Virginia Injury Attorney Blog

Virginia: Medical Malpractice – a Lawyer’s Recoveries

Sun, 19 May 2013 09:30:00 -0500

The May 2013 issue of Trial reported a half-dozen Verdicts & Settlements. Id. at 8-12. One is a medical malpractice lawsuit for negligent laparoscopy that settled for roughly $1,000,000.00 in California. Id. at 8-9.

Another is a special case of product liability involving after-market modifications of a motor vehicle, in which a RV owner, its customizer, an alarm system installer, and an inspector contributed more than $2,000,000.00 in a Michigan settlement with a permanently disabled occupant of the vehicle. Id. at 8. Mr. Waterman handles medical malpractice, product liability, vehicle accident, and other cases of wrongful death and personal injury.

Virginia: Medical Malpractice – a Lawyer’s Magazine

Thu, 16 May 2013 14:36:35 -0500

Trial is the monthly magazine of the American Association for Justice (“AAJ”). Its May 2013 is its annual issue on “Medical Malpractice”.

Five articles are featured: “Dangers of Electronic Medical Systems,” id. at 14-19; “The Pros and Cons of Practice Guidelines,” id. at 20-25; “EMERGENCY ROOM MALPRACTICE,” id. at 26-32; “ALTERNATIVE APPROACHES IN RESPONDING TO MEDICAL ERRORS,” id. at 34-41; and “DAMAGES CAPS AND INVIOLATE RIGHTS”. Id. at 42-49. Another Medical Malpractice insert is “ELEMENTS OF EARLY OFFER PROGRAMS”. Id. at 38-39.

Mr. Waterman has been an AAJ member for decades. His practice includes patient fall, nursing home, and other medical malpractice cases involving wrongful death and permanent catastrophic injury.

Virginia: Vehicle Accident - a Lawyer's Settlement

Thu, 09 May 2013 09:30:00 -0500

This week a lawsuit scheduled for Court–facilitated mediation was settled by Mr. Waterman. It arose out of a 3–car crash on I-64 East near Victoria Boulevard in Newport News, Virginia, involving residents of Hampton, Yorktown, and Newport News.

Defendant offending motorist was cited and found guilty for following too closely and rear-ending Plaintiff’s car. The vehicle collision totaled Plaintiff’s car.

Plaintiff treated over 14 months and incurred over $15,000.00 for her vehicle accident injuries. She visited a dozen healthcare providers in Newport News and Hampton.

THE VIRGINIA STATE BAR REQUIRES ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN'S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.

Virginia: Patient Fall - a Lawyer’s Recovery

Fri, 03 May 2013 11:18:17 -0500

Eason v. Sentara Hospitals [and] Sentara Careplex Hospital, No. 12000470 is an alleged wrongful death or survival case pending in Circuit Court for the City of Hampton, Virginia. On January 19, 2013, Plaintiff obtained a written expert opinion that both Sentara Defendants deviated from the nursing standard of care.

On April 23, 2013, Eason v. Sentara Defendants, Sentara Hospitals’ and Sentara Careplex Hospital, served Motion to Reduce Ad Damnum, trying to reduce Plaintiff’s patient fall suit from $10,350,000.00 to only $2,000,000.00 summarily. On May 2, 2013, Plaintiff served her Memorandum in Opposition, arguing Sentara Defendants’ dilatory Motion is without merit - indeed, conflicts with a plain reading of the applicable statute, plus two Virginia Supreme Court opinions.

Va. Code Ann. §8.01-581.1 controls and simply provides expressly: “In any verdict returned against a healthcare provider in an action for medical malpractice…, the total amount recoverable…shall not exceed the cap.” (emphasis added) Since §8.01-581.1 is in derogation of Virginia common law, hornbook law holds that it must be construed strictly, i.e., narrowly against its beneficiary Defendants, to apply only to “verdict” as stated.

§8.01-581.1 explicitly limits only the “amount recoverable,” not the amount the jury can award. §8.01-581.1 does not “cap” any ad damnum: if the General Assembly wanted to achieve that result in medical malpractice cases such as Eason v. Sentara, then it easily could and should have legislated so expressly.

Va. Code Ann. §8.01-379.1 guarantees Plaintiff the right to plead and argue above the cap, including in wrongful death suits like Eason v. Sentara. §8.01-581.1 does not purport to abrogate §8.01-379.1, and must be harmonized with it.

