Virginia Medical Malpractice - a Lawyer's Publication (13 of 13)
This is the last 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.
IV. PP&P LEGISLATION
Section 8.01-581.17 was intended to balance the legitimate competing societal interests of disclosure to victim patients and of confidentiality for healthcare providers. That delicate balance is struck by rendering the actual deliberative process of covered committees privileged, while otherwise upholding patient access.
In the discrete context of PP&P, the analysis and debate, the drafting and revision, etc. of covered committees are protected. However, PP&P finally adopted for use by healthcare providers do not enjoy any protection.
An amendment to §8.01-581.17 should add new language to the following effect: “No policy, procedure, protocol or like private rule that has been adopted for use and/or used in fact by a healthcare provider shall be privileged; provided, however, that preliminary deliberation thereon and/or drafting thereof by a committee protected under §8.01-581.16 shall be privileged, unless a circuit court, after a hearing and for good cause arising from extraordinary circumstances being shown, orders their disclosure.” That is necessary and appropriate to clarify the pertinent Virginia law and to curb abuse of it.
Otherwise, privilege abuse will continue until a case finally percolates to the Supreme Court of Virginia and becomes the unquestioned law of the Commonwealth. When that landmark opinion is handed down, which likely will be sooner than later, healthcare providers again will prevail on the General Assembly for more protectionist legislation. As most recently with Riverside, the healthcare hew and cry will be that the highest court’s new decision is a maverick one from left field that radically changes existing law – when in fact, as elucidated by this article, it really just will exemplify the current majority rule of the numerous lower courts that reflects the gradual evolution of the law over decades. So it is time now to see and call the jurisprudence for what it actually is and, concomitantly, to legislate accurately based on the empirics and not on the hysterics.
