State ex rel. United Hosp. Center, Inc. v. Bedell, 23847

Citation199 W.Va. 316,484 S.E.2d 199
Decision Date14 March 1997
Docket NumberNo. 23847,23847
CourtSupreme Court of West Virginia
PartiesSTATE of West Virginia ex rel. UNITED HOSPITAL CENTER, INC., a Corporation, Petitioner, v. Honorable Thomas A. BEDELL, Judge of the Circuit Court of Harrison County, and Mary Mobley, Administratrix of the Estate of Agnes Becker, Respondents.

Syllabus by the Court

1. " 'A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va.Code, 53-1-1.' Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977)." Syl. pt. 2, State ex rel. Kees v. Sanders, 192 W.Va. 602, 453 S.E.2d 436 (1994).

2. "When a discovery order involves the probable invasion of confidential materials that are exempted from discovery under Rule 26(b)(1) and (3) of the West Virginia Rules of Civil Procedure, the exercise of this Court's original jurisdiction is appropriate." Syl. pt. 3, State ex rel. USF & G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).

3. "The burden of establishing the attorney-client privilege or the work product exception, in all their elements, always rests upon the person asserting it." Syl. pt. 4, State ex rel. USF & G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).

4. "When a circuit court's discovery ruling with respect to privileged materials will result in the compelled disclosure of those materials, a hard and more stringent examination will be given on appeal to determine if the circuit court abused its discretion." Syl. pt. 5, State ex rel. USF & G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).

5. "Unless obviously correct or unreviewably discretionary, rulings requiring attorneys to turn over documents that are presumably prepared for their clients' information and future action are presumptively erroneous." Syl. pt. 6, State ex rel. USF & G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).

6. " 'In order to assert an attorney-client privilege, three main elements must be present: (1) both parties must contemplate that the attorney-client relationship does or will exist; (2) the advice must be sought by the client from that attorney in his capacity as a legal advisor; (3) the communication between the attorney and client must be [intended] to be confidential.' Syllabus Point 2, State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979)." Syl. pt. 7, State ex rel. USF & G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).

7. To determine whether a document was prepared in anticipation of litigation and, is therefore, protected from disclosure under the work product doctrine, the primary motivating purpose behind the creation of the document must have been to assist in pending or probable future litigation.

8. "Rule 26(b)(3) of the West Virginia Rules of Civil Procedure makes a distinction between factual and opinion work product with regard to the level of necessity that has to be shown to obtain their discovery." Syl. pt. 7, In re Markle, 174 W.Va. 550, 328 S.E.2d 157 (1984).

9. When a corporation, partnership, association or governmental agency designates an attorney to testify on its behalf at a deposition pursuant to West Virginia Rule of Civil Procedure 30(b)(6), such corporation, partnership, association or governmental agency waives the attorney-client privilege and work product doctrine with regard to matters, set forth in the notice of deposition, about which the attorney was designated to testify.

Herbert G. Underwood, Janis P. White, Steptoe & Johnson, Clarksburg, for Petitioner.

Robert F. Cohen, Jr., Cohen, Abate & Cohen, Fairmont, Marc S. Zweben, Marc S. Zweben, P.C., Washington, D.C, for Respondent, Mary Mobley.

McHUGH, Justice:

Petitioner, United Hospital Center, Inc. (hereinafter "hospital") invokes this Court's original jurisdiction pursuant to W.Va. Const. art. VIII, § 3 and W.Va.Code, 51-1-3 [1923], and seeks a writ of prohibition against the Honorable Thomas A. Bedell, Judge, to prevent the enforcement of two orders. The first order, entered October 31, 1996, ordered the hospital to release to plaintiff Mary Mobley, Administratrix of the Estate of Agnes Becker, an incident report prepared by a nurse after Mrs. Becker fell in the hospital's emergency room. The second order, entered November 1, 1996, ordered the hospital to disclose to plaintiff the investigation report prepared by the hospital's former general counsel and risk manager and further ordered the hospital's current general counsel to testify as to the substance of conversations he had with various hospital personnel.

For the reasons discussed below, the hospital's petition for writ of prohibition is granted as moulded.

