Court Takes Defendant Hospital Side In Discovery Dispute

 Court Sides With Hospital
in Dispute Over Discovery of Policies and Procedures 

Robin A. R. McVoy 

Almost two years have passed since Riverside Hospital v. Johnson, in which the Supreme Court of Virginia upheld a circuit court decision that information is not privileged simply because it has been reviewed by a medical care provider's peer review committee or in its quality assurance process.  This opinion was seen by many as chipping away at the protections provided healthcare providers by Virginia Code section 8.01-581.17, which protects "proceedings, minutes, records, and reports" of any quality assurance and peer review committees from discovery.  Since this decision, hospital administrators, risk managers, and medical malpractice attorneys have been anxious to learn how various circuit courts across the Commonwealth would apply the holding of Riverside Hospital.  Last year, in a case that we reported in a previous e-mail alert, a Portsmouth Circuit Court ordered the production of a Medication Quality Care Report and transcripts of nurse statements made because they contained patient care information and lacked any committee discussion.  Matthews v. Maryview Hospital, Case No. CL07-1401 (2007). 

More recently, however, a Fairfax County Circuit Court sided with the hospital when it denied a plaintiff's request for production of several internal policies, procedures, and protocols in Mejia-Arevalo v. Inova Health Care Services, Case No. CL2007-15529 (2008).  The plaintiff alleged that she was admitted to Inova Fairfax Hospital five days after learning that her full-term baby was in breech position, where a nurse monitored the fetal heart rate for nearly thirty-five minutes.  The on-call physician was notified of her condition and ordered her discharged by phone.  Less than an hour later, the plaintiff partially delivered her still-born baby in breech position in the doorway of her home.  She was transported back to the hospital by ambulance where she underwent multiple surgeries to stop internal bleeding, and slipped into an eleven-day coma.  She sued the hospital and the nurse who provided care for negligence. 

During discovery, the plaintiff sought the hospital's protocols pertaining to handling non-English speaking patients, and handling patients' whose doctors are on-call physicians.  She also requested access to the defendant nurse's personnel file.  The Supreme Court of Virginia has not ruled on these specific issues, and there is no clear consensus among circuit courts.  With regard to the nurse's personnel file, the Fairfax court held that training and orientation records are not privileged, as they are not peer review material.  However, all financial information and peer review/employee evaluation documents in the personnel file are protected from disclosure.

With regard to the hospital policies and protocols sought by the plaintiff, the Fairfax court held that they are protected from discovery by section 8.01-581.17 of the Code of Virginia.  The court reasoned that the policies and protocols at issue are the end result of the kind of self examination that the legislature intended to promote in enacting section 8.01-581.17.  These kinds of protocols, the court held, should not be discoverable for the same reason they are not admissible in evidence. Admitting internal standards of conduct into evidence would potentially lead to civil liability when a provider violates a self-imposed standard that is higher than the law's requirements.  Allowing discovery of these internal protocols would discourage hospitals from implementing policies with higher standards, and encourage the implementation of lower standards that mirror the legal standard of a "reasonably prudent practitioner."  Though this opinion represents only one circuit court's ruling, it is certainly a victory for healthcare providers.  Hopefully this decision is a foreshadowing of what is to come with regard to the application of Riverside Hospital to various discovery issues that frequently arise in Virginia medical malpractice lawsuits. 

For more information contact Robin McVoy at (804) 783-7235 or RMcVoy@SandsAnderson.com.