Virginia Injury Attorney Blog

Defendant Assistant Principal also seeks to interpose Va. Code Ann. §15.2-248 in Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. But that statute’s "presentment requirement likewise is inapplicable to that brain injury suit on a few independent grounds.

The analysis of §15.2-1248 is analogous to much of that for §15.2-209, posted yesterday. §15.2-1248 must be strictly construed because its presentment requirement is in derogation of the common law. Morris, supra. Also, by its own language, §15.2-1248 is strictly limited only to actions against an employee of a “county;” and this cause is against a different entity, the School Board. Further, regardless whether it applies to a School Board, §15.2-1248 does not apply to claims against an individual, let alone a School Board employee.

In Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Circuit Court for Gloucester County, Virginia, inter alia Defendant Assistant Principal seeks to interpose Va. Code Ann. §15.2-209. But the statute’s “notice” requirement is inapplicable to this brain injury case on several independent grounds.

§15.2-209 was passed in the 2007 session of the General Assembly and did not become effective until July 1, 2007. Hence it does not apply retroactively to causes of action accruing before that date.

§15.2-209 as a statute “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, 332 (2008). It also must be strictly construed because §15.2-209 so states expressly. See, §15.2-209(G). Such strict construction limits the applicability of §15.2-209 in several significant ways.

First, by its own language, §15.2-209 is strictly limited only to a claim for simple “negligence”. See, §15.2-209(A). It does not apply to claims of recklessness or gross negligence.

Second, by its own language, §15.2-209 applies only to a “county, city, or town,” not to a “school board”. §8.01-222 was the predecessor of §15.2-209: §8.01-222 was repealed incident to §15.2-209 being enacted by 2007 Senate Bill 913, approved March 15, 2007. §8.01-222 covered only a “city” or “town”. §15.2-209 added only a “county”. If the General Assembly meant to cover a “school board,” it could, should and would have done so in its new enactment; but it did not.

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Sometimes an unscrupulous adversary lulls another into a false sense of security and inaction, and then seeks to capitalize on technicalities implicated thereby, such as time deadlines missed by the unsuspecting victim. Fortunately Virginia courts are empowered to resolve such injustices based on equity instead of on legal technicalities.

“Courts of equity will not permit a party by his or her words and conduct to manipulate judicial proceedings in a manner that will work an injustice by inducing the adverse party not to defend the cause. Estoppel by conduct, whereby a party will not be heard to deny that which he has induced others to rely upon as true, extends without limit throughout the law.” Emrich v. Emrich, 9 Va. App. 288, 293-294 (1989).

“The general rule of equitable estoppel, or, as it is frequently called, estoppel in pais, is that when one person, by his statements, conduct, action, behavior, concealment, or even silence, has induced another, who has a right to rely upon those statements, etc., and who does rely upon them in good faith, to believe in the existence of the state of facts with which they are compatible, and act upon that belief, the former will not be allowed to assert, as against the later [sic], the existence of a different state of facts from that indicated by his statements or conduct, if the latter has so far changed position that he would be injured thereby.” Id. at 294.

“Trial courts clearly have a duty to inquire further when allegations of fraud and deceit are alleged with specificity, as they were here.” Id. at 295. “While Rule 2:17 dispenses with notice to defendants of any subsequent proceedings against whom a bill of complaint is taken for confessed, a bill of complaint for divorce or annulment is never taken for confessed. Id. at 296.

The General Assembly enacted the Statute of Frauds, making certain oral contracts unenforceable. It explicitly required a contract be “in writing and signed by the party to be charged” in enumerated cases. Va. Code Ann. § 11-2.

For well over a century however, the Commonwealth’s Courts have relaxed that strict statutory requirement of a signed writing to avoid manifest injustice. Specifically, Courts have applied the equitable doctrine of partial performance to the Statute, ameliorating its harsh consequences. E.g., Runion v. Helvestine, 256 Va. 1, 6-8 (1998); Glovier v. Dingus, 173 Va. 268, 280-283 (1939); Clarke v. Collins, 73 Va. Cir. 12, 17 (Lynchburg Oct. 4, 2006); Grant v. Grant, 67 Va. Cir. 412, 414 (Roanoke Jun. 15, 2005); Net Connection v. GWBEH, L.L.C., 67 Va. Cir. 150, 152 (Fairfax Mar. 8, 2005); Fauntleroy v. Borden, 63 Va. Cir. 144, 145-147 (Richmond Sep. 23, 2003).

Following Wright v. Puckett, 63 Va. (22 Gratt) 370 (1872), the Virginia Supreme Court reiterated in Glovier and again in Runion. "[T]he principles upon which courts of equity have avoided the statute of frauds, upon the ground of part performance of a parol agreement, are now as well settled as any of the acknowledged doctrines of equity jurisprudence. From the numerous decisions on the subject the following principles may be extracted and briefly stated as follows: 1st. The parol agreement relied on must be certain and definite in its terms. 2nd. The acts proved in part performance must refer to, result from, or be made in pursuance of the agreement proved. 3rd. The agreement must have been so far executed that a refusal of full execution would operate a fraud upon the party, and place him in a situation which does not lie in compensation. Where these three things concur, a court of equity will decree specific execution." 256 Va. at 6; 173 Va. at 280. Fauntleroy, 63 Va. Cir. at 145. Therefore, grants of demurrers were reversed in Glovier and Runion.

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The purposes of the Statute of Frauds simply are to provide reliable evidence of the existence and terms of certain covered contracts and to reduce the likelihood that they can be created or altered by perjury or fraud. E.g., Lindsay v. McEnearney Assocs., 260 Va. 48 (2000). Consequently, the Statute of Frauds never is enforced when the effect thereof would be to perpetrate a fraud or other wrong. E.g., Troyer v. Troyer, 231 Va. 90 (1986); Murphy v. Nolte & Co., 226 Va. 76 (1983); T… v. T…, 216 Va. 867 (1976); and Reynolds v. Dixon, 187 Va. 101 (1948). Thus, even in actions at law, the doctrine of equitable estoppel bars the assertion of a Statute of Frauds defense where there has been reasonable material detrimental reliance. E.g., Tidewater Beverage Servs., Inc. v. Coca-Cola Co., 907 F.Supp. 943 (E.D. Va. 1995)(Virginia law); Nargi v. Camac Corp., 820 F.Supp. 253 (W.D. Va. 1992)(Virginia law); T… v. T…, 216 Va. 867 (1976).

