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Va. Cir.: Discoverable info includes entire care history

The estate of a nursing-home patient who fell and broke her hip, allegedly due to inadequate care, was entitled to broad discovery of the facility’s patient care records, personnel files, and financial information.


This is a negligence case brought by the Executor of Miriam Hirsch’s Estate, in which Miriam suffered a hip fracture when she fell on March 1, 2016, while she was a patient at Potomac Falls Health and Rehab Center, a nursing facility owned and/or operated by Defendants CCSP Nova LLC and Commonwealth Care of Roanoke, Inc.

The Estate alleges that Miriam was admitted to Potomac Falls with dementia, confusion, unstable gait, and a history of falling from bed. Miriam was known to the facility as a high fall risk, requiring active supervision and extensive assistance with her daily living activities, including toileting. In fact, she had fallen during a prior admission.

The Estate asserts that, prior to the fall, the Defendants’ staff failed multiple times to respond to her calls for help and that, on the evening in question, the staff had failed to respond to her call bells for toileting. Miriam thus attempted to toilet herself, resulting in her fall and a broken hip. The Estate also asserts that the Defendants negligently failed to (a) undertake adequate fall assessments of Miriam’s condition and/or document the results of such assessments in her record; (b) provide adequate care planning, including care planning for fall prevention; (c) provide adequate assistance with basic daily living activities, including hygiene and related care; ( d) timely respond to Miriam’s request of assistance through her call lights, forcing her to void urine or feces upon herself; ( e) provide adequate supervision of the staff, who would watch TV and use their phone while patient call lights went unanswered; and (f) provide Miriam with adequate assistance in consuming food and water, causing her to lose weight.

The Estate further claims that the Defendants’ willful, wanton, and reckless conduct via their management staff, as well as their ratification of such conduct undertaken by their employees, warrant an award of punitive damages.

The Estate served its initial discovery requests on May 8, 2017, seeking information on a variety of subjects. On August 7, 2017, the Defendants provided objections and responses to Plaintiffs interrogatories and document requests. The parties attempted to negotiate the scope of discovery in good faith, but disagreements persisted, and the Estate moved to compel discovery. The Defendants have objected.

Relevant evidence

In suggesting that the Estate’s discovery requests transcend the proper scope of discovery, the Defendants rely on a much too narrow reading of the applicable discovery principles. Virginia contemplates a rather liberal application of discovery rules in civil cases, allowing the discovery of any information that “is relevant to the subject matter involved in the pending action” or that is “reasonably calculated to lead to the discovery of admissible evidence.”

Here, the records and information requested are vital to determine the care Miriam received during her stay at Potomac Falls and to determine the causal effect, if any, that such care had on her fall and resultant injuries. Thus, the documents and information sought in the Estate’s discovery requests are directly relevant to its theories of liability, and Defendants’ attempt to narrow the scope of discovery is not well taken.

Medical Information. The Estate seeks to compel production of the Defendants’ complete medical records relating to Miriam’s stay in Potomac Falls, including all records, electronic data reports, notes, videos, photos, orders, tests, as well as recorded statements, commentaries, reports, notes, interviews or other communications relating to either Miriam, any friend, or Hirsch family member. Although the Defendants produced the written chart, the Estate claims they didn’t produce other documents regarding Miriam’s care and the fall at issue, including incident or event reports and other investigative reports, and electronic medical records.

The Defendants respond that the only unproduced document that may fall within this category is the event report, which they would have produced had the Estate agreed to a protective order. Nevertheless, the Defendants claim that the factual description of what occurred as contained in the event report has been provided to the Estate. But to the extent the Defendants claim the referenced event report is privileged, they would need to provide a privilege log, which they have not done. The court also notes that no request for a protective order is presently before the court. In sum, the Defendants have offered no reason for maintaining the confidentiality of the information contained in the referenced event report.

Furthermore, with respect to the requested electronic medical records, the Defendants object to the production of those records on the ground that the request is “intrusive” and seeks information that is “neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.” This objection is without merit. All of Miriam’s medical records pertaining to her stay at Potomac Falls are relevant to the Estate’s  negligence claim arising from Miriam’s fall. Moreover, the requested electronic data regarding Miriam’s care, including the audit trails and metadata associated therewith, constitute a part of her medical records to which the Estate is entitled pursuant to Code § 8.01-413.8.

For the above reasons, Defendants are compelled to produce the complete medical records in their possession relating to Miriam’s stay in their facility to the extent they have not yet done so.

Training Materials, Policies, and Procedures. The Estate further seeks to compel production of information regarding training provided to the Potomac Falls’ staff and the polices they were expected to follow. The Defendants respond that policies, procedures, and training materials related to licensing information, nutrition, weight loss and eating have nothing to do with the alleged fall.

The Defendants may be correct with request to licensing information, but they miss the mark as to the relationship between nutrition, weight loss, and eating and Miriam’s ability to get out of bed to relieve herself when there is no one to help her. Clearly, the less she eats and the lighter she becomes during her stay at Potomac Falls, the less strength she will have to support herself when forced to get out of bed by herself to use the bathroom.

Likewise, the issues of fall prevention, use of bed alarms, hygiene, admission and discharge, resident toileting, charting, staffing, responsible party and physician notification, resident assessment, care planning, and the use of bed rails, restraints, bedside commodes, bed alarms, and floor mats are all potentially relevant to the question of the Defendants’ liability for any damages suffered by Miriam as a result of her fall at Potomac Falls. At the very least, the Estate’s discovery requests regarding those issues may reasonably lead to the discovery of admissible evidence.

