6.10 Important Subjects of Written Discovery

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

6.10 IMPORTANT SUBJECTS OF WRITTEN DISCOVERY ⁷⁷

6.1001 Plaintiff's Perspective.

A. Defendant's Written Policies and Procedures.

1. In General. Many medical malpractice cases involve the alleged mismanagement of routine medical procedures or patient care. When the defendant is an institution such as a hospital or nursing home, there are often written policy manuals or treatment protocols that set forth standardized procedures for routine care. In cases where charting is an issue, these documents may also set forth standardized procedures for entries in medical records. Although the contents of these procedures and protocols are arguably insufficient standing alone to establish the standard of care, ⁷⁸ they can be an invaluable tool for supporting the opinions and credibility of the plaintiff's expert. It is not surprising, therefore, that the discoverability of these procedures and protocols is one of the most hotly contested issues in the discovery phase of medical malpractice cases. The Virginia Supreme Court has never ruled on the discoverability of these documents, but a number of circuit courts around the commonwealth have done so, with dramatically differing results. ⁷⁹

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An excellent overview of the leading cases on this issue prior to 1996 is contained in Justice Lemons' circuit court opinion in Stevens v. Lemmie. ⁸⁰

2. Cases Holding Policies Discoverable. In Johnson v. Roanoke Memorial Hospitals, Inc., ⁸¹ the court held that emergency room policy manuals were discoverable in a medical malpractice action even though they might not be ultimately admissible. The court held that the policy manuals were not privileged under section 8.01-581.17 of the Virginia Code because they were not directly part of any peer review process and because they were "evidence relating to hospitalization or treatment of any patient in the ordinary course of hospitalization of such patient" and were, therefore, exempted from any privilege by section 8.01-581.17(C). The court also held that the policy manuals were relevant and might lead to the discovery of admissible evidence.

In Estate of Curtis v. Fairfax Hospital Systems, Inc., ⁸² the court relied on Johnson and principles of statutory construction to conclude that hospital policy manuals were not privileged under section 8.01-581.17. The court went on to hold that the hospital policy manuals were reasonably calculated to lead to the discovery of admissible evidence on many issues and, therefore, were properly subject to discovery, even if the manuals themselves were ultimately inadmissible.

In Houchens v. Rector & Visitors of the University of Virginia, ⁸³ the court held that policy manuals and protocols were discoverable since the defendants had filed a plea of sovereign immunity. The court held that the policies and protocols were relevant to the question of whether certain defendants were subject to the control and direction of the hospital. The court did not address the discoverability of these documents in the absence of a sovereign immunity issue.

In Pipkin v. Pleasant Care, ⁸⁴ the court assumed that the health care provider's protocols would be inadmissible at trial but permitted the

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protocols to be discovered because they seemed reasonably calculated to lead to the discovery of admissible evidence.

In Owens v. Children's Hospital of King's Daughters, Inc., ⁸⁵ the court specifically held that hospital policy manuals were not admissible at trial but nevertheless permitted their contents to be discovered for the same reason as in Pipkin.

In Bradburn v. Rockingham Memorial Hospital, ⁸⁶ the court held that the final products of peer review activity such as policies, procedures, and practice manuals are discoverable because they are not part of the deliberative process.

In Auer v. Baker, ⁸⁷ the court found that the hospital's policies and procedures "are a separate and distinct type of document which [section 8.01-581.17 ] does not address and therefore does not extend its privilege to." The court held that, "[g]iven the broad scope of Rule 4:1(b), together with the potential uses of the documents alternative to establishing the standard of care and the potential to lead to discovery of admissible evidence," the policies and procedures were within the scope of permissible discovery.

In Gravely v. Perren, ⁸⁸ the court narrowly construed section 8.01-581.17 and held that it did not forbid the discovery of the hospital's policies, protocols, and procedure manuals. The court found that the requested policies and procedures were calculated to lead to the discovery of admissible evidence and were germane to the subject of the plaintiff's medical malpractice lawsuit.

In Matthews v. Maryview Hospital, ⁸⁹ the court took a "strict definitional construction" approach and required production of a "Medication Quality Care Report" and transcripts of statements made to hospital management by two nurses. The court concluded that the report and transcripts were factually related to the plaintiff, contain no committee discussion or action, and therefore were not entitled to the privilege under section 8.01-581.17. The court also concluded that this material was not protected under the work

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product doctrine because (i) the reports in question were made in the ordinary course of business, (ii) no litigation was pending nor had any been threatened, and (iii) the "Medication Quality Care Report" was generated for safety and improvement purposes.

In Jones v. Perez (In re Jones), ⁹⁰ the court concluded that CT scan protocols were not privileged under section 8.01-581.17 because the phrase "all communications" was limited to the enumerated "proceedings, minutes, records, and reports," and disclosure of such policies and procedures does not threaten the existence of "open and collaborative processes in the formulation of such policies."

In Hairston v. Eliacin, ⁹¹ the court found that a document that contained conclusions and analysis, as well as a brief factual account of the incident, was a medical record kept with respect to a particular patient in the ordinary course of business. The court held that Riverside Hospital v. Johnson ⁹² dictated that the factual information was not privileged under section 8.01-581.17, and the plaintiff was entitled to the document in a redacted form that was free of all deliberative, analytical, and conclusory material.

In Flinchum v. INOVA Health System, ⁹³ the court permitted the hospital's internal clinical policies and procedures to be discovered because they were relevant to the plaintiff's case and did not fall within the privilege provided in section 8.01-581.17. The court found that once the policies, procedures, and protocols are promulgated and then referenced in a patient's records as a shorthand means of summarizing what was done, which is what occurred in this case, the plaintiff is entitled to discover such depersonalized information in order to fully understand the facts and circumstances of the incident. As to the admissibility of the policies at trial, the court reserved this decision for the trial judge.

3. Cases Holding Policies Not Discoverable. In Francis v. McEntee, ⁹⁴ the court held that hospital protocols and policy manuals were

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privileged from discovery under section 8.01-581.17. The court found that these types of documents were the end result of the peer review process and, as such, were written communications originating in the committees listed in section 8.01-581.17. The court went on to hold that the plaintiff had failed to establish good cause arising from extraordinary circumstances that would override the privilege granted by section 8.01-581.17. The court further held that the policy manuals in question would not be admissible at trial and that permitting their discovery would do little to advance the interests of the plaintiff.

In Dunn v. Smith, ⁹⁵ the court rejected the analysis of the court in Johnson v. Roanoke Memorial Hospitals, Inc., ⁹⁶ holding that hospital policies and protocols were privileged under section 8.01-581.17 and that those documents were not reasonably calculated to lead to discovery of admissible evidence.

In Mangano v. Kavanaugh, ⁹⁷ the court held that section 8.01-581.17 "should be read broadly and that protection should be accorded all communications originating from or provided to such medical committees." The court found this broad interpretation to be consistent with both the objective and the legislative intent of the statute and, therefore, refused to order the production of hospital policy and procedure manuals. Using the same broad interpretation of section 8.01-581.17, the court went on to hold that incident reports and other communications between the hospital and individual health care providers were privileged from discovery.

In Head v. INOVA Health Care Services, ⁹⁸ the court also adopted a broad interpretation of the privilege afforded by section 8.01-581.17 and held that protocols formulated by a hospital...