Virginia Injury Attorney Blog

Newport News Circuit Court ruled on discovery matters in a patient fall suit, Shakshober v. Riverside Hospital, Inc., alleging medical malpractice and resulting brain injury. That was at contradictory hearing on February 9, 2009.

The primary sweep of the impending Discovery Order was disgorging from Riverside materials and of its Nursing Schools. Included were materials, other information and witnesses on Nursing School policies, procedures, protocols, presentations, and all teaching or instruction about patient falls.

Having its Nursing Schools’ material, information and testimony helps greatly in exposing the truth about what goes on vis-à-vis nursing error and holds Riverside to it. Evidence which otherwise arguably may not be introduced in a medical malpractice case when offered as that of the Riverside entity employing a substandard nurse, still may be admissible as that of Riverside’s Nursing Schools. Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 528-530 (2006).

Secondarily, but importantly, the Discovery Order compels Riverside to tender appropriate corporate representatives for deposition. Riverside unfairly continues not to tender its most knowledgeable personnel for its deposition, which dodges patient fall and other medical malpractice victims pinning down the corporation in testimony.

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Posted In: Attorneys Forum , Brain Injuries , Legal Recognitions , Medical Malpractice , Nursing Homes , Patient Falls

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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!

Continue reading "Medical Malpractice: Va. Code Ann. §8.01-413 – a Lawyer’s Application" »

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Some healthcare providers strenuously deny the applicability of Va. Code Ann. §8.01-413(B & C) while suit for medical malpractice is pending. But tellingly, others have admitted its applicability, even with suit unserved.

After Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), Riverside thrice admitted the applicability of §8.01-413(B) to ostensible “quality care” records – all while medical malpractice suit was “pending”. First, for pre-suit and post-suit §8.01-413(B) requests in Shakshober v. Riverside, Riverside voluntarily produced multiple ostensible “quality care” papers. See, 11/16&21/06 & 3/17/08 Shakshober v. Riverside Letters of Waterman and Defense Counsel; 2/16/06 Shakshober v. Riverside Fall Quality Care Control Report (“QCCR”); 2/26/08 Shakshober v. Riverside Midas Risk Management Worksheets; 2/17/06 Shakshober v. Riverside Procedure/Practices Quality Care Control Report; 2/16/06 Shakshober v. Riverside Falls Abstraction Data Tool; and 2/26/08 Shakshober v. Riverside QMS Transaction Summary Report Excerpt.

Second, with another medical malpractice case, Seibert v. Riverside, pending in response to pre-service §8.01-413(B) request for incident reports, Riverside voluntarily provided the QCCR. See, Seibert v. Riverside 11/29/06 & 1/2/07 Letters of Waterman and Defense Counsel; and 7/14/05 Seibert v. Riverside RHS Quality Care Control Report. Riverside admitted its QCCR actually was created by its medical malpractice insurer; “contains factual information that is provided…in the ordinary course of its business”; and is “a factual record that pursuant to [8.01-581.17] now is discoverable.” See, 3/13/07 Seibert v. Riverside Hearing Transcript Excerpt at 13.13-24 & 21.3-8

Third, with yet another medical malpractice case, Licare v. Riverside, pending in response to Licare’s pre-service § 8.01-413(B) request for the deceased’s incident reports and database, Riverside belatedly provided voluntarily part of the Quality Management System (“QMS”) incident report database. See, 2/16/07, 2/27/07 & 7/2/07 Licare v. Riverside Letters of Defense Counsel to Waterman; and 2/5/07 Licare v. Riverside QMS Database Transaction Summary Report. At hearing, Riverside admitted: “it’s my understanding that that Indicator Text [of the database] is essentially a transposition of what was in the incident report [‘not currently in existence’].” See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 27.3-19.

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Despite refusing to comply with Va. Code Ann. §8.01-413(B) in medical malpractice, wrongful death, vehicle accident, and other personal injury cases, some healthcare providers try to avoid enforcement by companion §8.01-413(C). Their threshold argument that statutory enforcement under §8.01-413(C) constitutes impermissible litigation discovery is unfounded.

Va. S. Ct. Rule 4:9 (c) is inapplicable to a statutory enforcement proceeding under §8.01-413(C). Most Subpoenas are issued pursuant to Rule 4:9(c) as litigation discovery. But a §8.01-413(C) Subpoena is different. Contrary to Rule 4:9(c) subpoenas, it enforces patient’s pre-service statutory right to healthcare provider “records or papers” without resort to ordinary litigation discovery after service. Significantly, §8.01-413(C) specifically directs issuance of this Subpoena pursuant to it as the sole remedy for non-compliance with §8.01-413(B).

It is hornbook law that a specific statute of the General Assembly takes precedence over general Rules of the Court. See, e.g., Virginia Constitution, Art. ¬6, Sec. 5. Indeed, Riverside and Mary Immaculate have so conceded on point in medical malpractice cases. See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 29.3-14; 1/30/08 Morel v. Mary Immaculate Hearing Transcript at 18.18-21. Further, it also is hornbook law that §8.01-413(C) and Rule 4:9(c) should be harmonized; and the only way to harmonize them is to recognize §8.01-413(C) as an entirely different and independent source of authority for issuance of a Subpoena from Rule 4:9(c) or, at the least, that §8.01-413(C) is a limited statutory exception to the general, Rule 4:9(c).