Circuit Courts have denied motions like that of Sentara Defendants in Eason v. Sentara. See, e.g., Exhibit 1, Marshall v. Moniz, No. CL08-2018, Order at 2 (York Mar. 28, 2011); Wright v. Eli Lilly & Co., 65 Va. Cir. 484, 499-504 (Portsmouth Sep. 21, 2004)(citing Morris v. Commonwealth, 46 Va. Cir 216, 223 (Albemarle Jul. 17, 1998)(Peatross, J.)); Benson v. Lowe, 44 Va. Cir. 85, 86-87 (Norfolk Nov. 25, 1997)(Jacobson, J.); Bennett v. Riverside, 43 Va. Cir. 13, 14 (Newport News Mar. 17, 1997)(Frank, J.); Dell v. French, 38 Va. Cir. 91, 100 (Fairfax Aug 2, 1995)(Roush, J.); Johnson v. Commonwealth, 51 Va. Cir. 311, 318 (Stafford Feb. 9, 2000)(Haley, J.). Correspondingly, Peninsula Circuit Courts have reduced jury verdicts in excess of the cap, including notably in 2 other patient fall trials of Mr. Waterman. See, e.g., Denton v. Chu, No. CL12-94 (Hampton Feb. 2013); Final Judgment Order, Burrell v. Riverside Hosp., Inc., No. CL1101633F-15 (Newport News Jan. 29, 2013)(patient fall); and Amended Judgment, Johnson v. Riverside Hosp., Inc., No. CL00-29638-DP c/w CL01-30571-DP (Newport News Nov. 30, 2005)(patient fall).

“Hence the appropriate procedure is to submit the case to the jury without informing the jury of the limit on recovery. Should the jury return a verdict in excess of the Medical Malpractice Cap, the trial judge will reduce the award to the amount of the Medical Malpractice Cap.” Wright, supra, 65 Va. Cir. at 503 (quoting Dell).

More fundamentally – dispositively in Eason v. Sentara - the Virginia Supreme Court opinion upholding the constitutionality of the medical malpractice cap in 1989 emphasizes that verdict, not ad damnum, should be reduced:

The limitation on medical malpractice recoveries contained in Code
8.01-581.15 does nothing more than establish the outer limits of a remedy
provided by the General Assembly. A remedy is a matter of law, not a matter
of fact. A trial court applies the remedy’s limitation only after the jury has
fulfilled its fact-finding function.

Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 96 (1989)(italics in original)(underlining added) (citations omitted). Moreover, this language of the Virginia Supreme Court in Etheridge was reiterated by it a decade later in Supinger v. Stakes, 255 Va. 198, 205 (1998).

Defendants nonetheless try to cap Plaintiff’s ad damnum in Eason v. Sentara at $2,000,000.00 artificially, toward inappropriately trying to make that the jury’s chopping block. Doubtless Sentara Defendants are sensitive to this year’s record $25,000,000.00+ medical malpractice jury verdict in Denton, supra, in Hampton and to undersigned counsel’s $3,500,000.00 patient fall verdict in Burrell, supra, in Newport News last year; yet those very cases evince verdict, not ad damnum, is to be reduced.

With the ad damnum reduced to only $2,000,000.00, Plaintiff in the Eason v. Sentara wrongful death/survival case will not be able to argue adequate monetary value to her substantial general damages claim for jury consideration, which she avers is an abridgment of her Constitutional right to jury trial and other undue prejudice. Sentara Defendants’ Motion is not well-grounded in fact or in law.

Unbeknownst to patients and the general public, but well-known to Sentara Defendants and its nurses for decades, patient falls are a leading cause of injury in hospitals. Putting up all four bedrails of a patient - as in Eason v. Sentara - is a disfavored patient restraint known to cause and/or aggravate personal injury, particularly when not used in conjunction with a sitter, posey vest or wrist restraints.

THE VIRGINIA STATE BAR REQUIRES ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN'S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.

Virginia: Medical Malpractice - a Lawyer’s Intimidation

Tue, 30 Apr 2013 09:30:00 -0500

Some medical malpractice defense lawyers have resorted to questioning patients’ experts in deposition whether their litigation testimony supposedly violates membership standards of their professional societies. Query: if the subsequent professional discipline of the patient’s expert by the society can result in a lawsuit verdict against the society, in Virginia can such a damages award also be against an instigating defense lawyer, law firm, and defendant client?

