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Peer review privilege waived over discovery

Emergency ER Hospital MAINA Montgomery County judge ordered a hospital to turn over its peer review reports to lawyers pursuing a wrongful death medical malpractice claim after concluding the hospital had waived the privilege protection through discovery lapses.

The judge ruled that hospital lawyers acted in bad faith with “woefully inadequate” discovery responses and in asserting privilege for a document they had not reviewed.

The decision by Circuit Judge Marcus H. Long Jr. marks another guidepost for lawyers navigating the murky waters of privilege protections for medical peer review documents. Long’s opinion addressed not just Virginia law, but also a federal patient safety law cited by the hospital.

The case is Creasy, Admr. v. Medical Assocs. of Southwest Virginia Inc. (VLW 018-8-034).

Cardiac procedure, follow up care at issue

The deceased patient had been a nurse at the same hospital where she received treatment for a heart condition in 2016. Joan Evelyn Creasy suffered internal bleeding and died of cardiac arrest after a cardiac catheterization at LewisGale Hospital Montgomery, according to allegations in a second amended complaint.

The Creasy estate sued two medical practices, a doctor and the hospital. The estate claimed the surgeon and others who provided follow up care failed to discover and repair Creasy’s bleeding.

Discovery proved thorny. In response to a request for documents, the hospital identified several sets of documents withheld on the basis of the peer review privilege. Among these was a “root cause analysis,” or RCA.

Descriptions lacking, plaintiff claimed

A privilege log provided April 13 stated that the RCA was “prepared for purposes of improvement of patient safety and quality of care.” The privilege log also identified a hospital peer review report and handwritten notes collected in the weeks following Creasy’s death, likewise prepared for patient safety purposes.

Lawyers for the Creasy family protested that – not only were the documents lacking any real description – the hospital was claiming privilege for a document the hospital’s lawyers had never seen. Les S. Bowers of Charlottesville said he understood that the hospital did not even provide its own lawyers with access to the RCA.

Despite six months of pressure for more complete information, the hospital served “multiple deficient, deceptive privilege logs,” the plaintiff’s lawyers alleged.

Hearing

At an April 16 hearing, hospital attorney Anne M. Glenn of Glen Allen acknowledged she had not seen the RCA. She nevertheless said the hospital was compelled to keep the disputed records under wraps.

“[I]t’s our view that the hospital is in an untenable position. There is federal law that prevents the hospital from producing patient safety work product … without creating liability for the hospital and incurring fines. There is also explicit language in Virginia’s peer review statute, 8.01-581.17 … that creates a privilege for the hospital’s peer review report,” Glenn told Long at the hearing, according to a transcript.

Long said the hospital failed to provide an adequate description of the withheld materials to justify the claimed privilege.

“You didn’t describe one single solitary document that you’re claiming the privilege to now, did you?” Long said.

Glenn explained the RCA is “essentially the hospital’s quality analysis of what transpired. It usually … involves a timeline, a review of what happened, what didn’t happen, and an analysis of … that information.

“It’s our view … that the federal statute governs here. It preempts state law and it creates a mandatory protection,” she said.

Glenn said the hospital’s peer review report was prepared by an interventional cardiologist who reviewed the case, and that report should be protected by the state statute.

Bowers argued the hospital had lost the right to claim protection for the materials. “[A]t this point, they’ve waived the privileges,” he told Long.

Opinion and order

Long said he had been considering defaulting the hospital on liability for its “woefully inadequate responses,” but he declined to impose that penalty. In an April 16 opinion letter, the judge ruled the hospital had waived any privilege under the state peer review statutes by failing to provide a proper privilege log and evidence to support the claimed privilege.

He said the hospital also waived any protection under the federal Patient Safety and Quality Improvement Act of 2005 by failing to properly disclose the disputed documents and meet standards for its privilege logs.

“PSQIA does not confer a blanket privilege,” Long wrote.

Continuing in his letter, Long found the hospital’s counsel “have acted in bad faith by failing to comply with the Rules of the Supreme Court of Virginia. Further, they have signed discovery responses claiming certain documents are privileged without reviewing the documents.”

Long said he would entertain a motion for attorney’s fees and expenses by the Creasy estate. He ordered the hospital to turn over the requested documents within two days. Long’s order, entered April 17, directed production of all information and documents withheld by the hospital based on an assertion of privilege or protection under either the state or federal laws.

Documents provided

The hospital turned over the documents, but it filed objections to Long’s order. The hospital said the state code’s peer review privilege does not belong to the hospital and may not be unilaterally waived by the hospital. It stated that neither the hospital nor its counsel waived any privilege.

“The Hospital and its counsel object and take exception to any findings that they did not comply with the Rules of the Supreme Court of Virginia or acted in bad faith during the course of discovery,” the objections read.

“The hospital and its attorneys responded to the discovery requests in compliance with federal and state law,” Glenn said when asked if the hospital had comment on Long’s decision.

Damaging documents

Bowers said the hospital’s documents were revealing.

“We found a large number of very important facts that were not set forth anywhere in Ms. Creasy’s medical records,” Bowers said in an interview April 25. Some of the information was “incredibly damaging to the hospital from a liability standpoint,” he added.

He said the Creasy lawyers had identified potential new defendants and avoided the running of the statute of limitations as to them. He said they also have taken steps to preserve all claims.

Bowers said the decision is significant because hospital systems are “routinely hiding facts within the guise of ‘peer review.’” The case is “proof that a lot of these cases are defended on – at best – shaky grounds,” Bowers said.

“Parties in health care liability cases are entitled to the facts,” Bowers said, adding, “Lawyers claiming privilege must look at the documents.”

Newport News lawyer Avery T. “Sandy” Waterman Jr. – who often litigates medical liability discovery issues – welcomed the fee-shifting language in Long’s order.

“It’s about time that sanctions were imposed. Defense abuse of medical malpractice privilege claims has been rampant – standard operating procedure – for decades,” Waterman said.

Despite what he termed a “sea change” in judicial rulings since the Supreme Court’s Riverside v. Johnson decision established a right of access to medical facts in 2006, defense attitudes and tactics had not changed, Waterman said. “Hopefully, sanctions will,” he said.

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