Holding Rule 4:9(c) superior and preemptive would eviscerate the clear letter and intent of §8.01-413(B&C), thereby encouraging, facilitating and countenancing potential and/or actual defendants to withhold all or at least key records or papers of victim patient plaintiffs in violation of statute. Also, in medical malpractice cases, it inequitably would force a patient plaintiff to meet his statutory pre-service expert certification requirements under §8.01-20.1 and/or §8.01-50.1 without the benefit of the facility records and papers to which he is entitled by statute, frustrating the same. Additionally, it violates the procedural and substantive due process rights of victim patients against offending defendants.

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Medical malpractice, vehicle accident, wrongful death, product liability, premises liability, sexual abuse, and all other personal injury cases depend on complete prompt access of victims to their healthcare records. That critical access is guaranteed by Va. Code Ann. §8.01-413.

§8.01-413(B) requires provision of “records or papers” to a patient: “copies of hospital, nursing facility, physician’s or other health care provider’s records or papers should be furnished within 15 days of receipt of such request to the patient….” Notably, §8.01-413(B) speaks of all “records or papers,” not some amorphous “patient chart”. The latter just is an artificial construct of facilities, insurers and their lawyers; and self-servingly excludes whatever they choose. As Judge Tench observed in a recent medical malpractice case, “Medical records are much more than just the chart hanging there.” See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 38.16-23 (emphasis added). §8.01-413(B) is broad, encompassing and not susceptible of such convenient defense abuse.

§8.01-413(C) requires the patient in a pending civil case to issue a Subpoena for his records or papers if the healthcare provider fails to comply with a written request under §8.01-413(B). “[U]pon the failure … to comply with any written request made in accordance with subsection B…, the patient …may cause a subpoena duces tecum to be issued. The subpoena may be issued…in a pending civil case .... *** The subpoena shall be returnable within 20 days of proper service, directing the [healthcare provider] … to produce and furnish copies of the reports and papers to the clerk who shall then make the same available to the patient....” (emphasis added). The letter of §8.01-413(C) mandating enforcement through a “pending” case evinces the intent of companion §8.01-413(B) mandating provision of records and papers during a “pending” case. Also, the Court can award attorney’s fees, court costs and all other expenses for non-compliance. §8.01-413(C).

§8.01-413 is analogous to §2.1-340, et seq., with purpose, motivation and litigation status likewise being irrelevant. Va. Code Ann. §2.1-340, et seq. is the Virginia Freedom of Information Act (“FOIA”). The Virginia Supreme Court held “the purpose or motivation behind a [FOIA] request is irrelevant to citizen’s entitlement to requested information.” Associated Tax Servs., Inc. v. Fitzpatrick, 236 Va. 181, 187 (1988). Following Fitzpatrick, Justice Lemons ruled a requestor’s status as medical malpractice plaintiff was irrelevant to and did not disqualify her Virginia FOIA request. Stevens v. Lemmie, 40 Va. Cir. 499, 513-514 (Petersburg 1996). “The broad policy of FOIA mandates that public information be made available to all citizens regardless of their interest in the information,” wrote Justice Lemons. “This Court finds no exception to FOIA that precludes its use where the information sought may become evidence in a pending or contemplated civil suit.” Id. at 514. §8.01-413 is analogous to §2.1-340: it too reflects a broad exception-less policy mandating availability of information. A requestor’s litigation status under §8.01-413 likewise is irrelevant.

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Historically in medical malpractice cases, the defense enjoyed knee-jerk success with convincing Courts to treat so-called “sentinel event reports” differently than other “incident reports”. But that has changed this decade, and stands to erode further in the face of Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006), the landmark case handled by Avery T. “Sandy” Waterman, Jr., Esq.

In two of Mr. Waterman’s medical malpractice cases, Courts have ruled that the factual information of sentinel event reports is not protected. First, in Brown v. Riverside, Judge Hubbard found discoverable Riverside’s Sentinel Event Quality Assurance Report, even though the underlying incident occurred one month earlier. See, 1/8/02 Brown v. Riverside Order. Second, in Seibert v. Riverside, Judge Pugh found all factual information in Riverside’s sentinel event and other investigative materials discoverable, even though the underlying incident occurred weeks earlier and Riverside had tried to avoid disclosure with a “quality care” Affidavit. See, 6/11/07 Seibert v. Riverside Hearing Transcript Excerpt.

