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Virginia: Medical Malpractice – a Lawyer’s Citation

Virginia: Medical Malpractice – a Lawyer’s Citation

The recent letter opinion in Hairston v. Eliacin of Honorable David A. Melesco, Judge for Circuit Court of Danville, Franklin County and Pittsylvania County, Virginia, reaffirms the continuing vitality of Mr. Waterman’s landmark medical malpractice case, Riverside Hosp., Inv. v. Johnson, 272 Va. 518 (2006), and its progeny. The Virginia Supreme Court in Riverside and numerous circuit courts subsequently pronounce that “factual information of patient care” is not privileged under Va. Code Ann. §8.01-581.17 and, concomitantly, uphold the discoverabililty and even admissibility of facts contained in incident reports, electronic databases, and other materials of peer review and other quality care committees.

Distraught over the transparency ushered by Riverside and its progeny, medical malpractice defense interests spearheaded the Virginia General Assembly’s passage of a compromise amendment to §8.01-581.17 in its 2011 Session. That becomes effective on July 1, 2011.

Significantly, however, Judge Melesco in Hairston opined that all of the patient care factual information in a medical center’s Peer Review and Quality Control Committee (“PR&QCC”) document was not privileged under Riverside or the new §8.01-581.17 amendment. Interestingly, the medical center in the Hairston medical malpractice case unsuccessfully attempted to use a self-serving Affidavit of its PR&QCC head to float its privilege claim; and the medical center moved to quash plaintiff’s witness subpoena for its “most knowledgeable person” on the topic, plus its counsel of record even refused to answer any questions about how the patient’s factual information came to be parked in its PR&QCC document.