Victims of medical malpractice gained an important verdict this month when an anti-patent bill failed to garner any support in the House Civil Law Subcommittee of the Virginia General Assembly. House Bill No. 306 sought to create a pilot program to assess the creation of disclosure programs in health care facilities that were designed to encourage the disclosure of adverse medical outcomes between health care providers and patients.At first glance, many of us would concede that a bill that aims to encourage the disclosure of adverse medical outcomes is worthy. After all, patients deserve to learn the reasons why an adverse medical outcome occurred, and the therapeutic relationship between a health care provider and the patient can sometimes be preserved or even enhanced with frank discussions of what went wrong. It is fair to say that no one objects to legislation that is aimed at increasing the opportunity for frank discussions.
House Bill No. 306
House Bill No. 306 went a step farther than simply encouraging frank discussions, however. The proposed legislation contained a very dangerous provision that would have effectively eviscerated patients’ rights. This provision stated as follows:
“The following shall be privileged and inadmissible in a civil action, administrative action, or arbitration arising from an adverse medical outcome: (i) an offer to participate in a disclosure program or actual participation therein; (ii) a disclosure made as part of a disclosure program; and (iii) an offer of the resolution, including compensation, made during a disclosure program.”
Danger of the Bill
The danger behind this provision, and subsection (ii) in particular, is that any disclosure of facts made by a health care provider in the course of the disclosure program would be inadmissible at trial. Taken literally, that would have meant that if a health care provider reported facts about what happened that caused a patient an injury, those facts would be inadmissible at trial. These facts would be inadmissible even if those facts were contained in the patient’s medical record, even if another witness had knowledge of those facts, or even if the patient’s attorney would have discovered those facts during the normal course of a lawsuit. In effect, if a lawsuit ever ensued following the type of disclosures protected by this legislation, then the patient and the patient’s attorney would be precluded from telling a jury about basic, fundamental facts about the case. The House Civil Law Subcommittee understood the dangers of House Bill No. 306. As a result, no member of the Subcommittee even made a motion to vote on the Bill. The end result was a win for patient rights.