Fleming v. Mountain States Health Alliance et al

Filing 75

MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 5/25/12. (ejs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
SHARON L. FLEMING, Administrator )
of the Estate of Paul K. Fleming, deceased )
)
Plaintiff,
)
)
v.
)
)
)
MOUNTAIN STATES HEALTH
)
ALLIANCE d/b/a Russell County
)
Center
)
)
Defendant.
)

Civil Action No. 1:11cv00050
MEMORANDUM
OPINION

This case is before the undersigned on the plaintiff Sharon L. Fleming’s
Motion To Compel, (Docket Item No. 36) (“Motion”). A hearing was held before
the undersigned on May 21, 2012. Based on the arguments and representations of
counsel heard before the undersigned on May 21, 2012, and for the reasons set out
below, the Motion will be granted.

I.

This case arises from a fall sustained by Paul K. Fleming, the plaintiff’s
decedent, on January 17, 2010, after being admitted to the hospital for treatment of
progressive pneumonia a week earlier. Mr. Fleming’s fall risk had been assessed
as a 16 on January 16, 2010, and a bed sensor was in use on that day. However, at
the time of Mr. Fleming’s fall in the early morning hours of January 17, 2010, the
bed sensor was turned off. Mr. Fleming went to the bathroom, where he slipped,
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fell and hit the back of his head. When Mr. Fleming’s treating physician was
notified of the fall, “Fall Protocol I” was initiated. Mr. Fleming’s fall resulted in a
subdural hematoma from which he died later that same day.

The Motion seeks the following documents corresponding to Requests for
Production 4, 5, 6 and 7, respectively:

(4) any and all fall prevention policies that Russell County Medical
Center had in place on January 17, 2010;
(5) any and all in-service training manuals and documents given to
Robin Jessee, Amanda Hess, Brandon Whited, Audrey Compton, “M.
Shelton, RN,” Wanda Armes or Jamie Burk prior to January 18, 2010;
(6) any and all policy documents and in-service training on bed
alarms, including, but not limited to, policies regarding the
installation, deactivation, reactivation and withdrawal of the bed
alarm; and
(7) any documents responsive to Interrogatory 7, which asks for the
identification of any and all incident reports created as a result of Mr.
Fleming’s January 17, 2010, fall.

The defendant objected to Request for Production 4, the hospital’s fall
prevention policies effective on the date of Mr. Fleming’s fall, on the ground that
any such policies and procedures are privileged under Vriginia Code §§ 8.01-58116, 8.01-581.17, which will hereafter be referred to as the “quality assurance
privilege.” It further objected on the ground that the request sought to obtain its
private rules which it claims are irrelevant and inadmissible under Virginia law
pursuant to Pullen & McCoy v. Nickens, 310 S.E.2d 452 (Va. 1983), and also
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noting that, in Virginia, the applicable standard of care in a medical malpractice
case is provided by Virginia Code § 8.01-581.20 and established through expert
testimony. The defendant objected to Request for Production 5, the in-service
training manuals and documents given to Mr. Fleming’s nursing staff, on the
ground that it was overly broad, unduly burdensome, irrelevant to the issues in the
case and not reasonably calculated to lead to the discovery of admissible evidence.
Likewise, the defendant objected to Request for Production 6, the documents and
in-service training manuals on bed alarms, as overly broad, unduly burdensome,
irrelevant to the issues in the case and not reasonably calculated to lead to the
discovery of admissible information. It further objected to this request on the
ground that such policies and procedures are privileged under the quality assurance
privilege and that, to the extent the request sought to obtain its private rules, they
were irrelevant and inadmissible.

The defendant objected to Request for

Production 7, the incident reports relating to Mr. Fleming’s fall, to the extent that it
seeks to discover materials privileged by the attorney-client privilege, the workproduct doctrine and/or the privilege afforded to materials generated and steps
taken in anticipation of and in the defense of litigation.

The defendant also

objected on the ground that such information is privileged under the quality
assurance privilege.

II.

