Virginia Lawyers Weekly VA Lawyers Weekly
A Danville Circuit Court says Danville Regional Medical Center must turn over to plaintiff an incident report that has factual information not protected by Va. Code § 8.01-581.17; the document here falls under iiiRiverside Hospital v. Johnson,iii and even viewing plaintiff’s request under the 2011 amendment to Code § 8.01-581.17, plaintiff can have discovery of the report, with redactions.
DRMC has acknowledged it holds a document, prepared in response to the incident involving plaintiff, which falls within the scope of plaintiff’s requests for production. DRMC contends, however, that the document is protected, in its entirety, from discovery by Va. Code § 8.01-581.17, which says the reports of a peer review committee are privileged communications. Plaintiff disagrees that the factual information in the document is protected or, if it is protected, that he may depose the person who created the document as to its underlying facts. DRMC asserts that s/he is also protected from deposition under that Code section. Finally, plaintiff argues that even if both document and writer are protected, he is nonetheless entitled to the document because “extraordinary circumstances” in this case favor its disclosure: 1) plaintiff is a minor incapable of recollecting the incident and 2) at deposition, Dr. Eliacin gave no explanation as to how the injury occurred. Because the court finds that the facts related to the Hairston incident are not privileged, it will not reach the issues of deposing the document’s author or extraordinary circumstances.
The primary case addressing the discoverability of evidence under Code § 8.01-581.17 is Riverside Hospital v. Johnson, 272 Va. 518 (2006), in which the Supreme Court of Virginia held the factual information in a Quality Care Control Report was not privileged by statute. The document requested in Riverside is similar to the document in the instant case, so that case controls our analysis. The document here contains conclusions and analysis, as well as a straightforward (though brief) factual account of the incident. It addresses a specific incident involving a specific patient. It appears to be a record that would be created as a matter of course after any serious mishap, and is therefore a medical record kept with respect to a particular patient in the ordinary course of business under Riverside. Application of that case to the instant one dictates that the factual information contained within this document is not privileged pursuant to Va. Code § 8.01-581.17.
DRMC cites the forthcoming amendment to § 8.01-581.17 as evidence of the General Assembly’s original intent regarding the discoverability of documents pursuant to that section. Assuming arguendo that 1) this General Assembly indeed believes the amended law reflects the law’s original intent, and 2) it is appropriate to look to recent legislation to divine the legislative intent of an earlier General Assembly, and 3) it is appropriate to decide this issue on the basis of that forthcoming legislation, the outcome in this case would not change. Under Riverside, this document would be considered a medical record kept in the ordinary course of business and therefore discoverable. Regardless, the court is not persuaded that it should apply the future iteration of Va. Code § 8.01-587.17, resting its analysis instead upon the statute as it now reads.
Under the current statutory law and Riverside, the document at issue contains factual patient information and appears to be a medical record created in the ordinary course of business. The court now produces that information to which plaintiff is entitled, in a redacted form free of all deliberative, analytical and conclusory material.
Hairston v. Eliacin (Melesco) No. CL 10-028, April 26, 2011; Danville Cir.Ct.; Jeffrey H. Krasnow for plaintiff; Walter H. Peake III for Dr. Eliacin & Women’s Health Care Center; N. Beth Dorsey for DRMC of Va. VLW 011-8-075, 3 pp.
