare providers promulgate practice rules in the routine course of their business. Such practice rules usually are called policies, procedures and protocols (“PP&P”). Other common references are standards, guidelines, manuals, handbooks, bylaws, regulations, directives, instructions, criteria, orders, tools, plans, descriptions, etc. All are subsumed under PP&P herein.
Healthcare providers treat and care for all patients using their PP&P, but secret their PP&P from all patients. They jealously guard their PP&P as if they were unique proprietary formulae. But in fact, their PP&P customarily are uniform across their healthcare industry, characteristically evincing state and national accreditation dictates and/or professional society norms. That really is the primary reason why healthcare providers fight use and even disclosure of their PP&P in all medical malpractice litigation.
Yet healthcare PP&P are discoverable because they meet the classic threshold test – that they may “lead to the discovery of admissible evidence” – and they are not privileged. Indeed, healthcare PP&P are admissible into evidence on multiple independent grounds. Healthcare providers frequently abuse Va. Code Ann. §8.01-581.17 and the archaic “private rules” doctrine by invoking them without foundation toward denying victim litigants their PP&P, while disclosing their PP&P to their own “standard of care” litigation experts surreptitiously. To delineate the existing law and concomitantly to curb the widespread abuse, §8.01-581.17 should be amended to declare that PP&P promulgated for use are not privileged.
U.S. Supreme Court Justice Louis Brandeis advocated openness and transparency generally decades ago: “Sunlight is said to be the best of disinfectants.” Weighing in early and strong for disclosure of PP&P, Judge Coulter of Roanoke resonated: “Secrecy, after all, is an anathema to the search for truth and is foreign to the American process.”
