Attorneys’ fees ordered as discovery sanction

Where plaintiff did not disclose, in response to defendant’s discovery request, a medical care provider he consulted for a second opinion in this medical malpractice case, plaintiff must pay defendant’s attorneys’ fees relating to the discovery violation.

Background

Plaintiff sued Sentara Virginia Beach General Hospital, alleging that Sentara’s nurses negligently managed his bladder in connection with his knee surgery. During discovery, Sentara asked plaintiff to disclose all health care providers he consulted with since his surgery, and to state the dates of treatment, the treatment’s nature and any prognosis or diagnosis made.

Plaintiff identified eight treating medical providers and furnished only their contact information. Plaintiff, however, did not disclose that he had seen a doctor at Johns Hopkins in Baltimore for a second opinion. An office note in plaintiff’s medical records indicates that plaintiff reported that the Johns Hopkins doctor told him “there was nothing that could be done.”

In response to Sentara’s request, plaintiff signed a release, valid for one month, for Sentara to obtain the Johns Hopkins records. The authorization expired on Oct. 1, 2019, before Johns Hopkins could fulfil the request.

In December 2019, defense counsel requested more information from plaintiff about the Johns Hopkins consultation. Plaintiff signed a new authorization. Sentara obtained the records on Jan. 21, 2020. Plaintiff’s deposition and mediation, scheduled for Jan. 22 and 23, respectively, were cancelled. Sentara filed a motion for sanctions for discovery violations on Feb. 7, 2020.

The records

The Johns Hopkins records revealed that plaintiff consulted with Dr. Johnson, who told plaintiff that his bladder condition had “likely occurred over the span of many years and that this is not the result of a bladder injury sustained from surgery and spinal anesthesia.”

Sentara seeks sanctions, arguing that plaintiff, his counsel, or both deliberately concealed the Johns Hopkins records, which, defense counsel concluded, was “obviously quite harmful to Plaintiff’s theory that Sentara caused his bladder problems[.]”

Defense counsel argues that plaintiff’s counsel had represented that there was nothing in the records “‘of substance/interest’ worth holding up Plaintiff’s deposition or mediation.”

Plaintiff and his counsel have submitted affidavits. Plaintiff’s counsel avers that failing to identify Dr. Johnson and providing contact information was an “oversight.” He stated that his client told him about his visit with Dr. Johnson and that nothing could be done but did not tell him about Johnson’s statements regarding the cause of his bladder problems.

Plaintiff avers that he read the interrogatory answers before signing them and did not notice that Dr, Johnson was not listed as a doctor he had seen after his knee surgery. He said he did not intend to conceal that Dr. Johnson saw him “‘nor what I had been told by Dr. Johnson.’”

Decision

“The only facts before the court in support of the motion are those recited in the pleadings and in the Affidavits.” The facts in the affidavit “are not inherently incredible. It might be suspicious and uncannily coincidental that this particular harmful record was the one that both the client and the lawyer forgot about, but the Affidavits state that the omission was inadvertent. The Court therefore has no basis to conclude otherwise.

“Even inadvertent discovery failures such as this can support a motion for sanctions, which the Court holds are warranted in this case.”

Plaintiff’s counsel never supplemented the interrogatory answers. The affidavit “includes no representation” that he asked his client for more information once Sentara asked for authorization to obtain the Johns Hopkins records. Further, “counsel never outlined any attempt that he made to obtain that record despite his knowledge that it existed.”

Sentara has requested sanctions that “should be reserved for intentional concealment or misconduct, which is not presented here. The Court does not consider taking an issue away from the jury an appropriate sanction for failing to supplement discovery.”

However, the court will award defendant attorneys’ fees related to plaintiff’s failure to disclose the Johns Hopkins record, including defense costs in preparing and submitting the motion for sanctions to the court.

Robbins v. Sentara Hospitals, Case No. CL19-6344 (Order). March 9, 2020; Norfolk City Cir. Ct. (Hall) Carlton F. Bennett, Mary Elizabeth Sherwin, Alan B. Rashkind for the parties. VLW 020-8-046, 8 pp.