This is four of 13 reprinting Mr. Waterman’s leading medical malpractice article, “Healthcare Policies, Procedures & Protocols: Discoverability, Abuse, Admissibility & Legislation,” featured in VTLA’s The Journal for Spring, 2008.
B. PP&P are not privileged under Va. Code Ann. §8.01-581.17.
For over 20 years, legion Virginia courts have found healthcare PP&P are not privileged and are discoverable. Most prominently, Virginia Supreme Court Justice Lemons weighed in favorably for patients more than 10 years ago.
Justice Lemons wrote for the circuit court in Stevens v. Lemmie in 1996. His opinion followed Johnson and Curtis, which held PP&P were not privileged under § 8.01-581.17.
Justice Lemons applied the doctrine of ejusdem generis to interpret “communications” within the context of § 8.01-581.17. He correctly reasoned in Stevens that the statute’s protection of certain deliberative committee communications was limited by its exception for discovery of evidence related to patient hospitalization, including particularly as to “procedure manuals and hospital protocols”. As Judge Coulter before him declared, “How can these words be given any other meaning than what they clearly say: the section shall NOT preclude… or affect discovery of evidence that relates to a patient’s hospitalization or treatment.” This analysis of the statute’s balancing of the competing societal interests in healthcare provider confidentiality and in victim patient disclosure was vindicated by the Virginia Supreme Court in Riverside in the closely-related context of incident reports, computer data and other ostensible “quality” materials.
Justice Lemons then adopted and quoted the combined rationale of Judge Coulter in Johnson and Judge Annunziata in Curtis to delineate why final PP&P were not protected while actual committee deliberations leading up to them may be privileged under § 8.01-581.17.
[T]he ultimate end results of such critiques, which may find their way into depersonalized manuals of procedure and which have been shorn of individualization criticisms, do not merit the same concern for protection from public scrutiny…. In summary, discovery of the hospital’s guidelines, procedures, and protocols does not threaten open discussion and debate within the hospital’s review committees, and therefore, the privilege should not apply.
As Judge Coulter in Johnson elaborated: “It is this court’s conviction that the legislature intended to sanctify the genuine work or peer review committees and the bare-knuckle details of their searching self-criticism; that such internal debate should be free and uninhibited; but that the end results of such investigations and evaluations, depersonalized and void of individual criticisms and fault-finding, should not be entitled to such protection.” Justice Lemons concluded in Stevens that the “privilege against disclosure must be limited to accomplish the purposes of the statute.”
A half-dozen other reported decisions cogently distinguish between committee deliberative processes, which may be privileged; and final healthcare PP&P, which always are discoverable. Twenty years ago, Saunders v. Childress held that the PP&P “materials sought by the Plaintiff’s subpoena duces tecum is not the material referred to and intended to be protected under Section 8.01-581.17,” which like § 8.01-581.16 “relates to the process of developing the rules and regulations but not the ultimate rules of governance”.
The statute does not specify that Rules and Regulations governing the operation of the hospital and its department are to be privileged and exempted from discovery by Section 8.01-581.17. It does grant privilege and protection, however, to the ‘proceedings, minutes, records and reports’ which are involved in the deliberations leading to the establishment of the rules and regulations which govern. The end product is not privileged. In effect, the legislative is protecting as if in ‘executive session’ all of the deliberative proceedings from which come the protocols and other guidelines for operation of the hospital, its staff and its departments.
The same year in Hedgepeth v. Jesudian, the court found “that ‘guidelines, rules regulations, protocols or recommended procedures…’ are [not] proceedings, minutes, records and reports which are intended to be protected from discovery [because] these materials are the formalized rules disseminated to and expected to be followed by all persons covered by the rules, etc. and, therefore, were never intended to attain a character of confidentiality.”
In 1997, Owens v. Children’s Hospital of the King’s Daughters, Inc. followed Justice Lemons’ opinion in Stevens, quoting from it extensively. Owens observes that PP&P “represent the consensus among medical personnel and administrators,” and “necessarily relate to the treatment of the patient”. “[I]n considering § 8.01-581.17, the proper balance between the grant of privilege and the exception of the privilege favors finding that the privilege does not apply to the policy manuals dictating care of the patient,” concluded Owens. “Because procedures and policies which instruct hospital staff on the proper way to care for a sick infant relate to the patient’s hospitalization, these documents fall within the exception of the privilege.”
The following year in Bradburn v. Rockingham Mem. Hosp., Judge McGrath adopted the “better reasoned analysis” of the courts holding that “the privilege set forth in § 8.01-581.17 only applies to the deliberative process by which peer review groups establish procedures and protocols and does not extend to the final product thereof”.
Clearly, the internal dialogue and the give and take of the peer review process, which lead up to and are an integral part of developing the policies, procedures and protocols of medical care providers are exempted from discovery in the absence of good cause shown. However, the actual product that is generated thereby, which are generally policy and procedure manuals that are intended to be followed by all of the hospital staff and attending physicians, are not part of the deliberative process but are the final result thereof and do not share in the privilege conferred by statute.
Therefore, Bradburn held “§ 8.01-581.17 does not protect from discovery the final result of the peer review activity, that is the policies, procedures, and practices manuals that are ultimately promulgated by the health care providers and which are used to govern the operations of the hospital.”
More recently, Auer v. Baker found the reasoning of opinions rejecting privilege persuasive and “clearly congruent” with Levin.
Hospital policies and procedures are clearly not of the same character as, for example, peer review committee minutes, which could contain references to specific incidents or physicians. The argument in favor of extending the privilege to policies and procedures rests largely on the premise that the policies and procedures are documents which originated in statutorily covered committee meetings; that is to say, policies and procedures are the ‘end product’ of committee effort to ensure the quality of patient care. However, based on the statutory language, the policy concerns behind the statute, and a review of case law from the circuit courts, hospital policies and procedures do not fall within the scope of the § 8.01-581.17 privilege.
The 2006 decision in Hubbard v. Pascual also was persuaded by and adopted the reasoning of the opinions rejecting privilege for PP&P. “Essentially I am of the opinion that the materials I have reviewed in camera have moved well beyond any ‘peer review’ purpose and represent personnel policies as well as procedures for the operation of the radiology department. After considering the material the court comes to the conclusion that the subject materials are most likely disseminated to all employees of the radiology department, including clerical personnel, and therefore lack the confidential nature of the material I believe the statute is designed to protect.”