The Statute of Frauds does not require any particular form of writing or other writing formality whatsoever. It simply mandates a “writing and signed by the party to be charged”. Va. Code Ann. §11-2. And for about 100 years, the Virginia Supreme Court liberally has accepted all manner of writings. E.g., Yaffe v. Heritage Sav. & Loan Assn., 235 Va. 577 (1988)(auctioneer’s memo); Troyer v. Troyer, 231 Va. 90 (1986)(divorce deposition); Fanney v. Virginia Inv. & Mtg. Corp., 200 Va. 642 (1959)(stockholder resolution); Browder v. Mitchell, 187 Va. 781 (1948)(court pleading); Horner v. Holt, 187 Va. 715 (1948)(payment receipt); Reynolds v. Dixon, 187 Va. 101 (1948)(letter); American Surety Co. of New York v. Commonwealth, 180 Va. 97 (1942)(bond receipt); Boston v. Dejarnette, 143 Va. 591 (1930)(land deed); Radford Water Power Co. v. Dunlap, 128 Va. 658 (1920)(telegram); Croghan v. Worthington Howe Co., 115 Va. 497 (1913)(acceptance letter); and Newport News, Hampton & Old Point Dev. Co. v. Newport News St. Ry, 97 Va. 19 (1899)(board resolution).

Also, the Statute of Frauds does not require the writing itself constitute the whole contract. It need only state essential terms. E.g., Troyer v. Troyer, 231 Va. 90 (1986); Murphy v. Nolte & Co., 226 Va. 76 (1983); Fanney v. Virginia Inv. & Mtg. Corp., 200 Va. 642 (1959); Browder v. Mitchell, 187 Va. 781 (1948); and Reynolds v. Dixon, 187 Va. 101 (1948).

Additionally, the Court does not even require that the “writing” actually be a single integrated writing. The “writing” can be several or more separate writings, only one of which is signed. E.g., In re LCS Homes, Inc., 103 B.R. 736 (E.D.Va. 1989)(Virginia law); Hewitt v. Hutter, 406, F.Supp. 976 (W.D.Va. 1975)(Virginia law); American Indus. Corp. v. First and Merchants Natl Bank, 216 Va. 396 (1975); Reynolds v. Dixon, 187 Va. 101 (1948); J. S. Salyer Co. v. Doss Coal Co., 157 Va. 144 (1931); and Radford Water Power Co. v. Dunlap, 128 Va. 658 (1920).

Further, although the Statute of Frauds recites that the writing must be “signed,” an actual signature is not necessary. E.g., Barber & Ross Co. v. Lifetime Doors, Inc., 810 F. 2d 1276 (4th Cir.)(1987), cert. denied 108 S. Ct. 86, 484 U.S. 823, 98 L.E. 2d 48 (1988); Radford Water Power Co. v. Dunlap, 128 Va. 658 (1920). In Barber, printed sales brochures with the maker’s trademark sufficiently authenticated the documents. Similarly, Radford Water Power involved telegrams bearing the name of the maker. Indeed, final delivery of the “signed” writing is not even required. E.g., Boston v. Dejarnette, 153 Va. 591 (1930); and Chiles v. Bowyer, 127 Va. 249 (1920).

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On February 23, 2009, Gloucester Circuit Court ruled that a Plaintiff brain injury victim was entitled to all school records concerning his attack, despite Gloucester High School keeping them solely in the files of his attacker, another student named Co-Defendant with its Assistant Principal. The case is Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572.

Assistant Principal Burns and the Gloucester County School Board had sought to keep the investigative records secret, claiming Va. Code Ann. § 22.1-287 imbued them with “privilege”. However, §22.1-287 only subjects such records to certain limitations (versus absolute privilege), and specifically excepts involved students, their parents, and judicial discovery.

Plaintiff brain injury victim successfully relied on Bunch v. Artz, 71 Va. Cir. 358 (Portsmouth Aug. 15, 2006), the leading opinion applying §22.1-287. In Bunch, school pupil records were subject to the ordinary rules of discovery and ordered produced.

Newport News Circuit Court ruled on discovery matters in a patient fall suit, Shakshober v. Riverside Hospital, Inc., alleging medical malpractice and resulting brain injury. That was at contradictory hearing on February 9, 2009.

The primary sweep of the impending Discovery Order was disgorging from Riverside materials and of its Nursing Schools. Included were materials, other information and witnesses on Nursing School policies, procedures, protocols, presentations, and all teaching or instruction about patient falls.

Having its Nursing Schools’ material, information and testimony helps greatly in exposing the truth about what goes on vis-à-vis nursing error and holds Riverside to it. Evidence which otherwise arguably may not be introduced in a medical malpractice case when offered as that of the Riverside entity employing a substandard nurse, still may be admissible as that of Riverside’s Nursing Schools. Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 528-530 (2006).

Secondarily, but importantly, the Discovery Order compels Riverside to tender appropriate corporate representatives for deposition. Riverside unfairly continues not to tender its most knowledgeable personnel for its deposition, which dodges patient fall and other medical malpractice victims pinning down the corporation in testimony.

Virginia defense counsel can file a Motion to Strike various aspects of a lawsuit in vehicle accident, sexual abuse, product liability, premises liability, and all other personal injury cases. Such Motions may strike at particular claims, exhibits, etc.

A Motion to Strike “requires the trial court to accept as true all the evidence favorable to the plaintiff as well as any reasonable inference a jury might drawn therefrom which would sustain the plaintiff’s cause of action.” Green v. Ingram, 269 Va. 281, 290 (2005)(grant of motion to strike for sovereign immunity on claim of gross negligence reversed and remanded). The court “is not to judge the weight and credibility of the evidence, and many not reject any inference from the evidence favorable to the plaintiff unless it would defy logic and common sense.” Id. “At trial court should resolve any reasonable doubt as to the sufficiency of the evidence in the plaintiff’s favor and should grant the motion only when ‘it is conclusively apparent that [the] plaintiff has proven no cause of action against defendant’.” Id.

Virginia defense lawyers can demur that a lawsuit fails to state a legally cognizable claim in vehicle accident, wrongful death, brain injury, and all other personal injury cases. Although a Demurrer does not admit purely legal conclusions, it does admit all pleaded facts, and inferences therefrom; and plaintiffs need not show that they will prevail on the merits. E.g., Tronfeld v. Nationwide Mutual Ins. Co., 272 Va. 709, 713 (2006)(grant of demurrer reversed and remanded); Koffman v. Garnett, 265 Va. 12, 14 (2003)(reversing demurrer to second amended motion for judgment alleging gross negligence exception to sovereign immunity of school board employee).