The defense spin is sentinel event reports are unique and sacrosanct. But Mr. Waterman debunked that through the Riverside School of Professional Nursing Director in the Seibert medical malpractice case. It’s director admitted that a “sentinel event” just means a “significant event,” like a death or other serious injury, about which statistics are kept and inter alia taught to students routinely. See¸ 4/20/07 Seibert v. Riverside Rule 4:5(b)(6) Deposition of Riverside (Deborah Sullivan-Yates) Excerpt at 25.14-27.19. Moreover, the fact that facilities are supposed to report sentinel events to the Joint Commission on Accreditation of Health Organizations (“JCAHO”) raises two significant points. First, the requirement of routine reporting eviscerates any ostensible “work product” claim that a true Sentinel Event Report instead was made in anticipation of litigation. Second, facilities hate to report incidents as sentinel events, so often do not – which puts the facility at risk with JCAHO for not reporting as required and its counsel at risk with the Court for not being candid as required. When the initial gambit of false name-dropping as a sentinel event report fails to evoke knee-jerk protection, defense counsel then recharacterizes the same as investigative materials supposedly covered by “work product;” as unsuccessfully was attempted in Seibert.

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Following the landmark case of Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), handled by Avery T. “Sandy” Waterman, Jr., Esq., healthcare providers routinely are being forced to provide their incident reports and other investigative materials for medical malpractice cases. Toward stemming the changing judicial tide, some defense counsel are extending themselves with representations.

In the medical malpractice case of Seibert v. Riverside, for example, defense counsel represented to the Court that there was “no sentinel event report” and that only an “incident report” was involved in Brown v. Riverside, see, 6/11/07 Seibert v. Riverside Hearing Transcript Excerpt at 42.24-43.6; that the document withheld in Seibert was a “sentinel event report,” which supposedly was sui generis; id. at 27.13-28.16; and that plaintiff already had all factual information by the incident report. Id. at 29.8-30.4. Further, defense counsel crafted a “quality care” Affidavit, claiming the materials in question were privileged “quality care” documents issued by a protected committee. See, 4/3/07 Seibert v. Riverside Affidavit of Delana Merenda.

But all were inaccurate defense representations to the Court. There was a sentinel event report in Brown, Judge Hubbard found it not privileged, and it was produced –which defense counsel in Seibert knew from being defense counsel in Brown. See, 1/5/02 Brown v. Riverside Order; and 3/8/97 Brown v. Riverside Sentinel Event Quality Assurance Report. Also, there was more factual information not in the Seibert incident report. Compare 7/14/05 Seibert v. Riverside RHS Quality Care Control Report with 6/22/07 Seibert v. Riverside Judge’s Letter with 7/27/05-8/24/05 Redacted Investigative Materials. Additionally, there was only investigative materials and not a true sentinel event report in Seibert. Id. Further, the Seibert investigation issued at the behest of the Risk Manager. See, 7/9/07 Seibert v. Riverside Rule 4:5(b)(6) Deposition of Riverside (Delana Merenda) Excerpt at 1-4 & 32.34-46.21. Deposition of Merenda exposed her Affidavit as a farce. Such misrepresentations in medical malpractice cases should be sanctioned and not condoned by Courts.

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Patients have a fundamental right to know the facts of what a commissioned third-party did to his or her body and mind. Patient care inherently is an invasion of privacy interests, the medical malpractice of which denies life, liberty and/or the pursuit of happiness. Because these patient rights are of constitutional proportions, they are inalienable and cannot be abrogated, abridged and/or infringed by statute or common law for the special interest benefit of those hired third-parties. The fact that healthcare providers are paid servants of the patients cuts against any protectionism. §8.01-581.17 is unconstitutional as drafted and as applied. It impacts most the class of patients who need disclosure most. It also denies them procedural and substantive due process.

Claimed “privilege does not permit a litigant to commit a fraud upon a court.” Owens-Corning Fiberglass Corp. v. Watson, 243 Va. 128, 141 (1992). Peterson v. Fairfax Hosp. Sys., Inc., 32 Va. Cir. 294 (Fairfax 1993)(medical malpractice misrepresentation vitiates privilege). Moreover, defense discovery frauds are admissible in evidence. John Crane, Inc. v. Jones, 274 Va. 581, 589-590 (2007); Owens-Corning, 243 Va. at 141-142. “[W]hen deciding whether a fraud has been committed . . . a controlling factor is ‘whether the misconduct tampers with the judicial machinery and subverts the integrity of the court’.” Id. at 142.

Eppard v. Kelly, 62 Va. Cir. 57, 59-61 (Charlottesville 2003), another medical malpractice case, exposed the “quality” scheme of the University of Virginia Medical Center (“UVMC”). In 1991, UVMC’s “Incident/Occurrence Reports” summarily were retitled “Quality Reports” and claimed “generated to initiate quality review of Health System processes, practices, and procedures for quality assurance purposes.” Id. at 60. Retitled Reports were routed to various committees ostensibly concerned “primarily with health care improvement activities,” but whose membership included and/or was reported to by “risk management and insurance” and “legal” personnel. Id. at 60-61. UVMC and PLT also maintained “patient databases” and “incident report with medical chart review material in a database format” accessible by the Risk Manager. Id. at 60, 65.