As an initial matter, I will address the defendant’s argument that the Motion
should be denied as untimely because it was filed subsequent to the cutoff for
discovery. Pursuant to this court’s Scheduling Order entered on October 26, 2011,
the parties agreed to a discovery plan which required that all discovery be
conducted on or before April 27, 2012. The defendant contends that the Motion is
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untimely because it was filed on April 30, 2012, three days after the discovery
cutoff date. I disagree. By entering this Scheduling Order, the court did not intend
to require that any such motion to compel be filed before the cutoff for discovery.
As stated in the Scheduling Order, the court intended that written discovery was to
be served in sufficient time to allow a response before the discovery cutoff date.
Here, the plaintiff sent the Supplemental Interrogatories and Request for
Production of Documents and Plaintiff’s Request for Admission to Defendant on
March 19, 2012. (Exhibit A to Docket Item No. 51). The defendant was able to
respond thereto on April 9, 2012, approximately three weeks prior to the discovery
cutoff date. (Ex. B to Docket Item No. 51). Also, plaintiff’s counsel required
some time to review the discovery responses and confer with defense counsel
before filing the Motion.

It is for these reasons that I find the defendant’s

untimeliness argument unpersuasive.

Next, this court recognizes that there is a split among the circuit courts in
Virginia regarding whether a health care provider’s policies, procedures and
protocols are privileged materials pursuant to Virginia Code §§ 8.01-581.16, 8.01581-17 (2011 Cum. Supp.).1 The Virginia Supreme Court has not addressed this
issue. Virginia Code § 8.01-581.17 is entitled “Privileged communications of
certain committees and entities.”

The relevant portions of this statute are as

follows:

B. The proceedings, minutes, records, and reports of any (i) medical
staff committee, utilization review committee, or other committee,
board, group, commission or other entity as specified in § 8.01581.16; (ii) nonprofit entity that provides a centralized

1

Virginia Code § 8.01-581.16 provides that members of or consultants to certain boards
or committees have civil immunity.
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credentialing service; or (iii) quality assurance, quality of care, or
peer review committee … together with all communications, both
oral and written, originating in or provided to such committees or
entities, are privileged communications which may not be
disclosed or obtained by legal discovery proceedings unless a
circuit court, after a hearing and for good cause arising from
extraordinary circumstances being shown, orders the disclosure of
such proceedings, minutes, records, reports, or communications. …
Nothing in this section shall be construed as providing any
privilege to any health care provider … with respect to any factual
information regarding specific patient health care or treatment,
including patient health care incidents, whether oral, electronic, or
written.
However, the analysis, findings, conclusions,
recommendations, and the deliberative process of any medical staff
committee, utilization review committee, or other committee,
board, group, commission, or other entity specified in § 8.01581.16, as well as the proceedings, minutes, records, and reports,
including the opinions and reports of experts, of such entities shall
be privileged in their entirety under this section.
C. Nothing in this section shall be construed as providing any
privilege to health care provider, emergency medical services
agency, community services board, or behavioral health authority
medical records kept with respect to a patient, whose treatment is
at issue, in the ordinary course of business of operating a hospital
… nor to any facts or information contained in medical records,
nor shall this section preclude or affect discovery of or production
of evidence relating to hospitalization or treatment of such patient
in the ordinary course of the patient’s hospitalization or treatment.
…
The parties agree that there are no written circuit court opinions from the
Twenty-Ninth Judicial Circuit2 addressing this issue.

After reviewing several

Virginia circuit court cases, some finding that the quality assurance privilege
extends to policies, procedures and protocols, and some finding that the privilege

2

The Twenty-Ninth Judicial Circuit encompasses the following counties in Virginia:
Buchanan, Dickenson, Russell and Tazewell.
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does not so extend, I am of the opinion that those cases declining to extend the
privilege are the better-reasoned ones.

Specifically, I find that the Virginia

General Assembly, in enacting this quality assurance privilege, intended to
promote open and frank discussion during the peer review process among health
care providers with the ultimate goal of improving the quality of health care. See
Mejia-Arevalo v. INOVA Health Care Servs., et al., 77 Va. Cir. 43 (Fairfax County
2008); Auer v. Baker, 63 Va. Cir. 596 (Norfolk 2004); Francis v. McEntee, 10 Va.
Cir. 126 (Henrico County 1987). As the Roanoke City Circuit Court stated in
Johnson v. Roanoke Mem. Hosps., 1987 Va. Cir. LEXIS 86, at *5 (Roanoke 1987),
I find that “the ultimate end results of such critiques, which might find their way
into depersonalized manuals of procedure and which have been shorn of individual
criticisms, do not merit the same concern for protection from public scrutiny.” As
the Fairfax County Circuit Court held in Estate of Curtis v. Fairfax Hosp. Sys.,
Inc., 21 Va. Cir. 275, 277-78 (Fairfax County 1990), the rationale is that discovery
of such policies, procedures and protocols does not threaten open discussion and
debate within hospitals’ review committees and, therefore, the privilege should not
apply.

