In most medical malpractice cases related to treatment in a hospital setting, a fairly standard interrogatory posed by plaintiffs to hospitals is a request for the production of any internal policies and procedures in effect at the time of the alleged malpractice related to the area of practice. Whether the policies and procedures will be found discoverable varies considerably by jurisdiction.
Some courts have held that policies and procedures related to the alleged malpractice are discoverable. For example, in a case involving the alleged sexual assault of a hospital patient in her hospital room, the Court of Appeals of Texas, Fort Worth, in Baylor All Saints Medical Center v. Martin, 340 S.W.3d 529, 534 (Tex.App. Fort Worth, 2011) noted that the Texas rules of evidence allow discovery of hospital policies and procedures regarding the protection of patients from assault.
Some courts have held that peer review privilege protects policies and procedures from discovery. The Circuit Court of Virginia, Fairfax County, in Flinchum v. INOVA Health System, 2012 WL 7874396 (Va.Cir.Ct., 2012) (not designated for publication), reviewed the circuit split in Virginia on the discoverability of hospital internal policies, procedures, and protocols. The court noted that the split involved the interpretation of Virginia’s statutory peer review privilege, but there was no disagreement that internal policies, procedures, and protocols may not be admitted at trial to prove the standard of care.
Some courts go beyond finding that policies, procedures, and protocols are inadmissible and find them not even discoverable. For example, in Melick v. William Beaumont Hosp., 2015 WL 1739980 (Mich.App., April 16, 2015) (not designated for publication), a man who had previously suffered a stroke was admitted to a hospital. The nursing staff at the hospital assigned the man a fall risk assessment score of eight. The following day a hospital employee found the man on the floor. He had apparently fallen out of his bed. A subsequent CT scan revealed an acute subarachnoid hemorrhage, which was attributed to left frontal trauma. About two months later he suffered respiratory failure secondary to possible aspiration pneumonia and a cerebral vascular accident, and died.
The representative of the man’s estates filed a medical malpractice lawsuit. The complaint alleged that the hospital was vicariously liable for the negligence of its nurses who purportedly breached their standard of care by failing to ensure that the bed rails on the man’s bed were in the appropriate position, failing to utilize a bed alarm, failing to request and independently initiate an order for a sitter, and failing to inform the man’s family that they had the option of remaining with the man to act as a sitter.
During discovery, the estate asked the hospital for internal policies and procedures in effect at the time of the man’s fall that related to fall precautions at the hospital, including specifically the use of bedrails, bed alarms, and sitters. The hospital objected to the discovery request. The trial court ordered the hospital to produce the internal policies and procedures.
The Court of Appeals of Michigan reversed the trial court’s order that the hospital produce certain internal hospital policies and procedures. The court reasoned that because the standard practice in the community dictated the standard of care, internal rules and regulations did not determine liability, and, therefore, these materials could not be admitted at trial. Given that the internal rules and regulations did not establish the nurses’ standard of care, the hospital’s internal policies and procedures could not be construed as relevant to a determination of the hospital’s vicarious liability arising from the negligence of its nurses, and this information could not be reasonably calculated to lead to admissible evidence. Specifically, the court noted that the requested information did not establish the standard of care, show whether the nurses’ conduct in question was a breach of that standard of care, demonstrate whether the man suffered an injury, or demonstrate whether the nurses’ breach of the standard of care was the proximate cause of that injury.
By Sarah Kelman, JD, and the experts and editors at Medical Law Perspectives.
For more details about Melick v. William Beaumont Hosp., 2015 WL 1739980 (Mich.App., April 16, 2015) (not designated for publication), see the Scalpel Weekly News, April 27, 2015.
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