Eppard found “there may be incentives to immediately commingle the creation of an incident report with healthcare evaluation by using § 8.01-581.17 to avoid discovery of damaging information or documents.” Id. at 64. Further, “since the University’s Risk Management staff as well as the PLT staff assigned to the healthcare committees have become part of the healthcare improvement process, the system appears to be designed to wrap large segments of the patient treatment review investigation under a blanket of privilege.” Id. “However, ‘peer review’ should not be used to shield from disclosure medical records not generated initially for peer review objectives.” Id. at 63. Eppard held “commingling” the “healthcare improvement committee” with legal, risk management and insurance interests did not create privilege under § 8.01-581.17. Id. at 64. Eppard ordered discovery of “Case Notes,” i.e., “an incident report with medical chart review material in a database format,” and “Database Notes,” including “medical discussions [that] list investigative facts unearthed by the various parties involved.” Id. at 65.

In a recent medical malpractice case, Judge Tench in Newport News seized upon the old scam: “It seems to be that what the healthcare providers does is they try to couch all this as confidential and say the only thing that the patient gets is the patient’s chart … .” See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 38.16-23 (emphasis added). After in camera review, Judge Tench and redacted and disseminated Riverside records. See, 10/31/07 Licare v. Riverside Judge’s Letter.

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“The protection provided by § 8.01-581.17 is a qualified privilege similar to the privilege afforded by Rules of Court 4:1(b)(3),” observed Justice Lemons in Stevens v. Lemmie, 40 Va. Cir. 499, 512 (Petersburg 1996)(Lemons, J.)(emphasis added), a medical malpractice case. The limited privilege for certain “committee” communications pertains only “unless a Circuit Court, after a hearing and for good cause arising from extraordinary circumstances being shown, orders the disclosure of such proceedings, minutes, records, reports, or communications.” Va. Code Ann. § 8.01-581.17 (emphasis added).

For the analogous work-product privilege, determination of “good cause” is “a matter within the trial court's discretion and will be reversed only if the action taken was improvident and affected substantial rights.” Rakes v. Fulcher, 210 Va. 542, 546 (1970). Applying a Rule 4:1(b)(3) “substantial hardship” analysis, the claimed patient “quality care” documents and data should be disclosed under § 8.01-581.17(B), regardless whether they are not discoverable under § 8.01-581.17(C). See, e.g., McMillan, 45 Va. Cir. at 397; McGuin v. Mount Vernon Nursing Ctr. Assocs., L.P., 45 Va. Cir. 386, 386-387 (Fairfax 1998); Benedict, 10 Va. Cir. at 438.

The McGuin medical malpractice case found the incident report was not privileged and, alternatively, Plaintiff had substantial need and no equivalent where the patient had died. 45 Va. Cir. at 386. McMillan is broader, recognizing incident reports as sui generis – a unique source of contemporaneous corroborating factual information – regardless patient and/or nurse availability. “Where, as here, the document constitutes a source of information relevant to the inquiry which is not reasonably discoverable from other sources, it may be ordered produced. * * * From other testimony and argument, it is clear that incident reports are prepared whenever there is a fall, and thus they would constitute the only reasonable source of facts to challenge or corroborate the expert’s contention.” 45 Va. Cir. at 397 (emphasis added). Benedict is to the same effect.

“The injured patient . . . is at such an unfair [dis]advantage: one single individual, sick and weak, pitted against a colossal corporate giant with staff and resources unlimited and personnel schooled in the techniques of avoiding or minimized losses for claimed negligence. Already incapacitated and perhaps further damaged by the incident and at the complete mercy of the personnel from whom she seeks recovery and relief, she is hardly in a position to undertake critical investigation of what happened. * * * * [T]he Court is satisfied that enough substantial need has been shown to require the production of these documents and that obtaining their substantial equivalent could not only not be obtained ‘without undue hardship’ but could probably not be obtained at all. * * * * When the input by one party to an issue in dispute has been so handicapped at the outset because of the conditions of health and the location and environment in which the incidents occurred and when measured against the relative investigative strengths of the parties, natural notions of fair play lean heavily toward opening rather than closing doors that might balance the contest. The potential harm to the Claimant in refusing the discovery sought far outweighs the benefit to the Defendant.” 10 Va. Cir. at 438.

More recently in a medical malpractice case handled by Avery T. “Sandy” Waterman, Jr., Esq., Seibert v. Riverside on June 11, 2007, the court found “good cause arising from extraordinary circumstances being shown,” based on Riverside’s malpractice rendering the patient brain-damaged. See, 6/11/07 Seibert v. Riverside Hearing Transcript Excerpt at 37.7-49.22; and 7/23/07 Seibert v. Riverside Second Order. Seibert was followed and extended in Licare v. Riverside on July 10, 2007, another medical malpractice case of Mr. Waterman, with the court finding good cause “arising from extraordinary circumstances being shown,” based on Riverside’s malpractice killing the patient and, alternatively, on Riverside’s document “retention” policy of destroying its original incident reports. See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 50.20-51.15; and 8/3/07 Licare v. Riverside Order.