Aside from the quality assurance privilege, some courts also have found that
such policies, procedures and protocols should be shielded from discovery under a
rationale similar to that which prevents their introduction into evidence. “Virginia
has long recognized that admitting internal standards of conduct into evidence
allows prudent men to be deemed civilly liable if they violate the higher standards
of caution they take upon themselves, independent of the law’s requirements.”
Mejia-Arevalo, 77 Va. Cir. at 48 (citing Va. Ry. & Power Co. v. Godsey, 83 S.E.
1072 (Va. 1915)).

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The parties do not dispute that the standard of care in a medical malpractice
case, such as this one, is statutorily prescribed as follows:

In any proceeding before a medical malpractice review panel or in any
action against a physician, clinical psychologist, podiatrist, dentist,
nurse, hospital or other health care provider to recover damages
alleged to have been caused by medical malpractice where the acts or
omissions so complained of are alleged to have occurred in this
Commonwealth, the standard of care by which the acts or omissions
are to be judged shall be that degree of skill and diligence practiced by
a reasonably prudent practitioner in the field of practice or specialty
in this Commonwealth and the testimony of an expert witness … as to
such standard of care, shall be admitted ….
VA. CODE ANN. § 8.01-581.20 (2011Cum. Supp.) (emphasis added).
In Va. Ry. & Power Co. v. Godsey, 83 S.E. 1072 (Va. 1915), the Virginia
Supreme Court held that the private rules of a defendant street car company were
not admissible to establish the standard of care owed the plaintiff by the defendant.
The rationale behind the Godsey court’s holding was that to allow the admission
into evidence of a party’s private rules, which might require a much higher degree
of care than mandated by the law, would discourage the adoption of such higher
standard of care for fear that it would be used against the party. The Godsey court
reasoned that if the adoption of such rules was treated as an admission against the
party, then the party naturally would find it in its interest not to adopt any rules at
all.

See 83 S.E. at 1073.

Several years later, the Virginia Supreme Court

reaffirmed the holding in Godsey in Pullen & McCoy v. Nickens, 310 S.E.2d 452
(Va. 1983).

I am unpersuaded by the defendant’s argument that its policies, procedures
and protocols are not discoverable under the Godsey and Pullen cases because they
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are irrelevant and inadmissible. First, I find that the hospital’s policies, procedures
and protocols regarding fall prevention and the use of bed alarms is relevant to the
plaintiff’s case. For instance, as plaintiff’s counsel argued at the May 21, 2012,
hearing, Mr. Fleming’s medical record shows that he was assessed as a fall risk of
“16” hours before he fell, and it further shows that subsequent to his fall, his
treating physician ordered that “Fall Protocol I” be initiated. (Plaintiff’s Exhibit
1). While the standard of care is statutorily prescribed, the hospital’s policies,
procedures and protocols regarding what measures should have been implemented
for a patient with a fall risk of 16 and should be done when “Fall Protocol I” is
initiated certainly is relevant to determining whether the defendant acted with the
requisite “degree of skill and diligence practiced by a reasonably prudent
practitioner. …” These are only two examples of how such policies, procedures
and protocols as sought by the plaintiff could be relevant to this case.

The court wishes to make clear that it is not making a determination as to the
admissibility of these policies, procedures and protocols on the topics sought by
the plaintiff. That determination is one for the trial judge at a later date. The court
is finding only that these policies, procedures and protocols are discoverable.

Next, I find that the in-service training manuals given to Mr. Fleming’s
nurses prior to January 18, 2010, and the in-service training manuals regarding the
use of bed alarms, are relevant to the instant case.

For example, while the

defendant contends that the real issue, based on the plaintiff’s own standard of care
expert’s opinion, is whether Mr. Fleming and his family members were educated
on the use of a bed alarm, not the nursing staff, it is apparent that such education
would be given to the patient and his or her family by the nursing staff. That being
the case, I find that the in-service training manuals are relevant to show what
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education the patient and family members should have received.

Of course,

whether or not such education was provided is relevant to whether the defendant
met the statutorily prescribed standard of care.

