Medical Malpractice: Va. Code Ann. § 8.01-581.17 – a Lawyer’s Overview
Toward frustrating medical malpractice claims, hospitals, nursing homes and other healthcare institutions routinely keep “double books” about personal injury incidents – a laundered “patient chart” and other trenchant facility records about the patient. Healthcare institutions routinely withhold the latter from patients, claiming statutory quality-care/peer-review privilege under Va. Code Ann. §8.01-581.17. But Avery T. “Sandy” Waterman, Jr., Esq. champions victim patient rights and debunks ostensible privilege in succeeding posts.
The “statutory language [of §8.01-581.17] is clear, unambiguous, and unqualified.” HCA Health Servs. of Virginia, Inc. v. Levin, 260 Va. 215, 220 (2000). “When statutory language is clear and unambiguous, there is no need for construction by the court; the plain meaning of the enactment will be given it. Courts must give effect to legislative intent, which must be gathered from the words used, unless a literal construction would involve a manifest absurdity.” Id.
8.01-581.17 “provides a privilege in plain language which is limited narrowly to medical staff committees, utilization rule committees, and other committees specified in § 8.01-581.16.” Klarfeld v. Salsbury, 233 Va. 277, 284 (1987)(italics in original)(underlining added). “[T]he scope of § 8.01-581.17 is more limited [than § 8.01-581.16]. Stated differently, § 8.01-581.17 does not include an ‘other entity’ referred to in § 8.01-581.16 which is not a ‘committee’.” Id.
“Ambiguities in the [medmal] statutes should not be extended to enlarge the privilege.” Johnson v. Roanoke Mem’l Hosps., Inc., 9 Va. Cir. 196, 199 (Roanoke 1987). “Any ambiguities in [§ 8.01-581.17] must be strictly construed for, as the U.S. Supreme Court has noted, ‘exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth’. United States v. Nixon, 418 U.S. 683, 709-10 (1974).” Curtis v. Fairfax Hosp. Sys., Inc., 21 Va. Cir. 275, 277 (Fairfax 1990). Recently writing for the Virginia Supreme Court, Justice Lemons reiterated that a statute (such as §8.01-581.17) “in derogation of the common law… must be ‘strictly construed and not…enlarged in [its] operation by construction beyond [its] express terms’.” Univ. of Va. Health Servs. Found. v. Morris, 275 Va. 319 (2008)(Lemons, J.)(denying immunity to a hospital healthcare provider in the context of medical malpractice).
Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), a landmark medical malpractice case of Mr. Waterman, held “communications … provided to” covered committees were “not privileged”; “factual information of patient care” is not confidential or privileged; and use of factual patient care information in the peer review or quality care committee process does not render it privileged. “These limitations on the application of the privilege are consistent with preserving the confidentiality of the quality review process while allowing disclosure of relevant information regarding specific patient care and treatment. *** It is the deliberative process and the conclusions reached through that process that the General Assembly sought to protect. *** The deliberative process involving evaluation of patient safety conditions and the design of initiatives to improve the health care system both necessarily begin with factual information of patient care incidents occurring within the health care facility. The use of this factual information in some way in the peer review or quality care committee process alone is insufficient to automatically cloak such information with the protection of no-disclosure. Factual patient care information that does not contain or reflect any committee discussion or action by the committee reviewing the information is not the type of information that must ‘necessarily be confidential’ in order to allow participation in the peer or quality assurance review process. Rather such information is the type, contemplated by Subsection (C) of Code §8.01-581.17, which the General Assembly has specifically instructed should not be brought within the scope of those items entitled to the privilege under any other part of the section. Applying these principles, we conclude that the documents at issue here are of the nature of those described in Code §8.01-581.17(C) and are not privileged.” 272 Va. at 532-533 (emphasis added). Cf., Stevens v. Lemmie, 40 Va. Cir. 499, 508 (Petersburg 1996)(Lemons, J.).
Judge Pugh delineated the post-Riverside presumptive discoverability of incident “facts” versus committee “conclusions,” decrying that with continued blanket claims of confidentiality and privilege the patient “will never get anything. And the system cannot work that way. “And I think that the [Riverside v.] Johnson case speaks to the issues of you [healthcare providers] having information saying it’s privileged, and then you [as judge] discover that the information, once it is given, doesn’t coincide with what you were told. And that’s not fair. So I just want to be fair to both litigants. * * * And if it’s fact based, I don’t care it it’s in a quality control document or not, if it’s fact based, [patient is] entitled to it. Now, when we start talking about conclusions, what the members of the committee may have said, you know that’s not going to be admitted unless for exceptional circumstances which we all know. You know, work product, you know, most of these things aren’t kept in contemplation of litigation. They aren’t. It’s a day-to-day transaction. * * * That’s factual. Now, when you get to the committee if in fact there is a write-up factually as to what happened, he’s entitled to it. But he is not entitled to the conclusions and anything dealing with quality control and how to better provide nursing services. You know that. Why do we have to deal with all of this? I mean, why?” See, 1/30/08 Morel v. Mary Immaculate Hearing Transcript Excerpt at 20.2-21.17. “But as I said, you’re entitled to the facts, I don’t have any problems with that. * * * Those items, those incident reports or similar reports or whatever that clearly you should not have any objection to, I would ask that you submit them to Mr. Waterman.” Id. at 24.2-21. See also, 5/5/08 Morel v. Mary Immaculate Order at 2 and 5 (reiterating and applying the distinction between patient “facts” and committee “deliberations”).
Judge Tench correctly gaged the sweep of Riverside in another medical malpractice case: “Frankly… after reading [Riverside v.] Johnson fairly carefully, reading some background information on this too, and reading some other cases and some law reviews and some updates and so forth, I’m somewhat of the belief that the [Virginia] Supreme Court does nor will allow any factual information in any of those reports to be released to the patient.” See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 33.17-24 (emphasis added).
Post-Riverside courts similarly find unprotected are incident report databases, see, e.g., 6/24/08 Shakshober v. Riverside Order; 8/3/07 Licare v. Riverside Order; 7/23/07 Seibert v. Riverside Second Order; and 2/15/05 Riverside v. Johnson Order; “sentinel event” reports and other investigative materials. See, e.g. , 8/3/07 Licare v. Riverside Order; 7/23/07 Seibert v. Riverside Second Order; 1/8/02 Brown v. Riverside Order; and 5/5/08 Morel v. Mary Immaculate Order at 3-4. So healthcare institutions have been seeking to overrule Riverside for medical malpractice cases by special interest legislation.
