Virginia: Patient Falls - a Lawyer’s Spoliation
On February 1, 2013, the corporate Defendant in the medical malpractice lawsuit of William M. Snovell, Executor of the Estate of Bernadette Teresa Connelly Snovell, Deceased v. Williamsburg Facility Operations, LLC, D/B/A Consulate Health Care of Williamsburg, and “Jane Roe/John Doe,” No. CL12-4966 in Circuit Court for York County, Virginia, served supplemental discovery responses as ordered by the Judge. It also produced its 2-page Root Cause Analysis for Fall, minimally redacted as Court-ordered.
Despite both of its pages bearing at the bottom the self-serving pre-printed legend “ATTORNEY/CLIENT PRIVILEGED CONFIDENTIAL WORK PRODUCE - QUALITY ASSURANCE,” Snovell Defendant’s Root Cause Analysis for Fall bears at the top of its first page the subheading “Data Collected at Time of Fall”. Thus, despite Defendant nursing home couching and arguing its basic data was supposedly privileged material, the truth is that on the face virtually all of it really was factual information of patient care that is discoverable.
In its supplemental discovery responses, Defendant Consulate Healthcare of Williamsburg claims that the patient’s “chair alarm was in place but the box didn’t alarm” before the patient fall. Assuming the chair alarm was “in place,” the remaining pivotal question in Snovell is whether the alarm was activated before the fall, particularly in light of the defense claim that it was “functioning”.
Conveniently for the corporate Defendant, it claims that the “particular alarm in use on Ms. Snovell’s chair is no longer available,” indicating that Consulate Healthcare of Williamsburg disposed of - or “lost” - that key evidence, knowing that an alleged wrongful death was involved. Under such suspect circumstances, the victim patient’s estate representative deserves and will seek an evidentiary spoliation instruction against Consulate Healthcare of Williamsburg in Snovell.