Virginia Medical Malpractice – a Lawyer’s Publication (6 of 13)
This is six 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.
II. PP&P ABUSE
As indicated, healthcare defendants typically deny patients their PP&P on claims of privilege, inadmissibility and irrelevance. Despite the claimed irrelevance to the medical malpractice suit, however, healthcare defendants still privately provide their PP&P to their litigation experts and even to some fact witnesses to influence them by the same.
Garner v. Sentara Norfolk Gen. Hosp. in 2001 examplifies the modus operandi of healthcare providers for floating their PP&P litigation dichotomy, as well as the ends to which the defense resorts to protect it. Patient requested, Defendant objected to producing, and Plaintiff moved to compel “standards, guidelines, policies and procedures”; and the matter was deferred to the trial judge by the discovery duty judge.
Plaintiff then subpoenaed and deposed Defendants’ lead standard of care expert, Nurse Cox. Nurse Cox acknowledged defense counsel having given her Sentara’s fall prevention policy to review in conjunction with the patient’s chart and pleadings. But in Garner, defense counsel affirmatively subverted the healthcare providers’ expert responding to the patient’s deposition Subpoena Duces Tecum for PP&P in her possession: he had her turn over Sentara’s policy to him immediately before her deposition, and then refused to provide it to the patient despite still having it at hand.
Nurse Cox testified that Sentara’s policy she reviewed set the standard of care (“SOC”); that she believed the defendant nurse had fulfilled the policy and, thereby, met the SOC; and that if the nurse did not do everything stated in the policy, she fell below the SOC. Nurse Cox testified further vis-à-vis the prevailing SOC that she had not reviewed her own hospital’s policy in quite a while, and that she had not been provided and was not familiar with any other hospital’s policy.
Thus, Garner exposes the defense effectively introducing healthcare PP&P, claiming full compliance therewith, and asserting SOC met orally; and by continually denying patient access to any written PP&P, precluding any impeachment or cross-examination (such as about defense counsel and/or expert misstating, leaving out and/or minsunderstanding something). That “do as I say, not as I do” defense dichotomy not only leaves the patient unfairly to fight the instant case with one arm tied behind back, but also keeps all patients in the dark generally and precludes their aggregation, exchange and comparison of PP&P, i.e., precludes patients from documenting by PP&P what prevails statewide – from examplifying SOC through multiple PP&P.
Based on Nurse Cox’s deposition in Garner, the patient noticed her motion to compel production of PP&P and, alternatively, moved in limine to exclude defendants “making any oral reference to the hospital’s policy and/or protocol, let alone claiming compliance with the same and meeting the standard thereby”. At hearing, Judge Taylor held that Sentara’s PP&P were discoverable and, if Nurse Cox relied on them for SOC (as she did), that PP&P were admissible too. The patient next named Nurse Cox as a potential witness and served a trial subpoena, which the defense sought to avoid by moving to quash. Shortly thereafter, Garner was resolved and dismissed.
