Failure to Provide Adequate Privilege Log, Waives Privilege

A circuit court ordered Montgomery Regional Hospital, Inc. to produce peer review reports and other similar documents due to its untimely and inadequate privilege log.  In Creasy, Admr. v. Medical Assocs. of Southwest Virginia, Inc., Case No.: CL17-1582, the decedent's estate brought a wrongful death action against the hospital and various providers involved in the decedent's care.  Decedent died from complications following a cardiac catheterization. After decedent's death, the hospital performed a "root cause analysis" or RCA.

In Requests for Production, Plaintiff requested the RCA documents related to the decedent's death.  Counsel for the hospital relied on Virginia Code §§ 8.01-581.16 and 8.01-581.17, as well as the federal Patient Safety and Quality Improvement Act of 2005, to assert the peer review privilege and withheld the documents from Plaintiff. In discovery responses, defense counsel provided a privilege log which stated the subject documents were privileged because they were "prepared for purposes of improvement of patient safety and quality of care."  In addition to the root cause analysis, defense counsel also stated that a hospital peer review report, prepared by an interventional cardiologist who reviewed the case, and handwritten notes were also privileged. This discovery dispute went on for several months.  At the hearing, defense counsel admitted that she had not seen the RCA.

Judge Long ordered the documents to be produced to Plaintiff within two days of the hearing. In his holding, Judge Long ruled that the hospital waived the privilege protections of Virginia Code §§ 8.01-581.16 and 581.17 and the Patient Safety and Quality Improvement Act of 2005 because of its inadequate privilege log. In addition to defense counsel failing to review the subject documents before asserting the privilege, the Court held that the hospital failed to provide any support to its claim of privilege, as well as failing to timely and properly respond to discovery requests.

When dealing with privileged documents, it is crucial that counsel not only verify the documents in question are privileged, but also adequately describe the documents and state the reason(s) why the documents are privileged in a privilege log. As always, this should be done in a timely manner in accordance with the Rules of the Supreme Court of Virginia.