Although Defendants’ alleged negligence may have resulted in the single discrete event of Miriam’s fall, the scope of the Defendants’ negligence is clearly not limited to the precise moment of the fall itself, notwithstanding Defendant’s apparent claim to the contrary. It potentially extends to the entire period of Miriam’s stay at Potomac Falls and to all aspects of the care she received, or did not receive, during that stay. Thus, while policies and procedures that constitute private rules may not be admissible for purposes of determining the standard of care in a negligence case, they’re at least subject to discovery.

Hence, the requested training materials and policies and procedures are relevant or reasonably calculated to lead to the discovery of admissible evidence and are thus discoverable in this case.

Personnel Files of Staff Who Cared for Miriam. The Estate seeks to compel production of the personnel files for the Potomac Falls’ staff who were responsible for caring for Miriam and overseeing her care on the day of her fall and those that were involved in her care planning related to fall prevention. The Defendants object to producing the requested personnel files on the ground that they are “neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.” This objection is without merit. Indeed, the Defendants again appear to conflate discoverability with admissibility and focus inappropriately on the isolated incident of Miriam’s fall.

One of the central issues in this case is the Estate’s allegation that the Defendants provided staff not sufficiently trained to meet the needs of their nursing home residents, including Miriam. The Estate is thus entitled to know what training was received by the staff members who were responsible for monitoring Miriam’s condition, providing care to meet her basic daily needs, and planning her care with regards to fall prevention. Such information would no doubt be in the requested files. That information, as well as the other information possibly in those files, is clearly relevant.

Counsel are encouraged to submit an appropriate protective order regarding the personnel files or, alternatively, forthwith schedule the matter for argument.

Prior Complaints and Staffing Problems. The Estate seeks to compel production of similar complaint information regarding falls, resident hygiene, resident admission or discharge, and inadequate staffing, and fall data that the Defendants kept on patients from 2014 through March 2016, with patient names redacted. The Estate also sought the production of information on census and patient acuity, which is relevant to determine what the Defendants’ staffing levels should have been during the relevant time period.

Defendants respond that the standard of care is situation specific and dependent of factors present at the time. They further assert that even if one of the caregivers assigned to Miriam on the date of the fall had been reprimanded previously for failing to properly care for a resident, this reprimand would not be admissible to show she was negligence in her dealings with Miriam on the date of her fall. Likewise, they argue that the number of nurses or certified nursing assistants on duty does not show the nature and quality of care given to Miriam.

For reasons already addressed, the Defendants’ focus solely on the isolated incident of Miriam’s fall is without merit. Evidence of prior complaints is relevant to show notice or knowledge of a dangerous condition or defect. Such evidence is also relevant to show that previous conduct may be repeated. Contrary to the Defendants’ contentions, information regarding staffing at Potomac Falls in other parts of the facility on the day in question and on other days at the facility is relevant to the issue of whether Defendants had adequate staffing to meet Miriam’s basic daily living needs at the time of the subject fall.

Hence, the information the Estate seeks is subject to discovery, regardless of whether it is ultimately admissible at trial. Accordingly, Defendants are compelled to produce the requested information about prior complaints and staffing at Potomac Falls to the extent they have not yet done so.

Financial and Operational Documents. The Estate seeks to compel production of the Defendants’ balance reports, 10-ks, annual operating expenses, financial statements, and tax returns as relevant to the Estate’s claim for punitive damages. The Defendants contend that discovery of such documents should be delayed at least until the ruling on Defendants’ anticipated motion for summary judgment and, more likely, until after the court rules on a motion to strike the evidence at trial.

The Defendants seek, in essence, bifurcation of the issues of liability and punitive damages, at least for discovery purposes. This measure, however, is neither procedurally practicable nor appropriate under the alleged circumstances of this case. First, bifurcation would require that discovery be re-opened after the jury has found, based on the evidence presented at trial, that punitive damages are appropriate. Such a delay would likely require the need for a second, different jury to hear the evidence on damages, if the parties were unwilling to allow the court to determine punitive damages. Needless to say, any such delay in order to reopen discovery and then rehear much of the case would be burdensome and inefficient. The Defendants provide no actual reason, much less a compelling one, for putting the parties, the court, and any additional jury through such an ordeal. Moreover, there is no motion to bifurcate currently before the court. Until such a motion is made and heard, the Defendants’ argument is moot.

Second, the information sought is necessary to determine each Defendant’s role in the operation of Potomac Falls and whether they were engaged in a joint venture. Such information would clearly be relevant to the issue of each Defendant’s specific percentage of liability.

Accordingly, the Defendants are compelled to produce the requested financial and operational documents to the extent they have not yet done so. Counsel are again encouraged to submit an appropriate protective order covering the financial and operational documents, or forthwith schedule the matter for argument.

Interrogatories. The Defendants declare that they have answered the interrogatories cited in the Estate’s motion. They add, however, that additional staffing information requested therein “is not discoverable” because that “information will not prove an element of negligence related to [Miriam’s] fall nor will it lead to the discovery of admissible evidence.” For the same reasons already explained, these objections are overruled, and the Defendants are compelled to provide full and complete responses to the interrogatories to the extent they have not yet done so.

Motion to compel granted.

Hirsch v. CSP Nova LLC, Case No. 108222, Apr. 3, 2018. Loudoun Cir. Ct. (Fleming). VLW No. 018-8-040, 16 pp.

VLW 018-8-040