“The purpose of a demurrer [simply] is to determine whether a Motion for Judgment states a cause of action upon which the requested relief may be granted.” Tronfeld, 272 Va. at 712. “A demurrer tests the legal sufficiency of facts alleged in pleadings, not the strength of proof. We accept as true all facts properly pleaded in the bill of complaint and all reasonable and fair inferences that may be drawn from those facts.” Hubbard v. Dresser, Inc., 271 Va. 117, 119 (2006)(grant of demurrer reversed and remanded)(quoting Glazebrook v. Board of Supervisors of Spotsylvania County reversing and remanding grant of demurrer).

Virginia defense attorneys can interpose a wide variety of potentially dispositive issues on Special Plea in Bar in vehicle accident, brain injury, wrongful death, and all other personal injury cases. On Plea, the asserting party bears the burden of proof on the issue raised. E.g., Geographic Network Affiliates-Int’l, Inc. v. Enterprise for Empowerment Fund at Norfolk St. Univ., 68 Va. Cir. 185, 187 (Norfolk Jan. 27, 2005); Robinson v. McLeod & Co., 59 Va. Cir. 154 (Roanoke Jun. 4, 2002).

“Upon agreement of the parties, [the plea] issue may be submitted, with an identified body of facts, for the trial court’s determination.” The Kroger Co. v. Appalachian Power Co., 244 Va. 560, 562 (1992). Where the Plea is decided on the pleadings, “we state as true the facts alleged in the motions for judgment and all reasonable inferences to be drawn therefrom.” Adkins v. Dixon, 253 Va. 275, 277 (1997). Geographic Network; Robinson.

Of course, the Constitution of Virginia guarantees a party that “a jury will resolve disputed facts”. Bethel Investment Co. v. City of Hampton, 272 Va. 765, 769 (2006). Hence a trial judge errs if he decides disputed facts on Plea when plaintiff demands a jury. Id. at 770 (reserving and remanding a plea sustained).

Virginia jurisprudence holds that an owner may be liable for “negligent entrustment” by permitting an unfit driver to use his vehicle if it causes a vehicle accident. “The correct test of liability is whether the owner knew, or had reasonable cause to know, that he was entrusting his car to an unfit driver likely to cause injury to others.” Denby v. Davis, 212 Va. 836, 838 (1972).

In Denby, weak, though not inherently incredible, testimony was “sufficient to show that Denby turned over his car to Pretlow with reason to know that Pretlow would use it and with knowledge that Pretlow had no operator's permit and was physically unfit to drive an automobile without endangering himself and others [because of his impaired vision]”. Id. at 839. By its verdict for the plaintiff, the jury impliedly found that both Pretlow’s impaired vision and Denby’s negligent entrustment were proximate causes of the accident. Id.

The Virginia Supreme Court found sufficient evidence and jury instructions to uphold the jury verdict. Hence the vehicle owner was held liable for the wrongful death resulting from the vehicle accident in Denby.

Some parents and others allow underage children to drive the family car. But by Virginia statute, that exposes them to personal liability for vehicle accidents.

Va. Code Ann. §8.01-64 reaches any owner who allows and any other person who furnishes a minor who is under 16 years old and lacks a valid driver’s permit a motor vehicle to use. Such owners and others are liable with the minor for all damages negligently caused by vehicle accident.

Under Va. Code Ann. §8.01-65, proof of vehicle use without the owner’s “knowledge or consent, express or implied,” is a defense to liability. But the owner bears the burden of proving that.

Such vehicle entrustment to underage children also may implicate insurance coverage for vehicle accidents. Speak to the insurance agent – better yet, never entrust so!

Under Virginia common law, motor vehicle operators are liable for all wrongful death, personal injury, and property damages caused by their negligence. Under Virginia statute, they also are liable for exemplary (or punitive) damages for malicious or willful or wanton conduct showing a conscious disregard for the rights of others. Va. Code Ann. §8.01-44.5.

Significantly, willfulness or wantonness under §8.01-44.5 can be satisfied by proof of intoxication under certain circumstances. Specifically, a motor vehicle operator is sufficiently willful or wanton if: (1) he has a blood alcohol concentration of at least 0.15 percent; (2) knew or should have known his ability to operate was impaired; and (3) his intoxication proximately caused wrongful death or personal injury.

A plaintiff bears the burden of proving intoxication. However, if a motor vehicle operator unreasonably refuses a blood alcohol test required by §18.2-268.2, then a plaintiff still may prove intoxication by the operator’s conduct or condition.

A Virginia motorist faces potential liability for a vehicle accident that injures bicyclist. Avery T. “Sandy” Waterman, Jr., Esq. has filed suit in the Newport News Division of United States District Court and recovered $350,000.00 for wrongful death of a bicyclist struck by a York County bus. McCormick v. White, No 4:97cv44 (E.D. Va.).

The recumbent bicyclist in McCormick just had dipped his wheels in the Atlantic to start a cross-country trek to the Pacific when he was rear-ended by a school bus on the Colonial Parkway near Yorktown. The victim suffered a fatal brain injury.

The only surviving witness to the McCormick vehicle accident was the bus driver. Roadway, bicycle, and bus data controverted the self-serving account of the Defendant.

Mr. Waterman retained a civil engineer to survey the Colonial Parkway, bicycle and bus, and a physicist/animator to input and calculate data. The end-product was an extraordinary video that convincingly animated the vehicle accident scenario.

The McCormick wrongful death suit settled promptly after the video animation was provided to the defense by Mr. Waterman. The settlement was reported by Virginia Lawyers Weekly.

Many motorists have a bad attitude about bicyclists, horsemen, and others non-motorists riding on the state highways, incorrectly thinking they have no business being on the road. But Virginia law is clear that bicyclists, horsemen, and some other vulnerable riders have equal rights to the road, so a vehicle accident with them may be the motorist’s fault.

"Every person riding a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, moped, or an animal or driving an animal on a highway shall . . . have all of the rights and duties applicable to the driver of a vehicle . . . .” See, Va. Code Ann. § 46.2-800. Indeed, in Virginia local ordinance may prohibit bicyclists from riding on sidewalks and crosswalks, forcing them onto the highways. See, e.g., § 46.2-904.

Of course, bicyclists have some special highway limitations. Generally, they must “ride as close as safely practicable to the right,” must “move into a single file formation as quickly as practicable when being overtaken,” see, § 46.2-905; must not carry any article that “prevents… keeping at least one hand on the handle bars,” or “carry more persons at one time than the number of persons for which [the bicycle] was designed” (except a child under 6 years old in special seat or trailer), see, § 46.2-906; and by local ordinance if under 14 years old may have to wear a special helmet. See, § 46.2-906.1.