I note that the defendant also has argued that requests for production of the
in-service training manuals are overly broad and unduly burdensome. The party
resisting discovery has the burden of showing that the requested discovery is
overly broad or unduly burdensome. Here, the defendant has not offered any
explanation as to why such requests are overly broad or unduly burdensome. That
being the case, I find that the defendant has failed to meet its burden, and I will
overrule these objections. It is for all of the above-stated reasons that I find that
the in-service training manuals sought by the plaintiff are relevant and
discoverable.

Lastly, the plaintiff seeks the production of any incident reports of Mr.
Fleming’s January 17, 2010, fall. While the defendant contends that no such
incident reports exist, it has disclosed the existence of two documents that are
potentially responsive to this request. First, it has identified a “Variance Report”
and second, an “Incident Report Followup.” The defendant maintains that these
documents contain identical factual information regarding Mr. Fleming’s fall as
that contained in his medical records, to which the plaintiff has access. However,
in addition to the factual information, defense counsel represented to the court that
these documents also contain “deliberative information.”

Virginia Code § 8.01-581.17 states as follows: “Nothing in this section shall
be construed as providing any privilege to any health care provider … with respect
to any factual information regarding specific patient health care or treatment,
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including patient care incidents ….”

Incident reports have been found

discoverable in several circuits in the Commonwealth. See Hurdle v. Oceana
Urgent Care, 49 Va. Cir. 328 (City of Norfolk 1999); Bradburn v. Rockingham
Mem. Hosp, 45 Va. Cir. 356 (Rockingham County 1998); Huffman v. Beverly Cal.
Corp., 42 Va. Cir. 205 (Rockingham County 1997); Messerley v. Avante Group, 42
Va. Cir. 26 (Rockingham County 1996); Benedict v. Community Hosp. of Roanoke
Valley, 10 Va. Cir. 430 (Medical Malpractice Review Panel 1988); Atkinson v.
Thomas & Va. Beach Gen. Hosp., 9 Va. Cir. 21 (Va. Beach 1986). Additionally,
Virginia Code § 8.01-581.17(C) creates an exception to the privilege set forth in
subsection (B), making patient records kept in the ordinary course of business
discoverable. In Witzke v. Martha Jefferson Surgery Ctr., LLC et al., 70 Va. Cir.
217, 220 (Albemarle County 2006), the court held that under Virginia law, a
factual incident report is not work product and is not protected from discovery by
statute. That court further held that because there was no evidence that the incident
report at issue was a report specially prepared for quality assurance purposes, it
was a medical record kept with respect to the patient in the ordinary course of
business of operating a hospital and was, therefore, discoverable. See Witzke, 70
Va. Cir. at 220. In Eppard v. Kelly, 62 Va. Cir. 57, at *63 (Charlottesville 2003)
(quoting Bradburn, 45 Va. Cir. at 360-61)), the court held that “peer review”
should not be used to shield from disclosure medical records not generated initially
for peer review objectives. That court found it to be an “impermissible reading of
the statute to extend the privilege to cover all factual reports or incident reports of
accidents that happen at a hospital simply because they are sent to a quality
assurance committee.”

Despite defense counsel’s representation that the Variance Report and the
Incident Report Followup were created for its quality assurance process, used by
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the hospital’s quality assurance committee and submitted to the hospital’s Patient
Safety Organization, it has not offered any evidence to persuade the court that such
is the case.

In the same vein, although the defendant contends that these

documents contain deliberative information, it has failed to meet its burden of
persuasion. To the extent that the defendant contends that the Variance Report and
the Incident Report Followup are privileged pursuant to the attorney-client
privilege and the work-product doctrine, the defendant simply has offered no
evidence to support such contentions. See N.L.R.B. v. Interbake Foods, LLC, 637
F.3d 492, 501 (4th Cir. 2011) (citing United States v. Jones, 696 F.2d 1069, 1072
(4th Cir. 1982)) (a party asserting privilege has the burden of demonstrating its
applicability). Specifically, the defendant does not allege that these documents
contain any communication between counsel and the defendant regarding this case,
nor does it allege that the documents contain counsel’s mental impressions or were
prepared by an attorney in anticipation of litigation.

It is for all of the reasons stated herein that I will grant the Motion and order
the defendant to produce the requested documents.

An appropriate order will be entered.

ENTER:

May 25, 2012.

Pamela Meade Sargent

/s/
UNITED STATES MAGISTRATE JUDGE

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