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Plaintiff wins access to nursing home training materials

nursinghome1_mainAnother judge has allowed a medical malpractice plaintiff to examine health care training materials over the objection of a defendant nursing home.

Gloucester County Circuit Judge Designate William H. Shaw III – a retired Middle Neck judge – allowed discovery of the documents sought without ruling on their admissibility.

Medical providers often have sought to block access to internal training documents and similar protocols, saying it would be improper to judge medical care in court using private rules and standards that might be more stringent that the applicable standard of care.

Plaintiffs’ lawyers say discovery can provide perspective on the applicable standard and may yield other relevant information.

Shaw’s opinion – memorialized in a 2-page, Oct. 27 opinion letter and a Dec. 22 order – is Cherrie v. Virginia Health Services Inc. (VLW 017-8-118).

Nursing home fall

The case was a wrongful death action arising from the fall of patient Gerda Harvey at the Walter Reed Convalescent & Rehabilitation Center in Gloucester. Owner Virginia Health Services described the facility as the “premier nursing home in Gloucester County.”

Harvey’s estate and surviving daughters sought $4.45 million for the fall and resulting death of Harvey, according to plaintiff’s lawyer Avery “Sandy” Waterman Jr.

In his bid for training materials, Waterman cast a wide net. He sought information about “grand rounds, orientation, in-services, staff development instruction, computer-based learning, and/or other teaching” about a long list of subjects.

Items sought were “about nursing rounds, toileting, and other monitoring or attending of patients; fall risk assessments of patients; about using, activating and checking chair and/or bed alarms for patients; about using mats for patients; about other ‘fall risk’ interventions for patients; about fall and injury charting and other documentation for patients; about post-incident assessment and care of patients who have fallen; and/or about notifying doctors and family of patient falls and injuries.”

Discovery ordered

Over the objection of the defendant nursing home, Shaw granted Waterman’s motion to compel discovery of the items.

“I make no ruling about the admissibility of the documents, but even if they were not admissible over objection, they are relevant to the plaintiff’s trial preparation and case assessment as a check against or comparison of the required standard of care opined by the experts of both parties,” Shaw wrote, adding, “Of course, the standard of care issue is central to this case.”

The nursing home owner sought and received a protective order. Other parties and their counsel were prohibited from disclosing the training materials to anyone other than the parties, the lawyers and deposition witnesses from the nursing home.

The defendant nursing home was represented by R. Barrow Blackwell of Williamsburg. He did not respond to a request for comment.

Ongoing issue

Courts were seen as split on the discovery of training materials in 2002. VLW reported on a circuit court ruling that year (VLW 002-8-229) allowing a plaintiff access to a nursing home’s policies and procedures on treatment of ulcers and document retention.

The issue emerged again in 2012 with a federal magistrate judge ruling that a wrongful death plaintiff could get hospital internal practices and procedures (VLW 012-3-218).

Training materials sometimes reveal information unrelated to the standard of care. In a 2012 case, a nursing home plaintiff uncovered training materials that actively discouraged the use of bed alarms by characterizing the devices as “restraints.”

The patient’s lawyer told VLW he introduced evidence that the defendant discouraged use of bed alarms throughout its chain of 31 Virginia nursing homes. The lawyer reported a $6.5 million verdict for an 84-year-old fall victim in that case.

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