Despite overwhelming statistics that seatbelt use greatly reduces wrongful death and brain injuries in car accidents, some drivers and passengers make up unfounded excuses for not wearing them. Some common erroneous thinking is:

A. I am, or am riding with, a good driver;

B. I am not driving far from home;

C. I am not driving on the highway; and

D. I rather be thrown away from the crash than trapped inside the vehicle.

A military “Safety Training 2005” publication based on statistics from the National Highway Transportation Safety Administration states the real facts:

1. Even good drivers have vehicle accidents beyond their control due to vehicle, weather, road and/or other driver conditions;

2. Most vehicle accidents happen within 25 miles of home;

Continue reading " Car Accidents, Wrongful Death & Brain Injury – A Lawyer’s Facts " »

Car accidents occur constantly. But many crash-related wrongful deaths and brain injuries can be avoided by wearing seatbelts.

In September, 2008, the National Highway Transportation Safety Administration (“NHTSA”) noted for passenger vehicle accidents: “Research has found that lap/shoulder seat belts, when used reduce the risk of fatal injury by front-seat passenger car occupants by 45 percent and the risk of moderate-to-critical injury by 50 percent. In 2006 alone, seat belts saved an estimated 15,383 lives.”

NHTSA statistics show general seat belt usage up incrementally and wrongful deaths decreasing. This Valentine’s Day, be sure that your loved ones and you “buckle up” to minimize the chance of wrongful death and brain injury.

Healthcare providers uniformly have resisted production of factual patient care records they claim ostensibly are “quality care” and/or “peer review” papers. But they uniformly have lost under Va. Code Ann. §8.01-413 in pending but unserved medical malpractice cases.

Mary Immaculate (thrice), Riverside (twice), Sentara (once), and Carilion (once) has lost contesting the applicability of § 8.01-413(B) to “quality care” and/or “peer review” materials and the propriety of §8.01-413(C) subpoena enforcement during medical malpractice suit. At hearing on March 15, 2007, Williamsburg/James City Circuit Court “FINDS that § 8.01-413(C) is clear and prevails over Va. S. Ct. Rule 4:9(b) and that plaintiff’s Subpoena Duces Tecum is not procedurally flawed. The Court FINDS further that the case law is clear about incident reports and that the Quality Care Control Report in question does not appear to be privileged under Va. Code Ann. §8.01-581.76 or §8.01-581.17 or under Virginia’s ‘work product’ doctrine.” See, 4/30/07 Justis v. Sentara Order (emphasis added). Judge Ford rejected Sentara’s objections despite its Medical Affairs Vice-President and Quality Board Chairman testifying. Id.; 3/5/07 Justis v. Sentara Hearing Transcript Excerpt at 15. No incident report database, sentinel event report or investigative materials were at the issue in Justis.

Likewise, at hearing on July 10, 2007, Newport News Circuit Court “FINDS that § 8.01-413 is clear and prevails over Va. S. Ct. Rule 4:9(b); that the patient’s Subpoena Duces Tecum is not procedurally flawed; and that the patient’s Subpoena is proper. The Court FINDS FURTHER that ‘facts [and] information related to patient care’ are not privileged under Va. Code Ann. § 8.01-581.17 or work product doctrine.” See, 8/3/07 Licare v. Riverside Order (underlining added). Judge Tench ordered Riverside produce in camera “all ‘hospital records and papers’ … of or relating to the patient , Rosemary A. Licare, including particularly without limitation any Quality Management System database entries and any Sentinel Event Report, Root Cause Analysis , investigations email and/or other printed electronic materials whatsoever.” Id. (underlining added). Judge Tench then redacted and disseminated Riverside records. See, 10/31/07 Licare v. Riverside Judge’s Letter.

Similarly, at hearing on January 30, 2008, Newport News Circuit Court “FINDS that patient’s Va. Code Ann. §8.01-413(C) Subpoena Duces Tecum is proper on the ground a statute is superior to a rule, and …ORDERS… that Mary Immaculate Nursing Center, Inc. shall provide the patient all fact-based materials responsive to the Subpoena, even if claimed to be ‘quality’ ones”. See, 2/26/08 Morel v. Mary Immaculate Order at 1 (underlining added). Incredibly, Mary Immaculate had withheld 9 categories of documents – quality care reports, investigative files, incident logs, weekly fall committee meeting minutes, narrative reports, 24 hour nursing reports, fall data collection forms, daily communication tools, and skin tear investigative forms – with 6 of the 9 categories withheld proving to be 590 pages of purely fact-based patient records. Judge Pugh expedited to the bottom-line: “And if it’s fact based, I don’t care if it’s in a quality control document or not, if it’s fact based, he’s entitled to it.” See, 1/30/08 Morel v. Mary Immaculate Hearing Transcript Excerpt at 20.21-33 (emphasis added).

Another evidentiary hearing in Morel was held on April 7, 2008, because Mary Immaculate claimed another 56 pages of records about the patient’s care were protected. After in camera review and evidentiary hearing, Judge Pugh opined that most of those 56 pages were not privileged either for not being “associated with a protected committee,” not being “part of the deliberative process” and/or not being “made in anticipation of litigation”. See, 5/5/08 Morel v. Mary Immaculate Order at 2-4. Subsequently, Mary Immaculate supplemented with more ostensibly privileged records, astoundingly aggregating to over 700 pages with a medical malpractice case pending!

Continue reading " Medical Malpractice: Va. Code Ann. §8.01-413 – a Lawyer’s Application " »

Some healthcare providers strenuously deny the applicability of Va. Code Ann. §8.01-413(B & C) while suit for medical malpractice is pending. But tellingly, others have admitted its applicability, even with suit unserved.

After Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), Riverside thrice admitted the applicability of §8.01-413(B) to ostensible “quality care” records – all while medical malpractice suit was “pending”. First, for pre-suit and post-suit §8.01-413(B) requests in Shakshober v. Riverside, Riverside voluntarily produced multiple ostensible “quality care” papers. See, 11/16&21/06 & 3/17/08 Shakshober v. Riverside Letters of Waterman and Defense Counsel; 2/16/06 Shakshober v. Riverside Fall Quality Care Control Report (“QCCR”); 2/26/08 Shakshober v. Riverside Midas Risk Management Worksheets; 2/17/06 Shakshober v. Riverside Procedure/Practices Quality Care Control Report; 2/16/06 Shakshober v. Riverside Falls Abstraction Data Tool; and 2/26/08 Shakshober v. Riverside QMS Transaction Summary Report Excerpt.

