Using Rule 30.02(6) to Breathe Life into a Hospital Policy for Standard of Care
posted on July 25th, 2009 in Standard of Care, Depositions, Policies & Guidelines by clintTruth is found in documents. The challenge is not only to identify the documents necessary to uncover the truth, but also to use them effectively. Crucial documents in any malpractice action are internal hospital policies. These policies often tell you what should have happened rather than what did happen. Hospital staff are supposed to follow the policies. Suppose you discover a hospital policy that governs how care should have delivered to your client. You can prove that the defendant physician or hospital staff violated it. However, the defendant physician and/or hospital staff testifies that the policy did not apply to them; that the policy was not in effect under the circumstances; that the policy is discretionary; and that the policy does not represent the standard of care. Prior to trial, the defendant moves in limine to exclude any reference to the hospital policy. The defendant contends that the policy is not the standard of care, and furthermore, that you can’t prove the practical purpose of the policy. The defendant cites Ward v. Glover, 206 S.W.3d 17 (Tenn.Ct.App.2006) (finding that hospital policy alone is not the standard of care) in support of its motion. How do you successfully defeat this motion?
The best defense is a good offense. You need to go on the attack early during discovery. Require the hospital to speak about its policy, e.g., its purpose, its effective date, and its relevance to your client’s care. The question here is whom do you depose to prove all of this? Institutional information must be obtained from natural persons who can speak for the corporation. You may not know the identity of the appropriate witness within the hospital. To this end, Rule 30.02(6) provides that an organization can be required to designate and prepare persons to speak on its behalf regarding “matters” specified in the deposition notice.
Once you discover the policy, draft a Rule 30.02(6) notice of deposition for the hospital as a corporate entity. The notice needs to specify the following:
The corporation (hospital) is requested to choose one or more of its proper employees, officers, agents, or other persons duly authorized by law to testify on its behalf. This examination will be subject to continuance from time to time and place to place until completed…. The corporation (hospital) will be examined on the following matters:
1. The purpose and origin of the policy (at issue) and its effective dates;
2. The process of Joint Commission accreditation;
3. What the hospital does to prepare for Joint Commission surveys;
4. The frequency of surveys;
5. The consequences for the hospital if the Joint Commission pulled its accreditation; and
6. How the hospital confirms that its policies conform to Joint Commission requirements with regard to the care (at issue).
According to Ward v. Glover, the policy is probative of standard of care if your expert will affirm it. Make the hospital representative confirm that the policy is a product of the Joint Commission. Hospitals have to follow Joint Commission criteria, or else they cannot bill patients. The only way to prove this fact is through a hospital representative, usually a policy wonk, who has some responsibility for Joint Commission compliance. This breathes life into the hospital policy.