19.5 Discovery Issues

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

19.5 DISCOVERY ISSUES

19.501 Obtaining and Using Medical Records for Personal Injury Actions.

A. Medical Records Privacy.

1. Statutory Physician-Patient Privilege. A health care provider may not testify regarding a patient's medical information without the patient's consent.

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Except at the request or with the consent of the patient, or as provided in this section, no duly licensed practitioner of any branch of the healing arts shall be permitted to testify in any civil action, respecting any information that he may have acquired in attending, examining, or treating the patient in a professional capacity. ¹⁸⁷

2. Exceptions to the Privilege.

a. The Patient's Medical Condition Is at Issue in a Civil Action. If the physical or mental condition of the patient is at issue in a civil action, records of the practitioner and facts learned by the practitioner may be disclosed in discovery or at trial. ¹⁸⁸

b. By Order of the Court. The court may order disclosure "in the exercise of sound discretion, [when] necessary to the proper administration of justice." ¹⁸⁹

c. To Protect the Practitioner's Legal Rights. A practitioner may disclose the patient's medical information where such disclosure is necessary in connection with the care of the patient, the protection or enforcement of a practitioner's legal rights including such rights with respect to medical malpractice actions, or the operations of a health care facility or health maintenance organization or in order to comply with state or federal law. ¹⁹⁰

The Supreme Court has held that Va. Code § 8.01-399(F) does not require that the physician be an actual or potential party to the medical malpractice action to warrant disclosure. ¹⁹¹

3. Health Records Privacy Statute. A health care entity is prohibited from disclosing an individual's health records, except where otherwise permitted or required by state or federal law. ¹⁹²

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Health care entities must disclose health care records to the patient (with limited exceptions where such disclosure would endanger the life or safety or the patient or another person). ¹⁹³

The statute enumerates thirty-six scenarios in which the prohibition against disclosure does not apply, including: upon written authorization by the patient, in compliance with a subpoena, or when necessary to defend the practitioner against a claim of wrongful conduct. ¹⁹⁴

4. Common Law. Virginia common law recognizes a cause of action in tort for wrongful disclosure of confidential information gained during the course of medical treatment. ¹⁹⁵

B. Obtaining Medical Records.

1. Patient's Authorization to Release Health Records. The sufficiency of a patient's authorization to release confidential health records is governed by Va. Code § 32.1-127.1:03(G).

The release must include the following information: (i) The name of the patient, the health care entity, and the person to whom disclosure is to be made, (ii) The health records to be disclosed and the purpose of the disclosure, and (iii) Signed acknowledgement by the patient or his legal representative, and a date of expiration for the authorization.

The health care entity must furnish copies of the requested records or papers within 30 days of the patient's request. ¹⁹⁶

The health care entity may impose upon the patient a reasonable charge for providing the records or papers: no more than $0.50 ($0.37 for records produced electronically) per page up to 50 pages and $0.25 ($0.18 for records produced electronically) per page thereafter, $1 per page for micrographic copies, $20 for searching and handling, and postage and shipping

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costs. ¹⁹⁷ The total of cost for records or papers produced electronically shall not exceed $150 for any request made (or $160 after July 1, 2021). ¹⁹⁸

2. Subpoenas for Party or Non-Party Medical Records. Where a party issues a subpoena duces tecum for the medical records of a party or non-party witness, he must provide notice to the party's counsel or the witness simultaneously with filing the request or issuing the subpoena. ¹⁹⁹

No subpoena for medical records may set a return date for earlier than 15 days from the date of the subpoena except by order of court. ²⁰⁰

If the subpoena is for medical records of a pro se party or nonparty witness, the party requesting the records must give notice to the pro se party or nonparty witness of his right to file a motion to quash. ²⁰¹

The party issuing the subpoena must also give notice to the health care entity of its right to file a motion to quash, that it may not produce the records until after receiving notice that no motion to quash was filed, and that if a motion to quash was filed, the records must be produced to the clerk of court under seal. ²⁰²

If no motion to quash is filed within 15 days of the subpoena, or once a motion to quash is resolved, the party requesting the medical records must certify the outcome to the health care entity. ²⁰³