Second, with another medical malpractice case, Seibert v. Riverside, pending in response to pre-service §8.01-413(B) request for incident reports, Riverside voluntarily provided the QCCR. See, Seibert v. Riverside 11/29/06 & 1/2/07 Letters of Waterman and Defense Counsel; and 7/14/05 Seibert v. Riverside RHS Quality Care Control Report. Riverside admitted its QCCR actually was created by its medical malpractice insurer; “contains factual information that is provided…in the ordinary course of its business”; and is “a factual record that pursuant to [8.01-581.17] now is discoverable.” See, 3/13/07 Seibert v. Riverside Hearing Transcript Excerpt at 13.13-24 & 21.3-8

Third, with yet another medical malpractice case, Licare v. Riverside, pending in response to Licare’s pre-service § 8.01-413(B) request for the deceased’s incident reports and database, Riverside belatedly provided voluntarily part of the Quality Management System (“QMS”) incident report database. See, 2/16/07, 2/27/07 & 7/2/07 Licare v. Riverside Letters of Defense Counsel to Waterman; and 2/5/07 Licare v. Riverside QMS Database Transaction Summary Report. At hearing, Riverside admitted: “it’s my understanding that that Indicator Text [of the database] is essentially a transposition of what was in the incident report [‘not currently in existence’].” See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 27.3-19.

Despite refusing to comply with Va. Code Ann. §8.01-413(B) in medical malpractice, wrongful death, vehicle accident, and other personal injury cases, some healthcare providers try to avoid enforcement by companion §8.01-413(C). Their threshold argument that statutory enforcement under §8.01-413(C) constitutes impermissible litigation discovery is unfounded.

Va. S. Ct. Rule 4:9 (c) is inapplicable to a statutory enforcement proceeding under §8.01-413(C). Most Subpoenas are issued pursuant to Rule 4:9(c) as litigation discovery. But a §8.01-413(C) Subpoena is different. Contrary to Rule 4:9(c) subpoenas, it enforces patient’s pre-service statutory right to healthcare provider “records or papers” without resort to ordinary litigation discovery after service. Significantly, §8.01-413(C) specifically directs issuance of this Subpoena pursuant to it as the sole remedy for non-compliance with §8.01-413(B).

It is hornbook law that a specific statute of the General Assembly takes precedence over general Rules of the Court. See, e.g., Virginia Constitution, Art. ¬6, Sec. 5. Indeed, Riverside and Mary Immaculate have so conceded on point in medical malpractice cases. See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 29.3-14; 1/30/08 Morel v. Mary Immaculate Hearing Transcript at 18.18-21. Further, it also is hornbook law that §8.01-413(C) and Rule 4:9(c) should be harmonized; and the only way to harmonize them is to recognize §8.01-413(C) as an entirely different and independent source of authority for issuance of a Subpoena from Rule 4:9(c) or, at the least, that §8.01-413(C) is a limited statutory exception to the general, Rule 4:9(c).

Holding Rule 4:9(c) superior and preemptive would eviscerate the clear letter and intent of §8.01-413(B&C), thereby encouraging, facilitating and countenancing potential and/or actual defendants to withhold all or at least key records or papers of victim patient plaintiffs in violation of statute. Also, in medical malpractice cases, it inequitably would force a patient plaintiff to meet his statutory pre-service expert certification requirements under §8.01-20.1 and/or §8.01-50.1 without the benefit of the facility records and papers to which he is entitled by statute, frustrating the same. Additionally, it violates the procedural and substantive due process rights of victim patients against offending defendants.

Medical malpractice, vehicle accident, wrongful death, product liability, premises liability, sexual abuse, and all other personal injury cases depend on complete prompt access of victims to their healthcare records. That critical access is guaranteed by Va. Code Ann. §8.01-413.

§8.01-413(B) requires provision of “records or papers” to a patient: “copies of hospital, nursing facility, physician’s or other health care provider’s records or papers should be furnished within 15 days of receipt of such request to the patient….” Notably, §8.01-413(B) speaks of all “records or papers,” not some amorphous “patient chart”. The latter just is an artificial construct of facilities, insurers and their lawyers; and self-servingly excludes whatever they choose. As Judge Tench observed in a recent medical malpractice case, “Medical records are much more than just the chart hanging there.” See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 38.16-23 (emphasis added). §8.01-413(B) is broad, encompassing and not susceptible of such convenient defense abuse.

§8.01-413(C) requires the patient in a pending civil case to issue a Subpoena for his records or papers if the healthcare provider fails to comply with a written request under §8.01-413(B). “[U]pon the failure … to comply with any written request made in accordance with subsection B…, the patient …may cause a subpoena duces tecum to be issued. The subpoena may be issued…in a pending civil case .... *** The subpoena shall be returnable within 20 days of proper service, directing the [healthcare provider] … to produce and furnish copies of the reports and papers to the clerk who shall then make the same available to the patient....” (emphasis added). The letter of §8.01-413(C) mandating enforcement through a “pending” case evinces the intent of companion §8.01-413(B) mandating provision of records and papers during a “pending” case. Also, the Court can award attorney’s fees, court costs and all other expenses for non-compliance. §8.01-413(C).

§8.01-413 is analogous to §2.1-340, et seq., with purpose, motivation and litigation status likewise being irrelevant. Va. Code Ann. §2.1-340, et seq. is the Virginia Freedom of Information Act (“FOIA”). The Virginia Supreme Court held “the purpose or motivation behind a [FOIA] request is irrelevant to citizen’s entitlement to requested information.” Associated Tax Servs., Inc. v. Fitzpatrick, 236 Va. 181, 187 (1988). Following Fitzpatrick, Justice Lemons ruled a requestor’s status as medical malpractice plaintiff was irrelevant to and did not disqualify her Virginia FOIA request. Stevens v. Lemmie, 40 Va. Cir. 499, 513-514 (Petersburg 1996). “The broad policy of FOIA mandates that public information be made available to all citizens regardless of their interest in the information,” wrote Justice Lemons. “This Court finds no exception to FOIA that precludes its use where the information sought may become evidence in a pending or contemplated civil suit.” Id. at 514. §8.01-413 is analogous to §2.1-340: it too reflects a broad exception-less policy mandating availability of information. A requestor’s litigation status under §8.01-413 likewise is irrelevant.

Another defense tactic in medical malpractice case is attempting to fabricate a distinction between “paper” and “electronic” records. But Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006), the landmark case of Avery T. “Sandy” Waterman, Jr., Esq., also upheld the admissibility of such electronic database materials, extensive discovery has exposed paper and electronic as the same, and courts have proved savvy.