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The last sentence of § 8.01-581.17(C) provides another broad exception that negates any privilege for routine incident reports, electronic incident data, sentinel event reports and investigative materials in medical malpractice cases: “nor shall this section preclude or affect discovery of or production of evidence relating to hospitalization or treatment of any patient in the ordinary course of hospitalization of such patient.” (emphasis added). Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 534 (2006), the landmark case of Avery T. “Sandy” Waterman, Jr., Esq., held that a “QCCR, or incident report,” was not privileged because it was “a factual recitation of a fall that occurred during Johnson’s hospitalization and the immediate action taken when Johnson was found on the floor.”

“Any evidence, then, that relates to the treatment of any patient or his hospitalization ... is discoverable, notwithstanding whatever privilege the preceding language may have granted.” Johnson, 9 Va. Cir. at 199. “How can these words be given any other meaning than what they clearly say: this section shall NOT preclude, it mandates, or affect discovery of evidence that relates to a patient's hospitalization or treatment. And this relation is not quantified; any relation to treatment or hospitalization, however infinitesimal, however generalized, is all that is required.” Id. at 199-200 (emphasis in original). An “Incident Report . . . contains facts and evidence relating to the hospitalization or treatment of said patient in the ordinary course of her hospitalization.” Atkinson, 9 Va. Cir. at 23. “Because a hospital may . . . contend that various reports are not [of] a patient’s treatment does not make it so.” Benedict, 10 Va. Cir. at 437.

The Riverside medical malpractice case held that an incident report database excerpt not privileged because it was a “factual description of Johnson’s fall and that of another patient, which according to [the Risk Manager’s testimony], was based on a QCCR. Like the QCCR, the information on this [QMS database] page related to the raw data about the hospitalization and treatment of specific patients.” 272 Va. at 534. Post-Riverside courts similarly find unprotected incident report databases, see, e.g., 6/24/08 Shakahober v. Riverside Order; 8/3/07 Licare v. Riverside Order; 7/23/07 Seibert v. Riverside Second Order; and 2/15/05 Riverside v. Johnson Order; “sentinel event” reports and investigative materials. See, e.g., 8/3/07 Licare v. Riverside Order; 7/23/07 Seibert v. Riverside Second Order; 1/8/02 Brown v. Riverside Order; and 5/5/08 Morel v. Mary Immaculate Order at 3-4.

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The last sentence of § 8.01-581.17(C) provides a broad exception negating privilege for routine incident reports, electronic incident data, sentinel event reports and investigative materials in medical malpractice cases. “Nothing in this section shall be construed as providing any privilege to the hospital medical records kept with respect to any patient in the ordinary course of business of operating a hospital . . . .” (emphasis added). Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 534 (2006), landmark case of Avery T. “Sandy” Waterman, Jr., Esq., held Riverside’s “QCCR, or incident report,” was not privileged because it was “written documentation of the circumstances of Johnson’s fall, kept in the normal course of business”. (emphasis added).

Institutions “have tried to classify routine accident or incident reports which are completed by employees on a regular basis as quality assurance documents.” Messerly v. Avante Group, Inc., 42 Va. Cir. 26, 27 (Rockingham 1996). But they “do not rise to the level as contemplated by the statute of being quality assurance deliberative documents.” E.g., Bradburn v. Rockingham Mem’l Hosp., 45 Va. Cir. 356, 360 (Rockingham 1998); Huffman v. Beverly California Corp., 42 Va. Cir. 205, 216 (Rockingham 1997); Messerly, 42 Va. Cir. at 27-28. “The QCCRs, QCCRs, or ‘Pink Sheets’ (. . . ‘Incident Reports’) are prepared by staff personnel whenever there is an untoward incident which occurs at the hospital.” Bradburn, 45 Va. Cir. at 358. “They are simply recitations of the accident that occurred, the witnesses who were present, and other objective facts that can be ascertained from the eyewitnesses to the incident.” Id. at 360. They “will likely have been produced by a person with the background and training to know what questions to ask and what information to collect. The person preparing the report is also likely to have access to those people most knowledgeable about the incident at a time the incident is fresh in mind.” Hurdle, 49 Va. Cir. at 329. They are standard in all health care facilities. E.g., Eppard v. Kelly, 62 Va. Cir. 57, 63 (Charlottesville 2003); Huffman, 42 Va. Cir. at 216; Messerly, 42 Va. Cir. at 26. Cf., Riverside v. Johnson, 272 Va. at 530-531.

Healthcare institutions essentially assert that them self-servingly choosing to keep their patient incident reports, incident report databases, sentinel event reports and/or investigative materials separate from the patient’s chart is self-proving of their privileged status in medical malpractice cases. But “the Incident Report in question falls within the purview of the last sentence of Section 8.01-581.17. It is a hospital medical record kept with respect to the patient . . . in the ordinary course of the business of [Defendant] operating its hospital . . . .” Atkinson, 9 Va. Cir. at 23. Bradburn, 45 Va. Cir. at 360; Huffman, 42 Va. Cir. at 216; Messerly, 42 Va. Cir. at 28. Defendant in Hurdle even conceded the point. 49 Va. Cir. at 329. “Because a hospital may not choose to call a document ‘medical record’ or may contend that various reports are not maintained in the ordinary course of a hospital's business . . . does not make it so.” Benedict, 10 Va. Cir. at 437.

