Virginia Injury Attorney Blog

This is eight 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.

B. The Godsey-Pullen “private rules” doctrine does not apply to PP&P.

Even if the archaic “private rules” doctrine is not abrogated, it is inapplicable to PP&P on several independent grounds. First, Godsey-Pullen applies only to a “litigant who is not a party to such rules,” and plaintiff patients and defendant healthcare providers qualify as parties to PP&P. Patients undeniably are the intended third-party beneficiaries of PP&P. “Patients are also parties to these [rules] as members of the public represented by government agencies which require and enforce health care standards for ‘the public welfare’.” Healthcare providers obviously are parties to the rules they promulgated.

Second, Godsey and Pullen are distinguishable on the facts. In Godsey, a street car accident victim introduced the company’s operation rules to fix the standard of duty to him. Similarly, in Pullen, a victim motorist introduced highway department maintenance guideline excerpts to fix the standard of duty. Neither Godsey nor Pullen involved an expert.

Hence plaintiffs in both Godsey and Pullen attempted to set the standard for negligence simply by bare introduction of the private rules alone. Specifically, they did not use any expert to establish the legal standard as an evidentiary foundation to introducing the private rules. Conversely, under Virginia’s Medical Malpractice Act, medical malpractice victims presumptively must rely upon expert testimony to establish the legal standard (and attest to the private rules as evidentiary and/or foundational examples). Thus, Godsey and Pullen are limited narrowly to similar fact patterns, which inherently are not characteristic of medical malpractice cases.

Third, the Godsey finding that there was “no evidence of any custom based upon [the particular private rules]” likewise is distinguishable too. Judge Annunziata cogently observed in 1990 that healthcare PP&P “materials . . . may properly be seen as reflecting widely-adopted standards established or required by third-party entities, such as the Joint Commission on Accreditation of Healthcare Organizations (“JCAHO”).” Therefore, she explained, “to the extent the hospital’s policies and protocols are reflective of industry custom and even statewide practices, they may be distinguished from the purely private rules held inadmissible by the Supreme Court in Pullen.”

Fourth, recently in Riverside, the Virginia Supreme Court distinguished rather than embraced Godsey-Pullen. “In this case, the evidence of the staff orientation instruction and nursing curriculum… were not hospital policies or procedures of the type involved in Godsey and Pullen.” Thus, Riverside suggests that the Virginia Supreme Court at worst is applying Godsey-Pullen narrowly and at best is distancing from it altogether.