Pre-Riverside, in Norfolk Circuit Court, Judge Jacobson found Sentara’s QCCR and prior “Annual Data Summaries and Incident Report excerpts” were not privileged. See, 2/12/01 Garner v. Sentara Order. Judge Taylor then ruled prior incidents as were “substantially similar” may be admissible in evidence on “notice”. See, 2/22/01 Garner v. Sentara Hearing Transcript Excerpt. Cf., Riverside, 272 Va. at 525-528. Sentara’s designated most knowledgeable person (“MKP”), its Risk Manager, testified about its database of all incidents and underlying software program, and produced database print-outs. See, 1/5/01 Garner Deposition of Sentara (Jacque Mitchell) Excerpt with Exhibits 1-6 Excerpts. Charlottesville Circuit Court found the incident “database” of University of Virginia’s Medical Center not privileged. See, Eppard v. Kelly, 62 Va. Cir. 57, 64-65 (Charlottesville 2003). Newport News Circuit Court found Riverside’s electronic QMS database of prior QCCRs was not privileged and was admissible, see, 2/15/05 Riverside v. Johnson Order; and 2/11/05 Riverside v. Johnson QMS Database; and was upheld by the Virginia Supreme Court.

Post-Riverside, Newport News Circuit twice again found Riverside’s electronic QMS database of incident reports was not privileged in medical malpractice cases. Judge Tench in Licare v. Riverside and Judge Pugh in Shakshober v. Riverside ordered production of all factual information in all Riverside database reports, even though Riverside previously had provided part of its QMS electronic database voluntarily. See, 8/3/07 Licare v. Riverside Order; and 6/24/08 Shakshober v. Riverside Judge’s Order.

Beginning in 1996, Riverside selectively inputted factual patient care information from its incident reports into a computer software program named the Quality Management System (“QMS”), and then destroyed its paper incident reports. See, 2006 Riverside v. Johnson Appeal Appendix Excerpt at 1717-1732. A Risk Management Consultant of The Virginia Insurance Reciprocal (“TVIR”), Riverside’s former long-time medical malpractice insurer, verifies that TVIR created the QMS software program; designed it to have paper incident report data inputted into it; and marketed and distributed it to Riverside and other members of the Virginia Hospitals and Healthcare Association (“VHHA”). See, 12/18/08 Shakshober v. Riverside Deposition of Colleen Lynch at 37.20-38.9 and 44.21-53.1. Since Riverside v. Johnson, Riverside has been using a new paper-less remote data entry “Midas System Manager (“Midas”) software, which now self-servingly tracks and calls “incident reports” as Quality Referrals. See, 7/23/07 Seibert v. Riverside Second Order at 1. Sentara too is a VHHA member and former long-time TVIR insured; and used a software program to input paper incident reports data. See, 1/5/01 Garner v. Sentara Rule 4:5(b)(6) Deposition of Sentara (Jacque Marshall).

Historically in medical malpractice cases, the defense enjoyed knee-jerk success with convincing Courts to treat so-called “sentinel event reports” differently than other “incident reports”. But that has changed this decade, and stands to erode further in the face of Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006), the landmark case handled by Avery T. “Sandy” Waterman, Jr., Esq.

In two of Mr. Waterman’s medical malpractice cases, Courts have ruled that the factual information of sentinel event reports is not protected. First, in Brown v. Riverside, Judge Hubbard found discoverable Riverside’s Sentinel Event Quality Assurance Report, even though the underlying incident occurred one month earlier. See, 1/8/02 Brown v. Riverside Order. Second, in Seibert v. Riverside, Judge Pugh found all factual information in Riverside’s sentinel event and other investigative materials discoverable, even though the underlying incident occurred weeks earlier and Riverside had tried to avoid disclosure with a “quality care” Affidavit. See, 6/11/07 Seibert v. Riverside Hearing Transcript Excerpt.

The defense spin is sentinel event reports are unique and sacrosanct. But Mr. Waterman debunked that through the Riverside School of Professional Nursing Director in the Seibert medical malpractice case. It’s director admitted that a “sentinel event” just means a “significant event,” like a death or other serious injury, about which statistics are kept and inter alia taught to students routinely. See¸ 4/20/07 Seibert v. Riverside Rule 4:5(b)(6) Deposition of Riverside (Deborah Sullivan-Yates) Excerpt at 25.14-27.19. Moreover, the fact that facilities are supposed to report sentinel events to the Joint Commission on Accreditation of Health Organizations (“JCAHO”) raises two significant points. First, the requirement of routine reporting eviscerates any ostensible “work product” claim that a true Sentinel Event Report instead was made in anticipation of litigation. Second, facilities hate to report incidents as sentinel events, so often do not – which puts the facility at risk with JCAHO for not reporting as required and its counsel at risk with the Court for not being candid as required. When the initial gambit of false name-dropping as a sentinel event report fails to evoke knee-jerk protection, defense counsel then recharacterizes the same as investigative materials supposedly covered by “work product;” as unsuccessfully was attempted in Seibert.

Following the landmark case of Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), handled by Avery T. “Sandy” Waterman, Jr., Esq., healthcare providers routinely are being forced to provide their incident reports and other investigative materials for medical malpractice cases. Toward stemming the changing judicial tide, some defense counsel are extending themselves with representations.

In the medical malpractice case of Seibert v. Riverside, for example, defense counsel represented to the Court that there was “no sentinel event report” and that only an “incident report” was involved in Brown v. Riverside, see, 6/11/07 Seibert v. Riverside Hearing Transcript Excerpt at 42.24-43.6; that the document withheld in Seibert was a “sentinel event report,” which supposedly was sui generis; id. at 27.13-28.16; and that plaintiff already had all factual information by the incident report. Id. at 29.8-30.4. Further, defense counsel crafted a “quality care” Affidavit, claiming the materials in question were privileged “quality care” documents issued by a protected committee. See, 4/3/07 Seibert v. Riverside Affidavit of Delana Merenda.

But all were inaccurate defense representations to the Court. There was a sentinel event report in Brown, Judge Hubbard found it not privileged, and it was produced –which defense counsel in Seibert knew from being defense counsel in Brown. See, 1/5/02 Brown v. Riverside Order; and 3/8/97 Brown v. Riverside Sentinel Event Quality Assurance Report. Also, there was more factual information not in the Seibert incident report. Compare 7/14/05 Seibert v. Riverside RHS Quality Care Control Report with 6/22/07 Seibert v. Riverside Judge’s Letter with 7/27/05-8/24/05 Redacted Investigative Materials. Additionally, there was only investigative materials and not a true sentinel event report in Seibert. Id. Further, the Seibert investigation issued at the behest of the Risk Manager. See, 7/9/07 Seibert v. Riverside Rule 4:5(b)(6) Deposition of Riverside (Delana Merenda) Excerpt at 1-4 & 32.34-46.21. Deposition of Merenda exposed her Affidavit as a farce. Such misrepresentations in medical malpractice cases should be sanctioned and not condoned by Courts.

