Virginia Injury Attorney Blog

This is seven 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.

III. PP&P ADMISSIBILITY

Like Federal Courts and other states, the Virginia Supreme Court continues to embrace a liberal test for admissibility of evidence. “Generally, a litigant is entitled to introduce all competent, material, and relevant evidence that tends to prove or disprove any material issue in the case, unless that evidence violates a specific rule of admissibility.” Relevance in particular has been defined broadly. “Every fact, however remote or insignificant, that tends to establish the probability or improbability of a fact in issue is relevant.”

In opposing admissibility (and thereby indirectly discoverability), healthcare defendants invariably call upon the dynamic duo of Pullen v. Nickens and Virginia Ry. & Power Co. v. Godsey to presume their supposed “private rules” inadmissible. But Godsey-Pullen is an anachronism that is overgeneralized and misapplied. Healthcare PP&P actually are admissible for numerous reasons.

A. Godsey-Pullen should be overturned as an erroneous minority anachronism.

Pullen reaffirmed the World War I ruling of Godsey. But Godsey-Pullen was criticized immediately: “The reasons and rationale that supported the rule of inadmissibility in 1915, the year that Godsey was decided, have been somewhat blunted in recent years.”

“[O]ne of the arguments in support of the Godsey decision of 1915 was the expressed observation that the majority rule then in vogue in the nation prohibited the introduction of a company’s private rules. Since then, however, the climate has changed substantially.” By the 1980s alone, approximately three-quarters of the nation already had abandoned that old rule.

Another Godsey-Pullen argument – that the doctrine supposedly was necessary to encourage private rules – is dubious, particularly in the context of the current sophisticated regulated healthcare industry. The fact is that modern healthcare is steeped in rulemaking by and through numerous professional entities, wholly separate and apart from whether and to what extent Virginia continues archaically to subscribe to the minority “private rules” doctrine. Moreover, Virginia healthcare providers would expose themselves to more, not less, liability if they ever recklessly abandoned all private rules and practiced ad hoc.

The doctrine that fit in the nostalgic twilight of the horse and buggy almost a century ago – and that long since has been rejected as unsuitable by the overwhelming majority of states – now is flagrant error in the modern era of big institutional healthcare. The Virginia Supreme Court recently applying a modern “commercial business” realities analysis to limit the doctrine of “charitable immunity” and to deny it to big healthcare is consistent with rejection or at least amelioration of the Godsey-Pullen legal anachronism in the healthcare context.

Reversal of Godsey-Pullen naturally involves the doctrine of stare decisis. But in Oraee v. Breeding, a 2005 medical malpractice case, the Supreme Court of Virginia declared that it should not “perpetuate a mistake” based on that doctrine: “upon no sound principle do we feel at liberty to perpetuate an error into which either our predecessors or ourselves may have inadvertently fallen, merely upon the ground of such erroneous decision having been previously rendered.”