Nursing-home policy docs denied

The Supreme Court of Virginia says procedural rules block wrongful death plaintiffs from court-mandated access to nursing home policies and procedures.

The July 14 ruling in Cherrie v. Virginia Health Services Inc. (VLW 016-6-056) highlights efforts by patient’s lawyers to use Virginia health regulations to uncover policies and procedures at healthcare facilities outside of the usual discovery procedures.

While state regulations mandate nursing homes to have written policies and procedures available for patient review, a patient does not have a private right of action to enforce access to the policies in court, the justices said.

The regulations are promulgated by the state Board of Health and only the board is empowered to enforce them, the court ruled.

Nursing home fall cases

Two separate medical malpractice death cases were consolidated in the appeal. The lawyer for the patients’ families claimed the patients died from injuries caused by falls in nursing homes operated by defendant VHS.

The executors — represented by Avery T. “Sandy” Waterman Jr. of Newport News — asked the nursing homes to provide copies of all written policies and procedures in effect during the decedents’ stays.

The nursing homes refused, pointing to regulatory language requiring the policies be available to “residents and their designated representatives.”

Newport News Circuit Judge Timothy S. Fisher refused to order disclosure of the policies, holding that only current residents, not former residents, could bring an enforcement action under the regulations.

The estates appealed, saying the better interpretation was to authorize private rights of action for both current and former residents.

The Virginia Trial Lawyers Association backed the estates’ position. “Disclosure of the policies and procedures furthers the public interest and promotes the quality of care at nursing facilities,” the VTLA said in a friend-of-the-court brief.

Disclosure rejected on different grounds

The Supreme Court declined to “referee” the dispute over a broad or narrow interpretation of the access rule. Instead, the court held that the patients’ estates did not belong in court at all and affirmed dismissal of the bid for disclosure.

Nothing in the regulations “authorizes a private party to bring a civil action to enforce regulations of the Board of Health,” wrote Justice D. Arthur Kelsey for the unanimous court.

The court pointed to language that allows interested parties the opportunity to file administrative complaints against a noncompliant nursing home. The rules provide for board intervention to ensure compliance.

“We find in this statutory scheme multiple methods of enforcing the nursing homes’ regulatory duties, including the document-production requirement,” Kelsey wrote.

The court expressly rejected use of the state Declaratory Judgment Act to bring the issue into court. If allowed, “the Declaratory Judgment Act would operate as a roving statutory private right of action for anyone claiming to be injured by someone else’s violation of any statute,” the opinion read.

Although the circuit court dismissed the disclosure bid on a different basis, “we have the authority to affirm the court’s dismissal on any ground appearing in the record,” Kelsey wrote for the court.

Waterman called the decision a “disappointment,” but he said he will still make requests for such nursing home policies and will file complaints with the Board of Health if denied.

Waterman said language in the Cherrie opinion affirms the role that private parties play in the enforcement process and supports the contention that juries should be able to see and consider relevant policies.

“The fact the Department of Health requires by regulation that all nursing homes shall provide policies to patients ‘upon request’ obviously shows that the commonwealth does not consider healthcare facility policies to be ‘privileged’ as ‘protected committee’ materials or otherwise,” Waterman said.

He also said the opinion may prompt other nursing home malpractice lawyers to seek nursing home policies.

“It’s my expectation that the vast majority of plaintiffs’ lawyers out there are completely unaware of these regulations. So this is going to put it on everybody’s radar screen that the regulations exist,” Waterman said.

Roanoke’s Joseph M. Rainsbury hailed what he called a “very careful, thorough and excellent opinion.”

The use of the disclosure regulation should be no “epiphany” for plaintiffs’ lawyers, he said.

“I think the plaintiffs’ bar in nursing home cases is well aware of this regulation,” he said.