Virginia: Medical Malpractice Incident Report – a Lawyer’s Production
Avoiding adverse ruling at hearing on February 2, 2010, Sentara Obici Hospitals capitulated after oral argument and produced so-called “incident report” to Plaintiff that it had claimed was privileged in a medical malpractice action. The case is Mahone v. Sentara Hospitals, No. CL09-560 in Circuit Court for the City of Suffolk, Virginia, which alleges wrongful death of a patient who bled to death during her overnight stay at Sentara Louise Obici Memorial Hospital.
Sentara’s attorney of record, Ted G. Yoakam, Esq. of Yoakam & Etheridge, PLC in Virginia Beach, Virginia, at hearing characterized Incident Report # 20119 as a blood bank protocol document that was irrelevant to the medical malpractice. But on its face, Sentara’s Incident Report #20119 actually records material factual patient care information that the Virginia Supreme Court opined was discoverable and admissible in its landmark decision, Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), litigated by Plaintiff’s counsel, Avery T. “Sandy” Waterman, Jr., Esq. of Williamsburg and Newport News, Virginia.
Sentara Incident Report # 20119 proves that the exsanguinating patient in Mahone v. Sentara never was transfused the unit of blood she was ordered hours earlier by her doctor due to Sentara nursing staff’s failure to restart an IV site, contributing to patient demise. Among other things, Sentara Incident Report # 20119 also documents the dying patient’s diagnosis (hemolytic anemia, thrombocytopenia) in this ostensibly mysterious case of wrongful death, plus identifies three Sentara employees with pertinent knowledge.
Like most if not all secreted incident reports, Sentara Incident Report # 20119 contains relevant factual patient care information missing from and at variance with Nursing Notes of the limited so-called “patient chart” to which hospitals seek to limit patient access for review. Patient charts are sanitized healthcare industry-wide by the systematic institutional laundering of key harmful patient care facts into incident reports that are segregated from the patient chart (often in computer databases).
Sentara Incident Report #20119 is particularly significant in the medical malpractice lawsuit of Mahone v. Sentara because suspiciously there are no contemporaneous Nursing Notes from 11:05 p.m. through and beyond the patient’s death at 5:38 a.m.. Instead, post-death, from 5:40 a.m. to 9:32 a.m., a Sentara L.P.N. created fifteen (15) Notes and one (1) Addendum of purportedly what happened from 12:15 a.m. to 4:10 a.m.
Sentara Incident Report # 20119 also is significant for evincing that Sentara, like Riverside Hospital, has abandoned use of the longstanding preprinted paper forms of incident report and instead uses a system of direct entry into its computer database by remote terminals. The Riverside system facilitates modifying entries ex post facto and it claiming that discreet factual information retrievable for each individual patient supposedly is part of an undifferentiated “quality assurance” computer database.
In Sentara’s brief in the Mahone v. Sentara wrongful death proceeding, Ted G. Yoakam, Esq. mischaracterized the Virginia Supreme Court’s seminal Riverside opinion as “a limited holding that ‘incident reports’ that described the patients care after the patient had died were not documents generated by a committee referred in Va. Code § 8.01-581.17”. See, Sentara Memorandum in Support at 5. In fact, Riverside upheld the discoverability and the admissibility of an incident report (regardless whether death occurred) and even of ostensible “quality assurance” database printouts. 272 Va. at 530-534.
Ted G. Yoakam, Esq. instead relied chiefly on the maverick 2008 decision of a lone circuit court judge in Mejia-Arevalo v. INOVA. See, Sentara Memorandum in Support at 5-6. However, Mejia-Arevalo was a “policies and procedures” case, not an “incident report” one; and it summarily rejected the cogent pro-disclosure opinion of Justice Lemons in Stevens v. Lemmie, 40 Va. Cir. 499, 507-508 (Petersburg 1996) that is consistent with the Virginia Supreme Court’s rationale in Riverside in 2006.
Further, Ted G. Yoakam, Esq. on brief represented that Plaintiff’s counsel previously had been denied incident reports in other circuit courts, and cited Marshall v. Sentara in Williamsburg. See, Sentara’s Memorandum in Support at 4. In truth, Mr. Waterman has not been denied an incident report in general; was not denied one in Marshall v. Sentara in particular (because Sentara claimed it has destroyed that incident report); and in Marshall, the Court agreed to entertain a Motion for Reconsideration on the computerized committee materials it did consider.
Mahone v. Sentara in Suffolk is the third medical malpractice suit in which Williamsburg/Newport News attorney, Mr. Waterman, has obtained a telltale Incident Report over the objection of a Sentara hospital. Prior cases are Justis v. Sentara in Williamsburg in 2008 and Garner v. Sentara in Norfolk in 2001.
The hearing transcript in the wrongful death case of Mahone v. Sentara should be available in two weeks, so this blog posting may be supplemented accordingly. Meanwhile, Sentara Incident Report # 20119 follows, a true copy of which in original form will be forwarded to you upon request:
RUN DATE: 07/29/08 OBICI PROGRAMMING DIRECTORY
RUN TIME: 1314 EVENT - complete list
Incident#: 20119
Category PATIESTT, STUDENT, VOLUNTEER, VISITOR, ETC.
Type PROCEDURE/PRACTICE VARIANCE
Event Dt 07/03/07 @ 0430
Entered 07/03/07 @ 0630
by SHARON S PRESSON RN
Name MADISON, FELICA T MR# 211457 DOB 10/27/75 Sx F
Add 415 WOODRUFF ST SUFFOLK VA 23434 Unit 2-INTENSIVE CARE
Phone# 539-8145 Loc 2ICU
Dx HEMOLYTIC ANEMIA, THROMBOCYTOPENIA Phys FORMAN, JEFFREY D. M.D.
Description
PT HAD CHANGE IN STATUS ON FLOOR. PT BROUGHT TO ICU WITH 1 UNIT OF PRBC'S NOT SPIKED OR INFUSING, AND NON-FUNCTIONING IV LOCK IN RT HAND. BY THE TIME IV ACCESS WAS ESTABLISHED, IT WAS TOO LATE TO TRANSFUSE PRBC'S AND PT ARRESTED 15 MIN AFTER ARRIVAL. EXPIRED BLOOD RETURNED TO LAB.
OUTCOME/IMPACT of EVENT: UNKNOWN
EFFECT/CORRECTIVE ACTION:
Departments
1-MEDICAL/ONCOLOGY
QA/Risk Management
2-INTENSIVE CARE UNIT
FOLLOW-UP
CATHY GRAY RN
Pt was admitted to let floor at 1740. A unit of blood had already been infused. The IV went bad multiple attempts were made to restart the IV 0300 The nursing supervisor also attempted IV. MD made aware that they could not get an IV site. MD ordered to have patient moved to ICU
PAT MANIX
Task: Please provide follow-up Status: REQD
PATIENT WAS CREDITED FOR THE UNIT AND THE UNIT WAS DESTROYED. IF THE NURSE HAD RETURNED THE UNIT AS SOON AS SHE WAS UNABLE TO START, THE UNIT MAY HAVE BEEN SAVED.
On February 8, 2010, this post was followed and blogged by BenGlassLaw.com under the headline "Shocking Attempt by Sentara Obici Hospitals to Play 'Hide the Ball'." Post and forward to friends, colleagues, and victims.
If you or a loved one are victim of medical malpractice, wrongful death, or other personal injury, please contact Avery T. "Sandy" Waterman, Jr., Esq. in Newport News or Williamsburg, Virginia, at 888.881.7881, 757.881.9881 or contact him online.
