Company rules are rules promulgated by a business for its employees, patrons and others. They may govern all kinds of behavior. In Virginia, company rules are not relevant. Company rules are not relevant to prove standard of care. That at least has been the view of the Supreme Court. In Pullen v. Nickens, 226 Va. 342, 350 (1983), the Court said that private rules are not proof of what should have been done.
The Court noted that most states that have dealt with that issue have found that a defendant’s private rules are admissible. Therefore Virginia is in the minority as to this issue. See also on this site a blog post dealing with accident investigation and also accident investigation in medical malpractice cases.
Why Virginia’s Approach to Company Rules Is Controversial
There are reasons why the Pullen principle should not remain in use:
- In most instances the plaintiff and/or the defendant are parties to the rules and have admitted they are valid.
- These rules most often reflect industry standards.
Factors In Evaluating Personal Injury Company Rules
When looking at company rules or polices and procedures of a defendant to determine whether or not they may be discoverable there are many factors that need to be looked at:
In medical malpractice cases, the company rules are frequently hospital rules. What you may be looking for are Bylaws, Rules and Regulations, Medical Staff Policies and also Hospital Policies. They may be relevant not only as to the standard to which the hospital is held but also the standard to which its practitioners are held.
Rule 4:1(b)(1) dictates that discovery is to be liberal and broad. Evidence is relevant if it has any tendency to prove an issue in the case. John Crane, Inc. v. Jones, 274 Va. 581, 590 (2007). If the rules are admissible then that clearly makes them discoverable. The fact that they may not be admissible does not mean that they are not discoverable.
The party claiming the privilege has the burden of proving it and further that it has not been waived. Walton v. Mid Atlantic Spine Specialists, 280 Va. 113, 122 (2011). The mere assertion of some privilege does not mean that it has been proved.
Why Company Rules Should Not Be Privileged
If in fact the rules are required by the state then they are not privileged.
If the rules could be discovered through a FOIA request then there can be no privilege and likewise no proprietary protection.
To the extent that any privilege under Virginia Code § 8.01-581.17 is asserted, then it must be kept in mind that these items are limited to certain quality/peer/safety committees. Policy manuals are not covered by that privilege. Hirsch v. CSP Nova, 98 Va. Cir. 286 (2018); Bunting v. Pinnacle, 2018 Va. Cir. LEXIS 3296
Even if there were some applications of Virginia Code § 8.01-581.17, rules or policies and procedures of a healthcare provider are unique. This alone establishes good cause to justify their production.
The idea of protecting private rules under the Pullen decision is out of date. Whether the defendant is a manufacturer or healthcare provider or otherwise, most industries are highly controlled. Rules are established either by government or industry standards.
To the extent that company rules reflect industry standards that are set or required by third parties, they are not private rules but rather are “public rules”.
If they have been given to employees and others then any privilege is waived. Johnson v. Roanoke Mem Hosp 9 Va. Cir 196,205 (1987)
Using Company Rules as Corroboration of Standard of Care
To the extent that rules corroborate what is otherwise set as the standard of care by an expert would make them admissible as evidence.
To the extent that the company rules do not corroborate what the plaintiff says is the standard of care, then the rules may be admissible to show an institutional breach. That is, the rules themselves established that the defendant is in breach of the standard of care.
Company Rules and Evidence of Control, Agency, or Notice
The rules may be evidence of a habit or routine practice under Virginia Code § 8.01-397.1,
To the extent that the defendant’s experts in any way relied upon the company rules, then the company rules may be the basis for cross-examination and/or impeachment.
If the company rules show some control over employees, where that is an issue, then that likewise makes them admissible.
The company rules may establish agency or vicarious liability. To the extent that this is the case, they may be properly admissible.
The company rules may establish notice.
Get Legal Guidance on Company Rules in Personal Injury Cases
If you have questions about how company rules may impact your personal injury claim, speak with an experienced Virginia attorney.
Contact Brien Roche Law today for a free consultation and let us guide you through your legal options.
