were designed to apply to all hospitals in the group. When a specific hospital fails to
implement a policy that was designed for the entire group of hospitals, a jury can more easily understand that the standard of care comes from the corporate owner and the failure to implement the policy by a specific hospital would meet the definition of a violation of the standard of care. After all relevant hospital policies
from both the specific hospital and, where applicable, the corporate owner, have been obtained, depositions should be taken of those individuals who were involved in the development of such policies. The hospital defendant may attempt
to claim that such discovery would be subject to Evidence Code section 1157, which prohibits discovery of the records or proceedings of any organized hospital committee that has “the responsibility of evaluation and improvement of the qual- ity of care rendered in the hospital.” But there is a clear distinction between a “mortality and morbidity committee” that reviews the care of a specific patient incident for the purpose of improving the quality of care rendered in the hospi- tal, and a committee that drafts basic policies of operation for the hospital, before any incident. In any motion to compel the pro-
duction of information, in response to a section 1157 objection, about the compo- sition of the committee or any records of discussions, the fact that the product of such committees are published, discover- able written policies is in sharp contrast to any reports of committees that review care in the hospital. Every time a hospital committee
drafts a new policy or revises an existing policy, the purpose and content of such policy or revision must be communicated to all of the relevant nursing staff, and depending on the policy, to the relevant medical staff also. To effect this commu- nication and teaching, every hospital must have an education manager to per- form such “in-service” education. In smaller hospitals this job may be shared
with another function and in larger hos- pitals there may be multiple individuals who serve this function. After obtaining the relevant hospital
policies, the deposition of the hospital education manager should be taken to determine what was done to communi- cate the purpose and specifics of each relevant policy. Often, the involved hos- pital nurses have never read the relevant hospital policy and/or do not understand the policy. The involved nurse will not want to admit that the policy was violated in the care of the plaintiff, but the per- son responsible for teaching the nurses will either have to say that they never properly educated the nurse and/or that the nurse violated the policy. Either way, the jury will see evidence of negligence beyond the specific case before them. Every hospital has a Director of
Nurses, who is responsible for the actions of all nurses in the hospital, and a charge nurse for each unit of the hospital, who is responsible for the actions of the nurs- es in their unit. In larger hospitals, the charge nurse will have no patient care responsibility and function only as an administrator with responsibility to see that nurses follow written policies. These nurses must obviously be knowledgeable about such policies, but sometimes they are as unfamiliar with the relevant poli- cies as the patient care nurse. The charge nurse is rarely involved
in the patient’s care, and almost never is identifiable from the medical records. The deposition of the Director of Nurses and any relevant charge nurses will also allow the plaintiff ’s care to be placed in a context, and will often expose a larger problem in the hospital that would cause a jury to be concerned about basic safety issues involving all patients.
Physician discovery While information about prior law-
suits and judgments would be of great interest to a jury deciding the actions of a specific physician, such evidence is usual- ly not relevant or admissible. However, any information about a doctor’s back- ground and training is both relevant and admissible in any malpractice case.
All physicians have graduated med-
ical school and taken some residency training. Most have completed a residen- cy and are board-certified in at least one area of specialization. At deposition, defendant physicians can testify about their vast experience with the procedure at issue in the case and there is no way to disprove their assertion. But every physi- cian is required by the Medical Board to take at least 25 hours of continuing med- ical education every year, and to main- tain the documentation for such educa- tion for at least five years. Since much of modern medicine did
not exist when many physicians took their training, many aspects of care that
SM
Rose Nazarian, Esq. Mediation
& Arbitration Services
No Administrative Fees 818.500.7500 FEBRUARY 2012 The Advocate Magazine — 77
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