“What are, or should be, records kept in the ordinary course of treating a patient or operating a hospital with respect to patients, that is the ultimate question. The ordinary course of a hospital’s function surely includes the prevention of accident or mishaps to those who have been entrusted to its care. Charting the ordinary course of a patient’s treatment would or should require description of events out of the ordinary that relate to a patient’s health and well-being.” Benedict, 10 Va. Cir. at 436 (emphasis added).

“Clearly, injuries to a patient, whether in a hospital or a nursing home, need to be included in the patient’s medical chart and cannot be shielded from discovery by the mere expediency of forwarding these ‘reports’ to a so-called quality control committee.” Messerly, 42 Va. Cir. at 28; Eppard, 62 Va. Cir. at 63; Bradburn, 45 Va. Cir. at 361; Huffman, 45 Va. Cir. at 216. Significantly, incident reports sometimes bear a telltale badge: like other patient medical records kept in the chart, they may be stamped (in the upper right-hand corner) with the patient’s identification plate, medical record number and/or the like.

Continue reading "Medical Malpractice: Va. Code Ann. § 8.01-581.17(C) – a Lawyer’s Exception (I)" »

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Toward frustrating medical malpractice claims, hospitals, nursing homes and other healthcare institutions routinely keep “double books” about personal injury incidents – a laundered “patient chart” and other trenchant facility records about the patient. Healthcare institutions routinely withhold the latter from patients, claiming statutory quality-care/peer-review privilege under Va. Code Ann. §8.01-581.17. But Avery T. “Sandy” Waterman, Jr., Esq. champions victim patient rights and debunks ostensible privilege in succeeding posts.

The “statutory language [of §8.01-581.17] is clear, unambiguous, and unqualified.” HCA Health Servs. of Virginia, Inc. v. Levin, 260 Va. 215, 220 (2000). “When statutory language is clear and unambiguous, there is no need for construction by the court; the plain meaning of the enactment will be given it. Courts must give effect to legislative intent, which must be gathered from the words used, unless a literal construction would involve a manifest absurdity.” Id.

8.01-581.17 “provides a privilege in plain language which is limited narrowly to medical staff committees, utilization rule committees, and other committees specified in § 8.01-581.16.” Klarfeld v. Salsbury, 233 Va. 277, 284 (1987)(italics in original)(underlining added). “[T]he scope of § 8.01-581.17 is more limited [than § 8.01-581.16]. Stated differently, § 8.01-581.17 does not include an ‘other entity’ referred to in § 8.01-581.16 which is not a ‘committee’.” Id.

“Ambiguities in the [medmal] statutes should not be extended to enlarge the privilege.” Johnson v. Roanoke Mem’l Hosps., Inc., 9 Va. Cir. 196, 199 (Roanoke 1987). “Any ambiguities in [§ 8.01-581.17] must be strictly construed for, as the U.S. Supreme Court has noted, ‘exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth’. United States v. Nixon, 418 U.S. 683, 709-10 (1974).” Curtis v. Fairfax Hosp. Sys., Inc., 21 Va. Cir. 275, 277 (Fairfax 1990). Recently writing for the Virginia Supreme Court, Justice Lemons reiterated that a statute (such as §8.01-581.17) “in derogation of the common law… must be ‘strictly construed and not…enlarged in [its] operation by construction beyond [its] express terms’.” Univ. of Va. Health Servs. Found. v. Morris, 275 Va. 319 (2008)(Lemons, J.)(denying immunity to a hospital healthcare provider in the context of medical malpractice).

Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), a landmark medical malpractice case of Mr. Waterman, held “communications … provided to” covered committees were “not privileged”; “factual information of patient care” is not confidential or privileged; and use of factual patient care information in the peer review or quality care committee process does not render it privileged. “These limitations on the application of the privilege are consistent with preserving the confidentiality of the quality review process while allowing disclosure of relevant information regarding specific patient care and treatment. *** It is the deliberative process and the conclusions reached through that process that the General Assembly sought to protect. *** The deliberative process involving evaluation of patient safety conditions and the design of initiatives to improve the health care system both necessarily begin with factual information of patient care incidents occurring within the health care facility. The use of this factual information in some way in the peer review or quality care committee process alone is insufficient to automatically cloak such information with the protection of no-disclosure. Factual patient care 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 §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. Applying these principles, we conclude that the documents at issue here are of the nature of those described in Code §8.01-581.17(C) and are not privileged.” 272 Va. at 532-533 (emphasis added). Cf., Stevens v. Lemmie, 40 Va. Cir. 499, 508 (Petersburg 1996)(Lemons, J.).

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Use of neuroradiology is critical to diagnosis of traumatic brain injuries in general. Use of the best imaging techniques may be crucial to accurate evaluation of mild and diffuse axonal injury in particular.