In a 45-page opinion entered on March 28, 2013, a Federal Court upheld a $196,000.00 jury damages verdict in favor of a Plaintiff’s medical malpractice expert against Defendants, American Academy of Orthopaedic Surgeons and American Association of Orthopaedic Surgeons (collectively “AAOS”), for engaging in “tortious conduct by portraying [plaintiff’s expert] in a false light”. Graboff v. The Colleran Firm, et al., No. 10-1710, *1 (E.D.Pa. Mar. 28, 2013). Denying AAOS’ Post-Trial Motion for Judgment as a Matter of Law, the Judge observed: “The evidence shows that the intrusion of the AAOS into the marketplace of expert orthopaedic surgeons is substantial and jeopardized Dr. Graboff’s source of income as an expert.” Id. at *45.

Virginia’s tort of civil conspiracy at common law potentially provides a cause of action against medical malpractice case participants who foster subsequent unfounded discipline of Plaintiff’s expert by his professional society. By separate Blog, Mr. Waterman will provide civil conspiracy authority.

Virginia: Nursing Homes - a Lawyer’s Whistle-Blowers

Tue, 23 Apr 2013 09:30:00 -0500

Trial is the monthly magazine of the American Association for Justice (“AAJ”), of which Mr. Waterman has been a member for decades. Trial’s April 2013 issue marquees “False Claims for Unrendered Nursing Home Care” under its Verdicts and Settlements. Id. at 8.

The AAJ article reports how two former nursing home staff members successfully maintained a special case - qui tam lawsuit - against their former employer and facility owner, being awarded $28,110,000.00 by an Illinois jury. Their lawsuit exposed that the nursing home’s “owner was siphoning money received from Medicare and Medicaid and using it for his own purposes instead of patient care,” causing “patients to suffer infections, skin disorders, and deprivation of required medical care,” including “excessive pressure sores,… a scabies epidemic, and…inadequate attention to their personal hygiene, among other abuses”. Id.

Virginia: Medical Malpractice - a Lawyer’s Coverage

Sat, 20 Apr 2013 09:30:00 -0500

On April 18, 2013, the Virginia Supreme Court issued The Doctors Company v. Women’s Healthcare Associates, Inc., No. 120702. That 7-2 decision found the medical malpractice insurer owed coverage for a breach of contract claim arising out of the healthcare provider’s failure to participate in the Virginia Birth-Related Neurological Injury Compensation Act, Va. Code Ann. 38.2-5000, et seq., as represented.

On de novo review, The Doctors Company held that the parents’ breach of contract claim was covered under the medical malpractice policy as “professional services”. It also held that the alleged breach of contract did not arise out of a statutory violation, an exception to coverage.

Virginia: Vehicle Accidents - a Lawyer’s Mag

Wed, 17 Apr 2013 09:30:00 -0500

The Trial Lawyer is the quarterly magazine of The National Trial Lawyers: TOP 100 TRIAL LAWYERS. Its first issue of 2013 features a couple of articles on vehicle accidents.

“CREATING AND DEVELOPING THE LITIGATION PLAN AND STRATEGY In Interstate Truck Litigation Cases” among other things cautions lawyers new to such cases to associate experienced counsel. Id. at 14-17. “ELECTRONIC DEFECTS: The Next Generation of Automotive Product Liability Lawsuits” highlights re such special cases that “the rapid developments in automotive electronics is greatly outpacing regulatory oversight”. Id. at 26-30.

The National Trial Lawyers has named Mr. Waterman one of Virginia’s Top 100 Trial Lawyers. He handles vehicle accident cases, including ones involving product liability.

Virginia: Vehicle Accidents - a Lawyer’s Lawsuit

Thu, 11 Apr 2013 09:30:00 -0500

On March 20, 2013, Mr. Waterman filed Lamont v. Striggles, No. CL1301322V-04 in Circuit Court for the City of Newport News, Virginia. It is a suit for serious personal injuries arising out of a two-car collision on Warwick Boulevard near Curtis Drive the prior month.

According to the Defendant driver’s account in the Police Crash Report, the head-on auto crash occurred when the offending motorist “fell asleep at the wheel [and] drifted into the oncoming lane”. The “fatigued” motorist, who was charged with failing to maintain proper control of his vehicle, totaled the victim’s BMW and his own automobile.