Patients have a fundamental right to know the facts of what a commissioned third-party did to his or her body and mind. Patient care inherently is an invasion of privacy interests, the medical malpractice of which denies life, liberty and/or the pursuit of happiness. Because these patient rights are of constitutional proportions, they are inalienable and cannot be abrogated, abridged and/or infringed by statute or common law for the special interest benefit of those hired third-parties. The fact that healthcare providers are paid servants of the patients cuts against any protectionism. §8.01-581.17 is unconstitutional as drafted and as applied. It impacts most the class of patients who need disclosure most. It also denies them procedural and substantive due process.

Claimed “privilege does not permit a litigant to commit a fraud upon a court.” Owens-Corning Fiberglass Corp. v. Watson, 243 Va. 128, 141 (1992). Peterson v. Fairfax Hosp. Sys., Inc., 32 Va. Cir. 294 (Fairfax 1993)(medical malpractice misrepresentation vitiates privilege). Moreover, defense discovery frauds are admissible in evidence. John Crane, Inc. v. Jones, 274 Va. 581, 589-590 (2007); Owens-Corning, 243 Va. at 141-142. “[W]hen deciding whether a fraud has been committed . . . a controlling factor is ‘whether the misconduct tampers with the judicial machinery and subverts the integrity of the court’.” Id. at 142.

Eppard v. Kelly, 62 Va. Cir. 57, 59-61 (Charlottesville 2003), another medical malpractice case, exposed the “quality” scheme of the University of Virginia Medical Center (“UVMC”). In 1991, UVMC’s “Incident/Occurrence Reports” summarily were retitled “Quality Reports” and claimed “generated to initiate quality review of Health System processes, practices, and procedures for quality assurance purposes.” Id. at 60. Retitled Reports were routed to various committees ostensibly concerned “primarily with health care improvement activities,” but whose membership included and/or was reported to by “risk management and insurance” and “legal” personnel. Id. at 60-61. UVMC and PLT also maintained “patient databases” and “incident report with medical chart review material in a database format” accessible by the Risk Manager. Id. at 60, 65.

Eppard found “there may be incentives to immediately commingle the creation of an incident report with healthcare evaluation by using § 8.01-581.17 to avoid discovery of damaging information or documents.” Id. at 64. Further, “since the University’s Risk Management staff as well as the PLT staff assigned to the healthcare committees have become part of the healthcare improvement process, the system appears to be designed to wrap large segments of the patient treatment review investigation under a blanket of privilege.” Id. “However, ‘peer review’ should not be used to shield from disclosure medical records not generated initially for peer review objectives.” Id. at 63. Eppard held “commingling” the “healthcare improvement committee” with legal, risk management and insurance interests did not create privilege under § 8.01-581.17. Id. at 64. Eppard ordered discovery of “Case Notes,” i.e., “an incident report with medical chart review material in a database format,” and “Database Notes,” including “medical discussions [that] list investigative facts unearthed by the various parties involved.” Id. at 65.

In a recent medical malpractice case, Judge Tench in Newport News seized upon the old scam: “It seems to be that what the healthcare providers does is they try to couch all this as confidential and say the only thing that the patient gets is the patient’s chart … .” See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 38.16-23 (emphasis added). After in camera review, Judge Tench and redacted and disseminated Riverside records. See, 10/31/07 Licare v. Riverside Judge’s Letter.

“The protection provided by § 8.01-581.17 is a qualified privilege similar to the privilege afforded by Rules of Court 4:1(b)(3),” observed Justice Lemons in Stevens v. Lemmie, 40 Va. Cir. 499, 512 (Petersburg 1996)(Lemons, J.)(emphasis added), a medical malpractice case. The limited privilege for certain “committee” communications pertains only “unless a Circuit Court, after a hearing and for good cause arising from extraordinary circumstances being shown, orders the disclosure of such proceedings, minutes, records, reports, or communications.” Va. Code Ann. § 8.01-581.17 (emphasis added).

For the analogous work-product privilege, determination of “good cause” is “a matter within the trial court's discretion and will be reversed only if the action taken was improvident and affected substantial rights.” Rakes v. Fulcher, 210 Va. 542, 546 (1970). Applying a Rule 4:1(b)(3) “substantial hardship” analysis, the claimed patient “quality care” documents and data should be disclosed under § 8.01-581.17(B), regardless whether they are not discoverable under § 8.01-581.17(C). See, e.g., McMillan, 45 Va. Cir. at 397; McGuin v. Mount Vernon Nursing Ctr. Assocs., L.P., 45 Va. Cir. 386, 386-387 (Fairfax 1998); Benedict, 10 Va. Cir. at 438.

The McGuin medical malpractice case found the incident report was not privileged and, alternatively, Plaintiff had substantial need and no equivalent where the patient had died. 45 Va. Cir. at 386. McMillan is broader, recognizing incident reports as sui generis – a unique source of contemporaneous corroborating factual information – regardless patient and/or nurse availability. “Where, as here, the document constitutes a source of information relevant to the inquiry which is not reasonably discoverable from other sources, it may be ordered produced. * * * From other testimony and argument, it is clear that incident reports are prepared whenever there is a fall, and thus they would constitute the only reasonable source of facts to challenge or corroborate the expert’s contention.” 45 Va. Cir. at 397 (emphasis added). Benedict is to the same effect.

“The injured patient . . . is at such an unfair [dis]advantage: one single individual, sick and weak, pitted against a colossal corporate giant with staff and resources unlimited and personnel schooled in the techniques of avoiding or minimized losses for claimed negligence. Already incapacitated and perhaps further damaged by the incident and at the complete mercy of the personnel from whom she seeks recovery and relief, she is hardly in a position to undertake critical investigation of what happened. * * * * [T]he Court is satisfied that enough substantial need has been shown to require the production of these documents and that obtaining their substantial equivalent could not only not be obtained ‘without undue hardship’ but could probably not be obtained at all. * * * * When the input by one party to an issue in dispute has been so handicapped at the outset because of the conditions of health and the location and environment in which the incidents occurred and when measured against the relative investigative strengths of the parties, natural notions of fair play lean heavily toward opening rather than closing doors that might balance the contest. The potential harm to the Claimant in refusing the discovery sought far outweighs the benefit to the Defendant.” 10 Va. Cir. at 438.