Computerized Axial Tomography (“CAT”), renamed Computer Tomography (“CT”), scans still are entrenched as the front-line neuroradiological imaging for many because of their relative availability and low cost. But “CAT fever” has its limitations and detractors, with CT scans showing false negatives in virtually all cases of mild traumatic brain injuries and in some others too.

Magnetic Resonance Imaging (“MRI”) is more sensitive than CT. But most traditional clinical MRI also show mild traumatic brain injuries as normal, because it relies on signs of edema and structural abnormalities, which are just the tip-of-the-iceberg fordiffuse axonal injury.

The vast majority of MRIs are low resolution 0.15-1.5 Tesla (“T”); relatively few are the “gold standard” high-resolution 3T available by 2004. In the United States, there are only a half-dozen 7T (located in Boston, New York City, Philadelphia, Pittsburgh, Minneapolis and Portland); and a single 9.4T in Chicago, the world’s most powerful medical one, which hopefully soon will offer real-time view of metabolic processes safely.

New MRI-based diffusion tensor imaging (“DTI”) advances sensitivity toward micro-structural lesions and changes implicated thereby. This brilliant cutting-edge technique measures fractional anisotropy variations and fiber bundle discontinuity in white matter locations.

Functional imaging techniques of positron emission tomography (“PET”) Single Photo Emission Computed Tomography (“SPECT”) and MRI-based spectroscopy (“MRS” or “MRSI”) are complementary to the foregoing anatomical imaging. PET measures cellular function, SPECT measures blood flow, and MRS/MRSI measures chemical changes – all as metabolic markers of neuronal integrity or damage.

Continue reading "Virginia Traumatic Brain Injuries – a Lawyer’s Diagnostic" »

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Traumatic brain injuries frequently are closed-head sequelae of high-velocity acceleration, deceleration and/or rotational force incidents, such as vehicle accidents or patient falls. Significantly, no direct impact is necessary for causation, although often it is present and intensifies injury.

Rapid external acceleration, deceleration and/or rotational forces propel the unprotected soft brain within the hard bony skull. Those forces strain, stretch and finally shear delicate minute blood vessels and nerve fibers irrepairably, and are followed by biochemical degradation.

Much traumatic brain injury consists of diffuse axonal injury. Lesions and lacerations dispersed throughout the brain are the observable tip-of-the-iceberg of such injury and ultimately result in permanent degeneration, scarring and/or cavities.

With injury occurring at the neuronal level, the damage may not be discernable using only a CT scan, particularly in cases of mild traumatic brain injury. That primary diagnostic technique may have to be supplemented with other more expensive neuroimaging, such as MRI and even PET, SPECT or EEG; so not to overlook demonstrable injury.

Despite many victims having an outwardly normal appearance, clinically-observable damages flowing from traumatic brain injury are numerous, wide-ranging, and frequently permanent, increasing and disabling, such as persistent postconcussive syndrome – hence the national Center for Disease Control refers to it as the “silent epidemic”. Classic neurobehavioral symptoms, deficits and disorders include but are not limited to: physical (headaches, neck/back pain, tinnitus, hearing loss, aural-sensitivity, blurred vision, diplopia, photo-sensitivity, diminished taste, diminished smell, fatigue, drowsiness, seizures, tremors, sleep disturbance, vertigo/dizziness, imbalance, decreased appetite, and increased risk of altzheimer’s disease and morbidity); psychological/affective (personality change, depression, anxiety, irritability, agitation, aggression, impulsivity, moodiness, disinhibition, altered sexuality, and limited self-awareness); cognitive (visual-perceptual alteration, attention/concentration impairment, memory dysfunction, decreased processing/reaction, decreased understanding/insight, decreased reasoning/judgment, language/communication difficulties and learning problems); and socioeconomic (increase risks of interpersonal disputes, regression/dependency, suicide, divorce, substance abuse, vocational problems, occupational problems, chronic unemployment/underemployment, and economic strain).

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On November 27, 2008, The Daily Press featured authority about patient falls in Virginia. That expert authority on medical malpractice was introduced by Avery T. “Sandy” Waterman, Jr., Esq., who has obtained a record verdict and record settlements in Virginia patient fall cases. Per The Daily Press, over 20 years, published reliable expert authority has emphasized the following.

“A review of fall literature confirms that various researchers have identified risk factors (measurable patient characteristics, medical or nursing diagnoses) that have a potential to predict falls in elderly population, thus suggesting preventability. Falls are one of the most common reasons that nurses…and hospitals are sued for medical negligence. Many falls are predictable and should not be considered to be an expected sequela of the aging process. Hospitalization can pose a major risk for older persons….”

“Falls are a common problem and nurse should be aware of patients who many fall. Various safety precautions can be taken to prevent falls.”

“Older adults…are a high-risk group for falls with resulting injuries. More aggressive measures seemed necessary to prevent further patient falls. These measures included additional patient safely devices [such as ‘bed alert’ systems], more stringent staff education in patient fall prevention, and the development of a written protocol of nursing intervention levels….”

