Whidbey General Hospital is fighting a subpoena from the Island County prosecutor seeking an internal investigation report into allegations that the chief nursing officer assaulted a restrained patient.
The prosecution is simultaneously fighting the chief nursing officer’s subpoena of all the alleged victim’s medical records. A deputy prosecutor likens the nurse’s request to harassment of a rape victim, according to court documents.
Linda Gipson, the chief nursing officer, faces one count of fourth-degree assault in a case that’s become unusually complex for a gross misdemeanor charge.
Island County District Court Judge Bill Hawkins will hear arguments over the subpoenas duces tecum during a hearing set for Monday afternoon.
The prosecutor’s office isn’t the only entity that’s requesting a copy of the internal investigation.
The Whidbey News-Times asked for a copy of the investigation report, but was denied.
In an email to the News-Times, hospital CEO Tom Tomasino claims that the internal investigation into the alleged criminal assault “was conducted in accordance with our quality improvement and medical malpractice prevention program.”
He cited two state codes, RCW 70.41.200 and RCW 42.56.360 (1)(c).
Nancy Krier, assistant attorney general for open government, pointed to a 2013 Supreme Court case, Cornu-Labat v. the Grant County Hospital District, which dealt with a similar issue of disclosure of an internal investigation.
The court concluded that RCW 70.41.200 didn’t apply in that case.
In addition, the Supreme Court remanded the case back to the lower court to establish whether the committee that created the report constituted a “regularly constituted committee” under the specific law.
“That is why the facts are important in considering this exemption and these types of hospital statutes and records,” she said.
In October, Hawkins issued a subpoena to the hospital, at the prosecution’s request, for a copy of the internal investigation. The hospital refused to produce the records and moved to quash the subpoena.
The hospital’s attorneys cited patient-confidentiality concerns, attorney-client privilege, the Health Portability and Accountability Act and the Washington Medical Records Privacy Act.
In a motion to the court, Deputy Prosecutor Jacqueline Lawrence argued that none of the hospital’s basis for the motion apply.
The confidentiality issues don’t apply to criminal cases, Lawrence wrote, arguing that attorney-client privilege doesn’t encompass the materials for several reasons, including that the report likely does not include legal advice.
In addition, she wrote the medical privacy concerns don’t apply because prosecutors were not asking for a patient’s medical records.
On the other hand, Gipson’s attorney wants to subpoena Whidbey General Hospital to obtain all of the alleged victim’s medical records.
Lawrence wrote a motion objecting to the subpoena, claiming the same medical privacy issues the hospital cited. She also argued that past medical records are not material to the charge.
She argued that allowing the defense to see the alleged victim’s medical history would re-victimize her.
“Simply being a victim with mental health problems should not allow the defense to comb through (the alleged victim’s) most intimate of records,” Lawrence wrote.
“(Her) medical history is, in some ways, analogous to a sexual assault victim’s prior sexual history, which is protected by RCW 9A.44.020,” Lawrence said.
“The Legislature long ago recognized the potential for defendants to harass, embarrass and abuse rape victims through the discovery process and by stretching the bounds of the rules of evidence.”
Lawrence argued that Gipson’s subpoena request is an attempt to use the alleged victim’s mental illness to deflect responsibility and “blame the victim because of her illness.”
