Virginia Injury Attorney Blog

This is 11 of 13 reprinting Mr. Waterman’s leading medical malpractice article, “Healthcare Policies, Procedures & Protocols: Discoverability, Abuse, Admissibility & Legislation,” featured in VTLA’s The Journal for Spring, 2008.

F. PP&P are admissible as “standard of care” evidence.

“Strong and appealing argument can be made that [private] rules should be admitted as a help to the jury in determining such a nebulous concept as a standard of care,” progressively observed Judge Coulter in 1984. Further, he noted that a “manual [that] contained safety rules of a private nature [was] referred to with apparent approval in Broaddus” by the Virginia Supreme Court.

PP&P alone do not make a prima facie case. But if relied upon by an expert, they are admissible on SOC. If an expert testifies to establish the SOC, PP&P may be introduced as exemplification of that standard (and for impeachment of the defense and its experts on the same). That is analytically sound: the pivotal expert testimony elevates PP&P beyond mere bare “private rules” and sufficiently establishes them as some concrete examples of the standard of care fixed by the expert’s opinion as a predicate. “Patient care standards . . . do not ultimately define the defendant’s duty. * * * The [hospital’s] standards, along with learned treatises and expert witnesses, simply represent some concrete evidence of that duty and assist the trier of fact in determining the relevant standard of care. * * * Invariably, a defendant hospital’s employees admit under oath that knowledge of relevant standards and substantial compliance with them is a basic part of their orientations training and a required part of their job description.”

The Virginia Supreme Court appropriately exercised judicial restraint on the issue in Riverside. There were narrower grounds on which to decide the appeal, and the aforesaid evidentiary foundation expressly had not been laid by the patient. Purposely in Riverside, the materials in question reviewed by the patient’s expert only were “consulted in formulating her opinion on the standard of care”. That clearly was permissible, since by statute the materials “relied upon [by any expert witness]… need not be admissible in evidence”.

In Bly v. Rhoades, the Virginia Supreme Court found the issue of admissibility of hospital rules moot because the patient had not introduced sufficient SOC expert testimony for a prima facie case. But the Court in Bly observed anyway that the trial court’s exclusion was only “arguably . . . supported by precedent [of] Godsey:” Hence “Bly . . . implies that [hospital rules] may provide some evidence of the standard of care,” pronounced Judge Annunziata. Further, when sitting on the Circuit Court in 1997, Virginia Supreme Court Justice Lemons in Stevens v. Hosp. Auth. For the City of Petersburg declared that a hospital’s “private rules…may be evidence as to the appropriate standard of care to be provided by the defendants [and] offer a basis for claims of ordinary and gross negligence,” citing Godsey and Pullen as authority. “See also Graves v. Gulmatico, No. CA 83-0679-R (E.D. Va. Sept 4, 1984)(Judge D. Dorch Warriner ruled that the Hospital and Medical Staff Bylaws were not only admissible exhibits in a case against a physician, but represented some of the best evidence of the applicable standard of care).” Finally, in Garner v. Sentara Norfolk Gen. Hosp. in 2001, Judge Taylor ruled that PP&P were admissible by the patient if the defense expert relied on them for SOC.

Virginia Hospitals & Healthcare Association (“VHHA”) is the activist trade association whose self-proclaimed “core mission” is influencing legislation, and most recently was behind 2007 H.B. 3090 and companion 2008 H.B. 382 to overturn Riverside legislatively. Cursory review of VHHA’s website shows that its roughly 100 institutional members are dominated by a small number of giant healthcare systems: Bon Secours, Sentara, INOVA, Carillion, and Riverside. Thus, especially PP&P from representative members of those Virginia healthcare Goliaths genuinely do evince the SOC prevailing in the Commonwealth of Virginia as a matter of fact, so definitely should not be excluded.