In Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia, the patient fall victim suffered broken femur, head injury, and disabling stroke due to allegedly substandard fall risk assessment and intervention by her nurses at Riverside Regional Medical Center. Pre-trial, Riverside moves to keep from the jury the fact that it wrote off the portion of its billing that Tricare refused to cover because of it suspected third-party (Riverside) liability - which write-off under the circumstances the patient argues is an admission of liability or against interest by Riverside.
Riverside’s write-off of Plaintiff’s balance for the hospitalization at issue was subject of Rule 4:5(b)(6) deposition by Riverside’s two most knowledgeable persons: RHS Risk Manager, Joann Friend; and Patient Accounting Manager, Deborah Gressett. Identified in their medical malpractice depositions were Riverside Deposition Exhibits 1 and 2.
Riverside Dep. Ex. 1 is 2/14-22/06 Statement for $75,036.08 (Bates-stamp nos. 77–83), and 10/27/06 RHS Authorization to Charge to Risk Management for $1234.00 (Bates-stamp nos. 84–85). Riverside Dep. Ex. 2 is 10/27/06 QMS Transaction # 68137 Summary Report re the write-off for the patient fall.
On March 13, 2006, Medicare payments/adjustments of $73,802.08 left a balance due of $1,234.00. On May 12, 2006, Plaintiff’s secondary coverage, Tricare, denied the remaining claim for $1,234.00 “due to lack of response of [sic] the third party liability questionnaire” vis-à-vis medical malpractice; and Plaintiff was referred to Ms. Gressett.
Tricare’s Third Party Liability Questionnaire is “a form that Tricare is sending to the patient, questioning whether there’s other liability involved.” See, Gressett at 8.4–6. In this patient fall case, the other third party liability is Riverside’s liability as Plaintiff claimed.
On October 27, 2006, while still facing the medical malpractice specter of Tricare’s Third Party Liability Questionnaire (256 days after the patient’s fall), Defendants’ Risk Manager unilaterally “waived” internally the $1,234.00 remaining unpaid. See, e.g., Friend at 13. Patient Accounting implemented the Risk Manager’s Authorization, resolving the third party liability issue with Tricare. See, Gressett at 8-9
Defendants’ Risk Manager admits that all Riverside write-offs do not come from Risk Management. See, Friend at 21. She also admits that some of her write-offs are for medical malpractice “errors”. Id. at 19.
After-the-fact, Defendants’ Risk Manager frames it that by her unilateral internal write-off she was “hoping that maybe we could mitigate some of [Plaintiff’s family] anger or convince them maybe not to sue us.” Id. at 14. But the fact is that Defendants’ Risk Manager never ever communicated with the patient or her family, e.g., id. at 15; that Defendants’ QMS Summary Report indicated the “$1,234 WAIVED FOR … FALL/ FX,” [fracture], i.e., patient fall and resulting fracture; and that no documentation has any indication of the ostensible “expression of sympathy” now claimed.
A. ADMISSION OF LIABILITY
Defendants fail to cite its counsel’s pre-statute case on point with undersigned counsel, upholding the admissibility of unilateral write-offs, Schuster v. Posner, No. LA-134-3 (Richmond Mar. 24, 1997). In another medical malpractice suit, Richmond Circuit Court ruled that defendants’ medical bill write-off was admissible against interest, that defendants were free to try explaining it away, and that “it’s up to the jury to decide who to believe”. See, 3/24/97 Schuster v. Posner Transcript at 75. 11-96.20.
Also, in 2011 the post-statute medical malpractice case of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County, Virginia, held the defendants’ write-off and no-charge were admissible. Both were admitted at trial and plaintiff was entitled to argue they were admissions of liability.
B. EXPRESSION OF SYMPATHY
Va. Code Ann. §8.01–581.20:1, the “expression of sympathy” statute, provides:
"In any civil action brought by an alleged victim of an unanticipated outcome of health care, or in any arbitration or medical malpractice review panel proceeding related to such civil action, the portion of statements, writings, affirmations, benevolent conduct, or benevolent gestures expressing sympathy, commiseration, condolence, compassion, or a general sense of benevolence, together with apologies that are made by a health care provider or an agent of a health care provider to the patient, a relative of the patient, or a representative of the patient, shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest. A statement of fault that is part of or in addition to any of the above shall not be made inadmissible by this section."
On its face, §8.01–581.20:1 does not apply to this patient fall case on 2 independent grounds.
First, there is nothing in the medical malpractice matter sub judice “expressing sympathy, commiseration, condolence, compassion, or a general sense of benevolence.” Second, nothing at bar was “made by a health care provider to the patient, a relative of the patient, or a representative of the patient.”
Moreover, on the particular facts of this patient fall case, §8.01–581.20:1 does not apply either. Faced with Tricare’s insurance coverage denial and the specter of Riverside’s “third party liability” – 256 days after its medical malpractice – Defendants’ Risk Manager quietly ponied up for the remaining costs of patient’s fall, did not express any sympathy to anyone, and did not even communicate with patient or family.
Under the circumstances, that constitutes an admission of medical malpractice liability or against interest by Riverside. Of course, Defendants remain free to claim otherwise to the jury.
Even medical malpractice defense lawyers commenting on the then-new statute shortly after its enactment emphasized that the “expressions of sympathy” contemplated were those made “to” the patient and family.
"E. Expressions of Sympathy
The effect of a health care provider's apology to a patient is a topic of much debate in both the legal and medical communities. The Veteran's Administration Hospital in Lexington, Kentucky adopted a novel disclosure policy concerning possible negligence, including requirements to notify patients of potential problems with their care and to hold face-to-face meetings with patients and their families to fully disclose all aspects of these problems. Several states have taken legislative approaches to this issue, enacting laws that provide civil immunity for those health care providers who express sympathy and benevolence to their patients. ***
Virginia is following the trend; health care providers in the commonwealth can now say "I'm sorry" to patients without fear of these sentiments being construed as an admission of liability at trial. The Virginia General Assembly incorporated into the Medical Malpractice Act a section focused solely on expressions of sympathy by health care providers. Virginia Code section 8.01- 581.20:1 provides that any ‘statements, writings, affirmations, benevolent conduct, or benevolent gestures expressing sympathy, or general sense of benevolence’ made by a health care provider are inadmissible as evidence of liability or an admission against interest when suit is brought against the health care provider by the patient to whom such expressions of sympathy were made."
Kathleen M. McCauley and Dana A. Dews, “Annual Survey of 2006: Medical Malpractice Law,” 41 U. Rich. L. Rev. 231, 243-244 (2006)(emphasis added).