In Virginia there have been what you might call a couple of sacred cows in medical malpractice litigation. One had been the incident reports and the so called quality and peer review documents to which we got access through my landmark case of Riverside.
The other sacred cow is so called policies, procedures and protocols and like it sounds, those are the particular documents that each facility creates to guide how the railroad will run. And once a given committee promulgates those policies, procedures and protocols, they are made the official record of the facility and govern how it is to be run.
The facilities have jealously guarded those policies, procedures and protocols. They have in particular tried to hide behind the privilege statute claiming that they are privileged materials. I have totally disagreed and fought this battle for over a decade now. I have never lost it in the lower court, the trial court level, but it has not yet percolated up to the Supreme Court yet as had my other case for the incident reports.
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