Virginia Lawyers Weekly

A woman who alleged she partially delivered her stillborn baby at home less than an hour after a hospital discharged her is not entitled to discovery of the hospital’s written policies pertaining to her personal medical care or its policies for dealing with non-English speaking patients or treatment of patients by on-call physicians.

Fairfax Circuit Judge Jonathan C. Thacher said in Mejia-Arevalo v. Inova Health Care Services (VLW 008-8-199) that all three categories of documents were privileged under Virginia Code § 8.01-581.17, which protects internal communications intended to promote quality assurance within the hospital.

Med-mal lawyers have been alert for any erosion in the statutory privilege after the Virginia Supreme Court’s 2006 decision in Riverside Hospital Inc. v. Johnson. Riverside upheld a decision that required a hospital to give up an incident report of a patient’s fall as a document kept in the ordinary course of business, not protected under the statutory privilege.

Thacher acknowledged that Virginia circuit courts “remain divided on the issue of whether a hospital’s internal policies, procedures, and protocol may be discovered, leaving no clear consensus of circuit court decisions.” In this case, he said Inova could hold onto its policies, but it had to hand over documents from the nurse’s personnel file that detailed her training courses.

In her medical-malpractice suit, plaintiff Paula Mejia-Arevalo alleged that five days after she learned that her nearly full-term baby was in a breech position, she was admitted at defendant Inova Fairfax Hospital. She alleged she received treatment from the defendant nurse, including nearly 35 minutes of fetal heart rate monitoring.

According to the plaintiff, the hospital staff informed the on-call physician, Dr. Francisco Jose Buxo, of the plaintiff’s condition, and he ordered her discharge by phone approximately 45 minutes after her arrival.

Roughly 45 minutes after her release, Mejia-Arevalo alleges, an EMT discovered her in the doorway of her home, where she had partially delivered her stillborn child in a breech position. Transported to Inova Alexandria hospital, the plaintiff underwent multiple emergency surgeries to halt internal bleeding, and eventually entered an 11-day coma. The plaintiff sued Inova Fairfax and the nurse who saw her there for negligence.

The plaintiff sought discovery of a range of hospital “internal policies, procedures and protocols” from Inova, including its protocols for dealing with non-English speaking patients and with a patient whose doctor is an on-call physician. She also requested production of the defendant nurse’s personnel file.

The hospital argued that the documents were privileged under Virginia Code § 8.01-578.17, as internal communications intended to promote quality assurance within the hospital.

In his Aug. 8 decision, Thacher said the protocols at issue in Mejia-Arevalo’s case “are the end result of the self examination that the legislature intended to promote through § 8.01-581.17.” He said the hospital policies at issue here should be privileged under the same rationale that keeps them out of evidence – to encourage healthcare providers to adopt internal standards higher than the law requires.

The concern is that “organizations will just dumb down their standards. That’s the policy rationale for excluding” such documents from evidence, said Fairfax lawyer William Carey, who represents the defendant Inova hospital.

Thacher’s ruling “is significant,” Carey said, because “there has been a lot of discussion about how Riverside impacted this well-established procedure” for protecting healthcare providers.

Riverside seemed to make “a huge difference initially,” said Fairfax lawyer Robert J. Surovell, who represents Mejia-Arevalo, because plaintiff’s lawyers were “finally making some progress” on this issue.

But Surovell says he thinks the 2006 case “did not dramatically alter outcomes or turn the heads of judges” who already were inclined to read the privilege statute more broadly.

During the 2008 General Assembly, a physician-delegate, Henrico County Republican John M. O’Bannon III, sponsored HB 382 in an effort to provide more protection for peer review. The bill got little traction and was carried over in committee until next year.

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