The Plaintiff victim, a Williamsburg resident, already has incurred more than $60,000.00 in past medical expenses, remains incapacitated and is out of work. Although the offending motorist has only minimum liability insurance coverage of $25,000.00 with Alfa Vision Insurance Co. for the vehicle accident, fortunately his victim has underinsured (“UIM”) coverage of $300,000.00 with Nationwide Insurance Co. plus umbrella insurance coverage of $1,000,000.00 with Nationwide.

Virginia: Nursing Homes - a Lawyer’s Workshop

Mon, 08 Apr 2013 09:30:00 -0500

During April 5-6, 2013, Mr. Waterman attended “Reptile in Nursing Home Cases” at Disney World in Orlando, Florida. It was a 2-day legal seminar.

This special medical malpractice program featured Don Keenan and other plaintiff lawyers. It was developed after countless hours in Keenan’s exclusive Florida workshop focused on the important topic.

Reptile seminar agenda included case selection, rules (and more rules), focus groups, depositions, arbitration, and trial (voir dire, opening, experts, defenses, demonstrative exhibits, and closing). Nursing home case scenarios covered wrongful death.

Mr. Waterman currently is handling several nursing home cases. Most involve patient falls.

Virginia: Vehicle Accident - a Lawyer’s Settlement

Fri, 05 Apr 2013 09:30:00 -0500

During April 1-2, 2013, Mr. Waterman resolved a multi-car crash case arising in Portsmouth, Virginia. The “rear-ender” occurred on the Western Freeway near the Town Point Road Exit and involved motorists from Suffolk and Chesapeake and their insurers, USAA and State Farm.

The car crash victim was seen at Sentara Belle Harbour in Suffolk, including by Emergency Physicians of Tidewater and by Suffolk Radiology. Settlement was reached without Mr. Waterman having to file suit, yet was complicated by State Farm.

Mr. Waterman negotiated a settlement with the victim’s UM/UIM insurer, USAA, for coverage of an alleged “phantom” offending motorist; reserving rights to proceed against the identified offending motorist, Cameron Driver, liability insured of State Farm. The State Farm claims adjuster unsuccessfully asserted that settlement payment by USAA alone or, alternatively, State Farm alone settled the entire vehicle collision for both offending drivers.

Virginia: Medical Malpractice - a Lawyer’s Figures

Tue, 02 Apr 2013 09:30:00 -0500

Hospitals and nursing homes decry and lobby against patient claims for medical malpractice. But Virginia Business’ 2013 “Big Book” shows 50 healthcare institution to be “big business” in Virginia - with at least a half-dozen healthcare systems and even stand-alones to have collected more than one billion dollars apiece from their patients back in 2011! Id. at 123-126.

The 900-pound gorilla of hospitals is Inova with combined patient net revenues of $1,650,425,809.00 based on 3 locations: $1,148,883,881.00 from Fairfax in Falls Church; $263,410,117.00 from Fair Oaks in Fairfax; and $238,131,811.00 from Loudoun in Leesburg. Weighing in at $1,072,063,368.00 is Bon Secours Health System based on 3 of its hospitals (not even counting Mary Immaculate in Newport News): $457,096,292.00 from St. Mary’s in Richmond; $310,769,214.00 from Maryview in Portsmouth; and $304,197,862.00 from Memorial in Mechanicsville. Third appears to be Sentara Health System, with patient revenue nets of $646,103,556.00 from Norfolk General in Norfolk, $271,248,011.00 from Virginia Beach in Virginia Beach, and unpublished amounts from its CarePlex in Hampton and its Community Hospital (now Regional Medical Center) in Williamsburg. A close fourth, if not third, is Carilion Health System, which collected patient revenues of $841,691,584.00 from its Medical Center in Roanoke alone.

Other substantial patient revenue stand-alones are: $1,022,764,802.00 for VCU Health System in Richmond, $264,595,293.00 for Chesapeake Regional Medical Center in Chesapeake, $251,457,085.00 for Children’s Hospital of the King’s Daughters (“CHKD”) in Norfolk, and $373,828,112.00 for Riverside Regional Medical Center in Newport News. Of course Riverside Health System derives significant additional patient revenues from the many physician practices and other facilities it controls on the Peninsula, including its upcoming Doctor’s Hospital in Williamsburg near the Kingsmill subdivision.

Mr. Waterman has sued Bon Secours, Sentara, and Riverside for medical malpractice. He is looking toward suit against Chesapeake Regional Medical Center too.

