Accident Investigation in Medical Malpractice Cases
Brien Roche
The issue of accident investigation in personal injury cases has been addressed on another blogpost on this site. A careful review of that blog shoud be done before going furhter. That blog addresses the bright line rule by which some courts have adopted the view that if counsel has not become involved then the matters were not prepared in anticipation of litigation. Other courts have adopted the multi-factor analysis which could produce a different result. Regardless of what approach is taken if there is a showing of substantial need then the information is discoverable.
Work Product
In medical malpractice cases you may be dealing with risk management reports, incident reports, witness statements, root cause analyses or investigation materials. They are not privileged under the Virginia Work Product Doctrine. Riverside Hospital v. Johnson, 272 Va. 518, 530 (2006); In addition there are a multitude of case where such information has been ruled discoverable. Fleming v. Mountain States Health Alliance, 2012 U.S. Dist. LEXIS 72795, *16-17 (W.D., Va. 2012) (Variance Report and Incident Report follow-up); Flinchum v. INOVA, 84 Va. Cir. 530, 536 (Fairfax, 2012) (any documents regarding the facts surrounding the Defendant’s stay and her death); Morel v. Mary Immaculate Nursing Ctr., Inc., 2008 Va. Cir. LEXIS 209 (Newport News, 2008) (Event Report discoverable) ; Matthews v. Maryview Hospital, Inc., 74 Va. Cir. 283 (Portsmouth, 2007) (Incident report and witness statements discoverable); Licare v. Riverside Health Sys., 2007 Va. Cir. LEXIS 338 (Newport News, 2007) (Quality Management System database entries and any Event Report, Root Cause Analysis, investigations, emails and/or other printed electronic materials whatsoever discoverable); Justis v. Sentara Health Sys., 2007 Va. Cir. LEXIS 339 (Williamsburg, 2007) (incident report discoverable); Witzke v. Martha Jefferson Surgery Ctr., LLC, 70 Va. Cir. 217, (Albemarle, 2006) (incident report discoverable); Brown v. Lab. Corp. of Am., 67 Va. Cir. 232, 235 (Rockingham, 2005) (reports 1-3 months after death discoverable, despite deceased representative obtaining medical file and going to a lawyer); McDonald v. Sentara Med. Group, 64 Va. Cir. 30, 37 (Norfolk, 2004) (investigative reports and photographs discoverable but other documents may be subject to showing of substantial need); Benedict v. Cmty. Hosp. of Roanoke Valley, 10 Va. Cir. 430, 437-439, (Roanoke, 1988) (all statements and reports before claimant counsel appeared discoverable) and Atkinson v. Thomas, 9 Va. Cir. 21, 23 (Virginia Beach, 1986) (incident report discoverable).
Virginia Malpractice and Federal Patient Safety Statute
Va Code 8.01-581.17 and the 42 USC 299b-22 need to be looked at as far as any privilege.
In Hite v. Mary Immaculate Hospital, 105 Va. Cir. 121 (2020), the documents at issue were the risk manager’s notes and parts of two incident reports which supposedly contained deliberative analysis protected under the Virginia Medical Malpractice Act and the Federal Patient Safety and Quality Improvement Act of 2005. The nurse testified that she entered the information in both incident reports based upon first-hand observations. Virginia Code § 8.01-581.17 does not protect those reports. However the federal statute may protect deliberative analysis even though it not be that of a committee or board member.
Accident Investigation Medical Malpractice-Substantial Need
On the other hand finding “substantial need” is “within the trial court’s discretion and will be reversed only if the action taken was improvident and affected substantial rights.” Rakes v. Fulcher, 210 Va. 542, 546 (1970). There is no substitute for unique contemporaneous materials, including witness statements. Gutshall v. New Prime, Inc., 196 F.R.D 43, 46 (W.D.Va. 2000) (contemporaneous surveillance is “work product” but “substantial need” exists due to relevance, importance and substantial impact and no “substantial equivalent…without undue hardship”).
Death of a patient evinces “substantial need” for recipient’s responsive materials and “undue hardship to obtain the substantial equivalent”. McMillan v. Renal Treatment Ctr., 45 Va. Cir. 395, 397 (Norfolk, 1998) (facility report not privileged and, alternatively, “substantial need” and no “substantial equivalent without undue hardship” were shown where patient died.)
Accident Investigation Medical Malpractice-Potential Fraud on the Court
A claimed privilege does not permit a litigant to commit fraud upon a court. Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 141 (1992); Peterson v. Fairfax Hosp. Sys., Inc., 32 Va. Cir. 294 (Fairfax, 1993) (medical malpractice fraud attempted by the defense withholding investigative materials and asserting to the contrary of them). Rambus, Inc. v. Infineon Techs. AG, 222 F.R.D. 280, 290 (E.D. Va. 2004) (“crime/fraud exception extends to materials or communications created in planning, or in the furtherance of, spoliation of evidence”). Permitting a Defendant to keep factual materials under wraps from the Plaintiff allows him to perpetrate a fraud on the Court by self-servingly pitching a contrary defense to the jury when he knows it is untrue.
Call, or contact us for a free consult. Also for more info on medical malpractice see the Wikipedia pages. Also see the post on this site dealing with Accident investigation in personal injury cases.