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Motions to Compel Medical Records Disclosure Not Appealable After Non-Suit


A man arrived at a hospital's emergency room complaining of shortness of breath and chest pain. He died from cardiac arrest approximately four hours after arriving at the hospital. The personal representative of the decedent’s estate sued the hospital, hospitalist group, and emergency medicine group. The complaint alleged wrongful death and medical malpractice.

 

During the course of pretrial discovery, certain disputes arose. The personal representative filed her first motion to compel in which she requested production of the hospital's policies and procedures related to the management, care, and treatment of patients presenting with conditions such as the decedent, including cardiac monitoring. She also sought additional electronically stored information regarding the decedent 's evaluation and treatment.

 

The hospital responded that its policies and procedures were irrelevant, inadmissible, and privileged. The hospital also responded that every aspect of the decedent's electronic medical record had already been produced, but to the extent the personal representative wanted additional information regarding the electronic charting system, the hospital offered to make a corporate designee available for deposition.

 

The Circuit Court of the City of Fredericksburg denied the motion to compel, holding that the hospital's policies and procedures were not relevant, would not lead to discoverable evidence, and were privileged under the statutes. Regarding the electronic data, the trial court found that all relevant documents had been disclosed. It noted that if the personal representative wanted additional information on the electronic storage and data, she was free to depose a corporate designee on that matter. The personal representative never sought to depose a corporate designee regarding the electronic data issue.

 

The personal representative filed a second motion to compel in which she asked the trial court to order the hospital to produce its laboratory's reference range for test results measuring troponin, a protein complex indicating cardiac damage and the possibility of an impending heart attack. The hospital responded that a document it had already produced, the manufacturer's guidelines, was the only document responsive to the request that did not fall under the trial court's previous ruling that the hospital did not have to produce any of its policies or protocols. The trial court denied the motion to compel, and stated that it would accept the hospital's representations that no other responsive documents existed.

 

Prior to trial, the personal representative took a voluntary nonsuit. The personal representative then filed a new complaint in the same court and against the same defendants, alleging the same cause of action. The trial court entered an agreed order to incorporate “all discovery conducted and taken” in the non-suited action.

 

The case proceeded to trial and a jury returned a verdict in favor of the hospital, hospitalist group, and emergency medicine group. The personal representative filed a motion for a new trial and to reconsider certain evidentiary rulings. In this motion, the personal representative challenged the evidentiary rulings the trial court made in the nonsuited action when it denied her two motions to compel. She attached as exhibits her motions to compel, the hospital's opposition, the transcripts of the hearings on the motions to compel, and the trial court's orders denying the motions to compel.

 

The trial court denied the motion for new trial, and the personal representative appealed. On appeal the personal representative argued the trial court erred when it sustained defense objections to the estate's discovery requests for the hospital's troponin reference ranges and internal policies and for data and metadata regarding the decedent's electronically stored medical records.

 

The Supreme Court of Virginia affirmed. The court held that the discovery rulings made by the trial court in the prior, nonsuited action were not incorporated into the subsequent action, thus, were not properly before the court on appeal.

 

The trial court’s order in the subsequent action did not explicitly permit the motions to compel, transcripts of the hearings, or the trial court’s rulings on the motions from the non-suited action to be incorporated into the subsequent action. The court held that for any aspect of the non-suited action to be incorporated into the subsequent action, an order had to explicitly permit it. Although parties may file motions to compel and raise objections while they are engaged in the discovery process, the motions, objections, and trial court orders do not constitute discovery. When the trial court incorporated “all discovery conducted and taken” in the non-suited action, the interrogatories, depositions, documents, and requests for admissions from the non-suited action were incorporated into the subsequent action. However, the order did not incorporate the motions to compel, the objections, transcripts of the hearings or the trial court's rulings on the motions. Without this incorporation following the nonsuit, it was as if those motions, objections, and rulings never existed.

 

The Supreme Court of Virginia affirmed the judgment of the trial court that the discovery rulings made by the trial court in the prior, nonsuited action were not incorporated into the subsequent action.

 

See: Temple v. Mary Washington Hosp., Inc., 2014 WL 4493628 (Va., September 12, 2014) (not designated for publication).

 

See also Medical Law Perspectives, November 2013 Report: Diagnosis and Treatment of Heart Attacks: Liability Issues

 

See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care

 

See also Medical Law Perspectives, November 2012 Report: Liability for Electronic and Other Medical Record Information Disclosure

 

 

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