Medical Malpractice: Va. Code Ann. §8.01-413 – a Lawyer’s Application
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!
Further, at hearing on February 12, 2008, Newport News Circuit Court “FINDS that the patient is entitled to the hospital’s records withheld, that the §8.01-413(C) enforcement subpoena in no way constitutes discovery, that the statute [§8.01-413] trumps the rule [Va. S. Ct. Rule 4:9(C)], [and] that Mary Immaculate Hospital, Inc. being a third-party to the medical malpractice suit is not relevant to §8.01-413”. See, Exhibit 21, 2/27/08 Purvis v. Riverside Order (underlining added). In Purvis, Judge Pugh adopted patient’s analysis that patient has an “absolute right” to healthcare records and papers under §8.01-413, that patient is not required to prove the §8.01-413 records or papers were relevant, and that post-malpractice third-party records were relevant (might lead to admissible evidence) anyway; ruled mere defense counsel assertions of irrelevance are insufficient; and ordered the Acute Care Quality Care Record to be provided, without even reaching the point of “good cause arising from extraordinary circumstances”. See, 2/12/08 Purvis v. Riverside Hearing Transcript Excerpt at 4.13-23, 9.11-24 and 14.20-15.22.
Moreover, at hearing on June 23, 2008, Newport News Circuit Court “FINDS [‘Surgical Quality Patient Care Committee Meeting Minutes’ and ‘Quality Management System Summary Reports’ thereon] are PARTIALLY NOT PRIVILEGED . . . . The documents included factual information that do not contain or reflect committee discussion or action.” See, Exhibit 23, 6/24/08 Shakshober v. Riverside Judge’s Letter, Order at 1-2 and Attachments. In Shakshober, Judge Pugh rejected that Riverside v. Johnson covered only incident reports, and that “good cause arising from extraordinary circumstances” had to be shown to obtain patient care factual information. “[T]he facts contained in these quality committee minutes, peer review minutes without deliberative content are not privileged. * * * The use of this factual information in some way in the peer review or quality care committee’s process alone is insufficient to automatically cloak such information with the protection of nondisclosure. Factual patient care incident 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 Section 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.” Thus, like Judge Tench in response to the §8.01-413(C) Subpoena, Judge Pugh redacted and disseminated Riverside records based thereon. See, Exhibit 24, 6/23/08 Shakshober v. Riverside Hearing Transcript Excerpt at 125.9-127.14 (emphasis added).
Recently, at hearing on August 12, 2008, Roanoke Circuit Court held “plaintiff’s Motion to Enforce the subpoena duces tecum is GRANTED and Carilion Medical Center shall respond formally to the subpoena duces tecum”. See, 8/28/08 Anderson v. Carilion Order (emphasis added). The medical malpractice cases of Justis, Licare, Morel, Purvis, Shakshober, and Anderson are dispositive.
