In November of 2006, the Supreme Court of Virginia decided Riverside Hospital v. Johnson, which held that information regarding an adverse medical incident is not privileged simply because it has been used in a health care provider's peer review or quality assurance process. If it contains no committee discussion and reflects no committee action, patient care incident information is not the type that must "necessarily be confidential" to allow for participation in such a process. Since its publication, we have been waiting to see how Virginia circuit courts would apply the holding in Riverside Hospital.
The Portsmouth Circuit Court recently provided an example when it ordered the production of documents in Matthews v. Maryview Hospital, Case No. CL07-1401. The documents included a "Medication Quality Care Report" and transcripts of statements made to hospital management by two nurses. The court granted the plaintiff's motion to compel production despite the defendant's claim that all three were protected under Virginia Code sections 8.01-581.16 and 8.01-581.17, and that the nurses' statements were also protected under the "work product doctrine." Code section 8.01-581.17 protects documents created by hospital committees that collect and review data for the purpose of improving patient care and safety. Code section 8.01-581.16 provides civil immunity to those who serve on, or consult such committees.
Because of the factual similarity, the decision in this case was based largely on the ruling in Riverside Hospital. The court held that the process of patient safety evaluation requires the review of incidents that have occurred in the facility, and the use of such information in the peer review process is insufficient to automatically cloak it with the protection of non-disclosure. Factual patient care information that does not contain any committee discussion is not within the scope of the statutory privilege. After an in camera review of the documents in this case, the court found that they were subject to production because they were factually related to the plaintiff/patient and they contained no committee discussion or action.
With respect to the claim of privilege under the work product doctrine, the court stated that a case-by-case evaluation was appropriate, and inquired into the purpose for which each document was created. The court acknowledged the argument that every event in which a patient is endangered may lead to litigation, but found that other reasons also exist for collecting and recording such information. Specifically, a hospital has a "business purpose" -- an interest in developing management systems for the prevention of errors -- for which this kind of information could be collected.
The court then weighed the likelihood that the records were created for a business purpose against the likelihood that they were prepared in contemplation of litigation. Based, in part, on the fact that no litigation was pending and none had been threatened at the time they were created, it was determined that the documents were prepared for management purposes. The court held that an alternative finding, which would protect the documents as work product, would require speculation regarding the probability of future litigation. Using the "reasonable person" standard, the court could not conclude that litigation was probable, and therefore, the documents were subject to discovery.
As a result of Riverside Hospital, and now Matthews, it appears that it will be significantly harder for hospitals and other healthcare providers to protect documents containing factual patient care incident information from disclosure in litigation.
