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Biopsy slide photos not discoverable

Virginia Lawyers Weekly//April 16, 2020

Biopsy slide photos not discoverable

Virginia Lawyers Weekly//April 16, 2020//

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Where defendant doctor’s counsel in this medical malpractice case directed her to photograph plaintiff’s biopsy slides, the photos are attorney work product.

Plaintiff alleges that defendants misdiagnosed her with a specific cervical cancer, for which she received treatment. While deposing Dr. Sheth, one of the defendants, plaintiff learned that after she filed her suit, Sheth’s attorney directed her to take photographs of plaintiff’s biopsy slides.

Plaintiff has filed a motion to compel production of the photos. Defendant objected, citing work-product and attorney-client privilege.

The court concludes that the photos were made “in anticipation of litigation or for trial and thus are work product.” Under Rule 4:1(b)(3), discovery of work product material can be had if plaintiff demonstrates a substantial need and is unable, without undue hardship, to obtain the substantial equivalent of the sought-after material.

“[T]he Court concludes that Plaintiff has failed to demonstrate a substantial need or an inability to obtain the substantial equivalent. Specifically, when Plaintiff’s counsel deposed Dr. Sheth, she identified two of the thirteen biopsy slides that, in her opinion, supported her diagnosis. So, while there may be a need to have exact copies of the photographs that Dr. Sheth took, that need is far from substantial – particularly because the particular biopsy slides exist and Plaintiff can obtain – without undue hardship – the substantial equivalent of Dr. Sheth’s photographs from the existing biopsy slides.

“Plaintiff further asks to compel a re-deposition of Dr. Sheth – presumably to discuss the photographs that the Court has already concluded are work product. … [T]he Court does not appreciate how a re-deposition could avoid having Dr. Sheth either having to become (at least potentially) an expert witness against herself, or having her (at least potentially) disclose mental impressions, conclusions, opinions, or legal theories of Dr. Sheth’s counsel.”

The motion to compel and for another deposition of Dr. Sheth are denied.

Sweeney v. Dominion Pathology Assocs., et al. Case No. CL-19-1151. March 27, 2020; Roanoke Cir. Ct. (Carson). Grayson P Haynes, Nicholas V. Albu, Timothy McElvoy, Laura P. Liebowitz, Cameron McElvoy for the parties. VLW 020-8-026, 3 pp.

VLW 020-8-026

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