After the landmark Riverside decision, I took the benefit of it and coupled it with the basic medical records statute to try to revolutionize the approach to medical malpractice litigation.  Historically, medical malpractice litigation has been a long, expensive, knock-down, drag out kind of thing where in the course of that litigation while you are embroiled in it, you try to get and hopefully get any incident reports and computer database information.

It seemed to me that that can and should be done upfront.  So what I have done post-Riverside is every time I request records, I specifically request the incident reports, computer databases and other materials that we know are kept outside of the patient chart.

Invariably, despite the Riverside case, the healthcare providers resist and when they do that, I then use that medical records statute to create what has become to known as a Waterman Subpoena and serve that on the facility.  That subpoena is resisted and it goes to an Evidentiary Hearing.  Those Evidentiary Hearings typically are two, three, four hours, sometimes even more than one day, where the facilities bring in their various risk managers, quality control people and sometimes nursing staff trying to resist production of individual documents, but they have not been successful.  In fact, I have uniformly been successful in the six or eight times that I have done it and we have obtained in those cases all the incident reports that are out there, most of the computer database information that is pertinent and some other miscellaneous things like investigative reports and even some committee minutes that have basic patient factual care information in them.

The significance is we are doing this all outside of litigation before there is any litigation.  The only prerequisite is that a suit be filed so as to give the necessary foundation for issuance of the subpoena.  When I am able to get the special documents that are kept outside the patient chart, I have been able in a number of cases to short circuit the litigation totally.  I mean when you catch them with the skeleton in the closet or the smoking gun, they are really not in a position to fight and then therefore, I have been able to drive a number of very favorable settlements without ever litigating beyond the patient Evidentiary Hearing.