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On December 26, 2008, The Daily Press featured medical malpractice cases of Avery T. “Sandy” Waterman, Jr., Esq., including three patient fall cases settled for $2,600,000.00 in 2008. The article is “Attorney fights to get the facts on patient care in hospitals,” subtitled “He contends most institutions keep ‘double books’ that can conceal details about injuries”.

It covers Mr. Waterman’s landmark medical malpractice case decided by the Virginia Supreme Court, Riverside Hospital, Inc v. Johnson, 272 Va. 518 (2006) . That decision mandated healthcare institutions provide patients their factual medical records, including particularly incident reports and electronic databases. But Riverside and other institutions continue to resist Johnson and attempt to overturn it legislatively through their activist trade association, Virginia Hospitals & Healthcare Association. To date, however, their attempts to “couch” factual patient medical records as confidential have been unsuccessful in Newport News Circuit Court. The article recounted Mr. Waterman’s courtroom successes in compelling healthcare institutions, including most notably a facility that withheld over 700 pages of factual patient care records.

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Posted In: Legal Recognitions , Medical Malpractice , Nursing Homes , Patient Falls

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Virginia law provides compensation for wrongful death caused by vehicle accidents, patient falls, other medical malpractice, defective products or other negligence. A wrongful death action must be brought by the personal representative of the deceased’s estate, i.e., the administrator, administratrix, executor or executrix. Generally any Virginia wrongful death lawsuit must be filed within two years of death, though there are some very limited exceptions.

Virginia statute specifies a jury or judge may award compensation for the damages of wrongful death. Those include, but are not limited to: (1) sorrow, mental anguish and solace of certain family members; (2) loss of income of the deceased; (3) services, protection, care and assistance of the deceased to those family members; (4) hospital and other healthcare expenses of the deceased; (5) funeral expenses; and for willfulness, wantonness or recklessness showing conscious disregard for the deceased’s safety (6) punitive damages up to $350,000.00. Solace of family members includes loss of society, companionship, comfort, guidance, kindly offices and advice of the deceased.

Family members entitled to compensation in Virginia wrongful death cases are classes of so-called “statutory beneficiaries”. The primary class consists of any surviving spouse, all surviving children and any child of a predeceaseing child of the deceased. If nobody is in that class, the secondary class is any parent, any sibling, and any other relative living with and finically dependent on the deceased. Adopted children and step-siblings are covered. See generally, Va. Code Ann. 8.01-50, et seq.

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Patient falls are a leading cause of personal injury in Virginia hospitals, nursing homes and other healthcare facilities. In larger hospitals, patient falls are daily incidents. Most patient falls are predictable and avoidable, so constitute medical malpractice.

Each Virginia patient must be assessed for risk of falls upon admission and during shifts. A patient is scored as a low, high or extreme fall risk. All patients are entitled some protections from falls.

Patients are assessed on known fall risk factors. Leadings factors are advanced age, diminished mentation, unsteady gait, and especially non-compliance. Additional factors include medications, incontinence and diagnoses.

Low-risk interventions for all include periodic checks, call buttons, patient instruction, family education, non-skid slippers, night lights, and beds lowered and locked. High-risk interventions add alarm systems, side rails, mats, and color-coded magnet, sticker and band symbols. Extreme-risk interventions are sitters and physical restraints of torso, wrists and/or ankles.

Brain injury and hip or femur fracture are frequent serious personal injuries from patient falls and often cascade the patient into a downward spiral. Brain injury often prematurely condemns a patient to institutionalization in nursing homes unto death. The majority of elderly patients who fall and break a hip die within the year.

Continue reading "Patient Falls are a Leading Cause of Injury in Virginia Hospitals and Nursing Homes" »

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Posted In: Medical Malpractice , Nursing Homes , Patient Falls

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Medical malpractice in Virginia often results in serious personal injury. Common examples of medical malpractice are patient falls, medication errors, surgical oversights, condition misdiagnoses, and treatment failures. All healthcare providers are liable to patients for personal injury damages caused by medical malpractice.

The Virginia Medical Malpractice Act covers hospitals, HMOs, nursing homes, physicians, dentists, pharmacists, registered nurses, licensed practical nurses, optometrists, podiatrists, chiropractors, physical therapists, physical therapy assistants, clinical psychologists, clinical social workers, professional counselors, and licensed dental hygienists. See, Va. Code Ann. 8.01-581.1, et seq. The Act requires all such healthcare providers to use the “degree of skill and diligence practiced by a reasonably prudent practitioner in the [same or related] field of practice of specialty”. Otherwise, the healthcare provider is guilty of medical malpractice in Virginia for causing personal injury.

The Virginia Medical Malpractice Act inequitably “caps” all personal injury awards to patients. The medical malpractice cap was increased to $2,000,000.00 effective July 1, 2008. Any award for personal injury in excess of the cap must be reduced to it by the court. The cap should be increased legislatively to cover catastrophic personal injuries in Virginia in excess of it and the ravages of compounding annual inflation.

Continue reading "Virginia Medical Malpractice Act - a Lawyer's Commentary" »

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