Med-mal plaintiff to get hospital X-ray policy

Lingering questions about a breakdown in hospital communications led a Southside judge this month to allow access to a hospital’s policy for X-ray reports in a medical malpractice case.

The ruling came just days after the former patient died of lung cancer, a death her lawyers say could have been prevented if someone had told her about early signs of the disease in 2012.

Mecklenburg County Circuit Judge Leslie M. Osborn rejected the hospital’s objections that the policy was privileged and irrelevant and relied on the plaintiff’s argument that the case was one of “extraordinary circumstances,” according to the plaintiff’s lawyer.

The decision marks another trial court ruling on a common medical malpractice issue still unresolved by the Supreme Court of Virginia.

Missed cancer diagnosis

Patient Carolyn Bolton had two chest X-rays in 2012, one in March and one in June, her lawyers said. Based on his review of both studies in June, a radiologist recommended a CT scan to examine a density in Bolton’s left lung.

But no other doctor ever addressed that finding until two years later, when Bolton was diagnosed with advanced lung cancer, according to court documents. She died May 3, court documents show.

Before her death, Bolton sued Community Memorial Hospital of South Hill and 13 other defendants listing 57 allegations of negligence. Bolton demanded $4 million.

Lawyers for the now-deceased patient say the defendants failed to timely diagnose her lung cancer and failed to communicate the results of the June X-ray. They also claimed the hospital did not have proper policies, procedures, standards and protocols to ensure proper notice of X-ray reports.

According to Bolton’s lawyers, the radiologist’s report was sent to the hospital unit where Bolton was admitted, but “it seems to have been lost in the shuffle by a unit secretary.”

Depositions of medical providers failed to shed much light on the matter, the lawyers said.

“Witnesses are unable to testify to whom reports are customarily forwarded,” wrote Benjamin D. Byrd of Roanoke in a brief filed this month.

The plaintiff’s legal team contended that “simple follow-up and communication by any number of the Defendants could have prevented great suffering and hardship, not to mention an untimely death.”

The lawyers asked the hospital to provide its policies, procedures and protocols regarding radiology reports. The hospital refused.

No binding precedent

The majority of Virginia circuit courts have held that hospital policies, procedures and the like are privileged under the state medical malpractice statutes, the hospital’s lawyers said.

Despite the general preference for privilege, a federal magistrate judge allowed access to internal practices and procedures for fall prevention in a 2012 decision regarding a Russell County medical center. A Martinsville judge ordered production of hospital cardiac management policies, protocols and procedures in a 2009 decision.

“The danger in permitting discovery of the materials that Plaintiff seeks is that hospitals such as CMH will reduce or even eliminate the implementation of policies or procedures that would otherwise promote the quality of healthcare – because of the fear that their private and internal rules, policies, or procedures will be used against them in litigation,” wrote a hospital lawyer.

The hospital also argued relevance. It contended that, because policies and procedures do not set the standard of care, the hospital could not be held liable for allegedly failing to implement proper policies or procedures.

Bolton’s lawyers said they did not seek the protocols to establish the standard of care.

“Plaintiff is entitled to determine how the many doctors and other providers involved in her care at CMH somehow collectively failed to tell her the alarming results of her June 2012 chest X-ray,” Byrd wrote.

Bolton’s lawyers pointed to an “exceptional circumstances” good cause exception allowing discovery of otherwise privileged hospital records in Va. Code § 8.01-581.17.

The protocols are a vehicle for Bolton’s lawyers to discover why and how her cancer went undiagnosed for two years, Byrd contended.

“This is plainly a case of extraordinary circumstances,” Byrd wrote.

Access allowed

The parties argued the issue at the Boydton courthouse May 17 and Osborn ruled from the bench. The judge granted the motion to compel production of the policies and procedures, according to Byrd.

“One of the key issues to Judge Osborn was that the hospital could not explain what happened to the X-ray report. He ultimately ruled that the policies were not privileged by the statute, but that, even if they were privileged, the extraordinary-circumstances exception applied,” Byrd said.

The hospital was represented by Michelle L. Warden of Richmond. She did not respond to a request for comment.