The health care entity may impose upon the patient a reasonable charge for providing the records or papers: no more than $0.50 ($0.37 for records produced electronically)per page up to 50 pages and $0.25 ($0.18 for records produced electronically) per page thereafter, $1 per page for micrographic copies, $20 for searching and handling, and postage and shipping

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costs. The total of cost for records or papers produced electronically shall not exceed $150 for any request made (or $160 after July 1, 2021). ²⁰⁴

3. Obtaining Out-of-State Medical Records.

a. Procedure Generally. Generally, to subpoena documents held out of state, the party must comply with the Uniform Interstate Deposition and Discovery Act Va. Code § 8.01-412.8 et seq. To obtain records in states that do not grant reciprocal privileges through the Uniform Interstate Deposition and Discovery Act, the party generally must obtain a Commission or Letter Rogatory for filing in the foreign court.

Where the medical records are relevant to the action, the plaintiff often will execute an authorization to release specified out-of-state records to counsel for the opposing party. The authorizing party should include in the release the following language: "This release covers the production of records to the above-referenced law firm, but does not authorize any contact between you [the health care provider] and the above-referenced law firm which is prohibited pursuant to Va. Code § 8.01-399."

b. Military Records. The National Personnel Record Center, in St. Louis, Missouri, is the central repository of personnel-related records for both the military and civil services of the United States. DD Form 2870, Authorization for Disclosure of Medical and Dental Information, is used to request copies of medical records from a military treatment facility.

C. Privilege for "Peer Review" Materials.

1. The Privilege. Materials used by certain medical peer review committees are privileged and not discoverable absent an order of court in extraordinary circumstances.

"The proceedings, minutes, records, and reports of any (i) medical staff committee, utilization review committee, or other committee as specified in Va. Code § 8.01-581.16 and (ii) nonprofit entity that provides a centralized credentialing service, together with all communications, both oral and written, originating in or provided to such committees or entities, are privileged communications which may not be disclosed or obtained by legal discovery proceedings unless a circuit court, after a hearing and for good

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cause arising from extraordinary circumstances being shown, orders the disclosure of such proceedings, minutes, records, reports, or communications." ²⁰⁵

The "other committee as specified in Va. Code § 8.01-581.16 includes a "committee, board, group, commission or other entity, which functions primarily to review, evaluate, or make recommendations on (i) the duration of patient stays in health care facilities, (ii) the professional services furnished with respect to the medical, dental, psychological, podiatric, chiropractic, veterinary or optometric necessity for such services, (iii) the purpose of promoting the most efficient use or monitoring the quality of care of available health care facilities and services, or of emergency medical services agencies and services, (iv) the adequacy or quality of professional services, (v) the competency and qualifications for professional staff privileges, (vi) the reasonableness or appropriateness of charges made by or on behalf of health care facilities or (vii) patient safety, including entering into contracts with patient safety organizations. . . ." ²⁰⁶

2. Application to Patient Incident Reports. The peer review privilege is designed to protect the deliberative process and the conclusions reached by peer review committees, while allowing disclosure of relevant information regarding specific patient care and treatment. ²⁰⁷

In Riverside Hospital v. Johnson, ²⁰⁸ the Virginia Supreme Court affirmed the trial court's decision to admit into evidence two incident reports that contained factual recitations of the circumstances of the plaintiff's fall and the actions taken immediately thereafter where the reports had been kept in the normal course of business by the hospital.

3. Application to Hospital "Policies and Procedures." A split in authority remains in Virginia circuit courts regarding whether a hospital's "policies and procedures" are entitled to the privilege afforded by Va. Code § 8.01-581.17, on the grounds that such guidelines are the end result of peer review proceedings. ²⁰⁹

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The Supreme Court has not definitively resolved this split, but the Court indicated in Riverside Hospital that such policies and procedures may not be privileged, as it adopted a narrow reading of the privilege statute and also declined to analyze the admissibility of certain "private rules" of the hospital under the statute.

`D. Admissibility of Medical Records.

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