I.

On or about November 3, 1994, Agnes Becker, age 93, was taken to the hospital's emergency room after having fallen at home. Mrs. Becker was examined and subsequently ordered discharged when it was determined that she had suffered no serious injuries.

In preparation for discharge, Mrs. Becker was raised to a sitting position at one side of the elevated cart on which she had been reclining. When Debra Lemasters, the nurse attending to Mrs. Becker, turned away from Mrs. Becker and leaned forward to bring a wheelchair closer to the cart, Mrs. Becker fell forward, landing on her right side. Mrs. Becker sustained injuries to her right hip and elbow and remained hospitalized for approximately two months. Mrs. Becker, who had previously lived independently, was ultimately discharged to a continuous care facility where she remained until her death approximately one year later. 1

A. The Incident Report

Within minutes after Mrs. Becker's fall, Nurse Lemasters prepared the incident report which is presently at issue. 2 According to written hospital policy regarding incident reports, "[a]ll accident/incidents that occur on United Hospital Center property shall be documented, so that a proper review may be conducted." Hospital policy defines "incident" as "[a]ny event that occurs during the hospital stay of a patient, visitor or volunteer which is non-routine (i.e. an accident or mistake) or has some potential for physical or mental injury to that patient, his/her family or visitor." 3 Hospital policy further indicates that an incident report is "not a medical document and does not go in the medical record. A completed Incident Report is to be treated confidentially." (emphasis provided).

In addition, written hospital guidelines regarding incident reports provide, in relevant part:

Incident reports are an integral part of managing today's health care system. They assist in determining levels of care that are being provided and they are a resource for claims management.

Hospitals are expanding their role as a community service. In order to maintain a viable community service it is essential that the risk manager learn of serious patient problems at the earliest possible time. Early notification will result in better response, which will improve quality and/or service.

The purpose of incident reporting is not to place blame on individuals. It is designed to enhance the care provided and to assist in providing a safe environment. The responsibility for completing an incident report lies with virtually all people associated with this hospital.

It is important that it be understood that REPORTING an incident does NOT make it a CLAIM. However, a POTENTIAL CLAIM will NOT DISAPPEAR merely because it was not REPORTED.

Be assured that few unusual incidents result in any claimant activity--even fewer result in claims payment. Many injuries occur without fault on the part of any member of the health care team; and instances of potential liability do not always result in injury.

The guidelines require that a completed incident report be forwarded to the department head or supervisor, who then reviews the report and immediately remits it to the risk manager. Furthermore, "[f]or those incidents which are considered by the risk manager as potential claims or serious in nature, special investigations will follow."

In a deposition, Nurse Lemasters testified that she completes an incident report "[a]ny time that there's any kind of an incident, not necessarily an injury, but anything that's out of the ordinary occurs[.]" She further testified that "[a]n incident report is something that I would do if there was an incident, so I can't say if somebody told me to do it because that was just something I would do." Nurse Lemasters stated that she obtained an incident report form from the nurses' station, where such forms are kept "[a]s a matter of course."

According to the hospital, its general counsel and risk manager at that time, Robert Bray, arrived in the emergency room shortly after Mrs. Becker's fall, at which time he spoke with members of Mrs. Becker's family. Also at that time, Nurse Lemasters, upon completing the incident report, gave the report directly to Mr. Bray, at his request.

The hospital refers specifically to the allegations in plaintiff's complaint that Mr. Bray did not tell plaintiff that he was a lawyer and the hospital's general counsel when he spoke with family members. However, the hospital points out that plaintiff conceded, during a deposition, that Mr. Bray had given her his business card on which he was identified as general counsel. The hospital refers also to that portion of plaintiff's complaint in which it is asserted that a family member told Mr. Bray that "the nurse could have prevented the fall by not turning her back and walking away from Mrs. Becker while Mrs. Becker was sitting on the edge of the cart." Plaintiff's complaint further asserts that Mr. Bray told family members that the hospital would pay for any surgery Mrs. Becker might require as the result of her fall.

B. The Investigation Report

Following Mrs. Becker's fall, Mr. Bray completed a "General Counse...

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