More recently in a medical malpractice case handled by Avery T. “Sandy” Waterman, Jr., Esq., Seibert v. Riverside on June 11, 2007, the court found “good cause arising from extraordinary circumstances being shown,” based on Riverside’s malpractice rendering the patient brain-damaged. See, 6/11/07 Seibert v. Riverside Hearing Transcript Excerpt at 37.7-49.22; and 7/23/07 Seibert v. Riverside Second Order. Seibert was followed and extended in Licare v. Riverside on July 10, 2007, another medical malpractice case of Mr. Waterman, with the court finding good cause “arising from extraordinary circumstances being shown,” based on Riverside’s malpractice killing the patient and, alternatively, on Riverside’s document “retention” policy of destroying its original incident reports. See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 50.20-51.15; and 8/3/07 Licare v. Riverside Order.

The last sentence of § 8.01-581.17(C) provides another broad exception that negates any privilege for routine incident reports, electronic incident data, sentinel event reports and investigative materials in medical malpractice cases: “nor shall this section preclude or affect discovery of or production of evidence relating to hospitalization or treatment of any patient in the ordinary course of hospitalization of such patient.” (emphasis added). Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 534 (2006), the landmark case of Avery T. “Sandy” Waterman, Jr., Esq., held that a “QCCR, or incident report,” was not privileged because it was “a factual recitation of a fall that occurred during Johnson’s hospitalization and the immediate action taken when Johnson was found on the floor.”

“Any evidence, then, that relates to the treatment of any patient or his hospitalization ... is discoverable, notwithstanding whatever privilege the preceding language may have granted.” Johnson, 9 Va. Cir. at 199. “How can these words be given any other meaning than what they clearly say: this section shall NOT preclude, it mandates, or affect discovery of evidence that relates to a patient's hospitalization or treatment. And this relation is not quantified; any relation to treatment or hospitalization, however infinitesimal, however generalized, is all that is required.” Id. at 199-200 (emphasis in original). An “Incident Report . . . contains facts and evidence relating to the hospitalization or treatment of said patient in the ordinary course of her hospitalization.” Atkinson, 9 Va. Cir. at 23. “Because a hospital may . . . contend that various reports are not [of] a patient’s treatment does not make it so.” Benedict, 10 Va. Cir. at 437.

The Riverside medical malpractice case held that an incident report database excerpt not privileged because it was a “factual description of Johnson’s fall and that of another patient, which according to [the Risk Manager’s testimony], was based on a QCCR. Like the QCCR, the information on this [QMS database] page related to the raw data about the hospitalization and treatment of specific patients.” 272 Va. at 534. Post-Riverside courts similarly find unprotected incident report databases, see, e.g., 6/24/08 Shakahober 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 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.

The last sentence of § 8.01-581.17(C) provides a broad exception negating privilege for routine incident reports, electronic incident data, sentinel event reports and investigative materials in medical malpractice cases. “Nothing in this section shall be construed as providing any privilege to the hospital medical records kept with respect to any patient in the ordinary course of business of operating a hospital . . . .” (emphasis added). Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 534 (2006), landmark case of Avery T. “Sandy” Waterman, Jr., Esq., held Riverside’s “QCCR, or incident report,” was not privileged because it was “written documentation of the circumstances of Johnson’s fall, kept in the normal course of business”. (emphasis added).

Institutions “have tried to classify routine accident or incident reports which are completed by employees on a regular basis as quality assurance documents.” Messerly v. Avante Group, Inc., 42 Va. Cir. 26, 27 (Rockingham 1996). But they “do not rise to the level as contemplated by the statute of being quality assurance deliberative documents.” E.g., Bradburn v. Rockingham Mem’l Hosp., 45 Va. Cir. 356, 360 (Rockingham 1998); Huffman v. Beverly California Corp., 42 Va. Cir. 205, 216 (Rockingham 1997); Messerly, 42 Va. Cir. at 27-28. “The QCCRs, QCCRs, or ‘Pink Sheets’ (. . . ‘Incident Reports’) are prepared by staff personnel whenever there is an untoward incident which occurs at the hospital.” Bradburn, 45 Va. Cir. at 358. “They are simply recitations of the accident that occurred, the witnesses who were present, and other objective facts that can be ascertained from the eyewitnesses to the incident.” Id. at 360. They “will likely have been produced by a person with the background and training to know what questions to ask and what information to collect. The person preparing the report is also likely to have access to those people most knowledgeable about the incident at a time the incident is fresh in mind.” Hurdle, 49 Va. Cir. at 329. They are standard in all health care facilities. E.g., Eppard v. Kelly, 62 Va. Cir. 57, 63 (Charlottesville 2003); Huffman, 42 Va. Cir. at 216; Messerly, 42 Va. Cir. at 26. Cf., Riverside v. Johnson, 272 Va. at 530-531.

Healthcare institutions essentially assert that them self-servingly choosing to keep their patient incident reports, incident report databases, sentinel event reports and/or investigative materials separate from the patient’s chart is self-proving of their privileged status in medical malpractice cases. But “the Incident Report in question falls within the purview of the last sentence of Section 8.01-581.17. It is a hospital medical record kept with respect to the patient . . . in the ordinary course of the business of [Defendant] operating its hospital . . . .” Atkinson, 9 Va. Cir. at 23. Bradburn, 45 Va. Cir. at 360; Huffman, 42 Va. Cir. at 216; Messerly, 42 Va. Cir. at 28. Defendant in Hurdle even conceded the point. 49 Va. Cir. at 329. “Because a hospital may not choose to call a document ‘medical record’ or may contend that various reports are not maintained in the ordinary course of a hospital's business . . . does not make it so.” Benedict, 10 Va. Cir. at 437.

“What are, or should be, records kept in the ordinary course of treating a patient or operating a hospital with respect to patients, that is the ultimate question. The ordinary course of a hospital’s function surely includes the prevention of accident or mishaps to those who have been entrusted to its care. Charting the ordinary course of a patient’s treatment would or should require description of events out of the ordinary that relate to a patient’s health and well-being.” Benedict, 10 Va. Cir. at 436 (emphasis added).

“Clearly, injuries to a patient, whether in a hospital or a nursing home, need to be included in the patient’s medical chart and cannot be shielded from discovery by the mere expediency of forwarding these ‘reports’ to a so-called quality control committee.” Messerly, 42 Va. Cir. at 28; Eppard, 62 Va. Cir. at 63; Bradburn, 45 Va. Cir. at 361; Huffman, 45 Va. Cir. at 216. Significantly, incident reports sometimes bear a telltale badge: like other patient medical records kept in the chart, they may be stamped (in the upper right-hand corner) with the patient’s identification plate, medical record number and/or the like.

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