Virginia Injury Attorney Blog

This is 10 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.

D. PP&P are admissible as “vicarious liability” evidence.

In Christian v. Loudoun Hosp. Ctr., the patient sought healthcare providers to identify “each and every rule, regulation, by-law, or other document promulgated by any hospital, association, public authority, licensing authority or other government or private organization which was applicable to or descriptive of the standard of care owed by Karen Asbury, RN or any of your other employees and/or agents in the provision of healthcare to the plaintiff,” and to provide copies of the same. Defendants in Christian unsuccessfully objected that the responsive “material is irrelevant, unlikely to lead to discovery of admissible evidence, and otherwise protected from discovery by the attorney-client privilege, the attorney-work product doctrine and Virginia Code § 8.01-581.17.”

The defense asserted that Christian was controlled by Levin, even though Levin had nothing to do with PP&P and was placed its proper context by Riverside. As a threshold matter, the court in Christian rejected the amorphous jingoistic defense mantra that PP&P was “confidential” for “safety and quality”. Judge Horne declared, “It has nothing to do with the quality of healthcare providers.”

The court in Christian then rejected the stock defense assertion of irrelevance. Judge Horne questioned the defense rhetorically, “If you don’t have access to those, how are you going to be able to prove any agency relationship? Control is the central feature of that.” Based on “claims of vicarious liability” for the agency nurse, PP&P were held “relevant to issues of employment, agency and control”. This evolution in judicial thinking on PP&P by Judge Horne from his initial opinion in Mangano v. Kavanaugh in 1993 to his recent Bench comments and Order in Christian in 2006 is a noteworthy contribution to the tidal wave of judicial scrutiny that continues to swamp boatloads of unsupportable defense buzzwords and misrepresentations.

Christian also is buttressed by Broaddus v. Standard Drug Co., a 1971 Virginia Supreme Court opinion. In Broaddus, the private written manual and oral instructions of a contractor detective agency were admitted on the issue of whether the individual tortfeasor was acting within the scope of employment for purposes of importing vicarious liability.

E. PP&P are admissible as “sovereign immunity” evidence.

The Virginia Supreme Court in James v. Jane and progeny mandated a four-part test of sovereign immunity in medical malpractice cases. In Houchens v. Rector and Visitors of the Univ. of Va., the court found that “the extent to which the [defendant] nurses were or were not obligated to abide by standing orders, protocols, or manuals is relevant to the determination of sovereign immunity.” Since employee discretion and employer control and direction were elements of the four-part sovereign immunity test, the court ordered PP&P production at the discovery hearing and reserved ruling on ultimate admissibility for trial.