Virginia Lawyers Weekly VA Lawyers Weekly
A Danville Circuit Court has given a plaintiff access to a hospital incident report that his lawyer thought could shed light on what happened when an infant was injured during a circumcision.
The hospital tried to protect the information by claiming the report was privileged under Virginia Code § 8.01-581.17. The hospital argued that a new state law on the review of bad medical outcomes, which doesn’t go into effect until July 1, shows the legislature’s original intent to protect the hospital report.
Roanoke lawyer Jeffrey H. Krasnow requested the quality control review prepared by Danville Regional Medical Center (DMRC) after the little boy suffered damage to his penis during the surgical procedure.
Although the hospital had the document, it was not a defendant in the suit against the physician who performed the procedure. The hospital went to court to fight the disclosure demand.
The document was created as part of an effort to learn from a medical mistake, the hospital argued. As a policy matter, requiring disclosure of such documents would make it less likely that such incidents would be thoroughly investigated, so that patient safety would be jeopardized.
There was a similar policy clash in 2006, in Riverside Hospital v. Johnson (VLW 006-6-108), but the Supreme Court of Virginia drew a distinction between factual information in such reports and conclusions and analysis. Plaintiffs are entitled to the factual information but not the conclusions and analysis, the high court held.
The Riverside decision set off five years of wrangling between healthcare organizations and the Virginia Trial Lawyers Association that was finally resolved with the passage this year of House Bill 2373 and Senate Bill 1469.
Or maybe not. Danville Circuit Judge David A. Melesco expressed doubt about using the new statute to divine the intent of the earlier legislative act. In any event, he said, his decision to allow access to the report’s facts would be the same.
Melesco said the argument was based on three premises: that the General Assembly did intend to amend the law to reflect the law’s original intent, that it’s appropriate for it to do so and that his ruling on Krasnow’s request would change if he based his decision on the amendments.
The judge said he was not persuaded that he should apply the new law to the request, but he concluded Krasnow is entitled to the factual information in the report under either the old or the amended statute.
Melesco already had reviewed the document in camera and said it had been redacted to remove “all deliberative, analytical and conclusory material.”
The information consisted of four incomplete sentences that were largely indecipherable to anyone not familiar with the case.
Krasnow acknowledged that the information was “almost inconsequential” in light of what he already knew.
But he said the case illustrates that any thought that the legislation resolved the dispute appears to be premature. He predicted that litigation over just what is privileged will continue.
W. Scott Johnson, the Richmond lawyer who represented the Medical Society of Virginia in lobbying to get the law changed, disagreed.
The new law creates “a clear line of demarcation,” he said. Traditional medical records and incident reports may be discoverable, he said, but anything that goes on in a quality control or peer review committee is not.
The Danville case is Hairston v. Eliason (VLW 011-8-075).