The Gardens at Warwick Forest in Newport News is reported as the nursing home getting the most patient revenues on the Peninsula. At $18,042,013.00 annually in 2011, The Gardens was not far behind top state’s nursing home at $30,704,731.00.

Virginia: Product Liability - a Lawyer's Energy

Sat, 30 Mar 2013 09:30:00 -0500

“DANGEROUS DRINKS” is another feature article in AAJ’s Trial magazine in March, 2013. It exposes wrongful deaths and personal injuries caused by popular “energy drinks”. Id. at 28-34.

“Energy drink warning labels lack the specificity that would allow consumers to make an informed choice whether to purchase the product,” id. at 30; making for failure-to-warn claims, a special case of product liability. “The strongest liability cases are those involving teenagers and young adults who consumed energy drinks with no presence of alcohol or drugs and who suffered a cardiac event or stroke with several hours of consumption,” id. at 32; and those “with undiagnosed [cardiac[ conditions may be partially vulnerable to serious injuries after consumption”. Id. at 31.

Mr. Waterman has been a member of AAJ for over two decades. He regularly handles cases of wrongful death, and has several types pending.

Virginia: Vehicle Accidents - a Lawyer’s Manufacturers

Wed, 27 Mar 2013 09:30:00 -0500

Trial magazine’s March 2013 issue publishes 5 vehicle accident matters. A $2,750,000.00 New Jersey settlement entitled “Port Worker Strikes Dockworker with Forklift” and a $2,000,000.00 Illinois settlement in another forklift case entitled “Company Settles Despite ‘Borrowed Servant’ Defense” are headlined under its “Verdicts and Settlements.” Id. at 12.

Feature article “Failure to Install Side Air Bags” highlights the special case of manufacturer product liability for failing to install such critical occupant protection in all automobiles. Id. at 40-45. “Side impacts are as common as they are deadly.” Id. at 42.

Lack of side air bags are a significant factor leading to wrongful death. “The National Highway Traffic Safety Administration (NHTSA) estimates that side air bags could save up to 1,791 lives each year if every vehicle on the road were equipped with them.” Id. at 41.

“Getting the Facts from Automaker Employees” is another feature article on the special case of product liability. Id. at 46-51. It focuses on how to outmaneuver auto manufacturers attempting to minimize the usefulness of deposition testimony by their corporate product designees, ostensibly their most knowledgeable personnel: “The most effective deposition of the automaker’s engineer is usually designed to gather damaging admissions and establish the foundation for admissibility of key corporate documents at trial, as well as to support your experts’ testimony.” Id. at 48.

In Trial’s “Spotlight,” “Jury Faults Walmart for Tire Inspection” chronicles a $27,500,000.00 Texas verdict apportioning 88% liability against Walmart and 12% against the driver for the wrongful death of a guest passenger. Id. at 52-53. “The plaintiff’s expert determined that Walmart measured the higher points of the tread [in its pricier 15-point oil change inspection], but some parts of the tires actually measured lower than the legal limit.” Id. at 52.

Mr. Waterman initially was trained as a product liability lawyer defending national vehicle and chemical manufacturers. However, for decades since then he has represented victims of vehicle accidents, and currently has multiple wrongful death and personal injury cases pending in Williamsburg, Newport News, Gloucester, and Loudoun County, Virginia.

Virginia: Medical Malpractice - a Lawyer’s Malpractice

Sun, 24 Mar 2013 09:30:00 -0500

AAJ’s March 2013 Trial issue also reports 2 medical malpractice topics. One is under “Verdicts and Settlements,” the other a feature article.

“Oxycodone Overdose” details a Florida jury verdict for $5,330,000.00 for wrongful death. The victim patient had been prescribed hundred of Oxycodone pills before dying in his home. Id. at 10-11.

“Establish Elopement Liability” deals with nursing home responsibility for residents allowed to wander off-premises. More complex than they may seem, such professional negligence cases required experienced lawyers to evaluate facility assessment, intervention, responses, etc. Id. at 36-39.

Mr. Waterman has a wrongful death case no. CL11-1316 pending in Williamsburg, Myron M. Arshan, Executor of the Estate of Sharon L. Britt, Deceased v. Stephen E. Plotnick, M.D., et al. It seeks $10,350,000.00 for fatal overdose of Fentanyl, Methadone and Olanzapine.

He also currently has several nursing home cases locally. Most are patient falls, including at least two for wrongful death.