Virginia Injury Attorney Blog

Marshall v. Moniz, No. CL08-2018 in York Circuit Court is a medical malpractice action. Defendants have moved to transfer venue to Williamsburg, Virginia.

Va. Code Ann. §8.01-261 provide “Category A or preferred venue”. There is no preferred venue in the Marshall medical malpractice lawsuit .

Va. Code Ann. §8.01-262(3&4) provide “Category B permissible venue,” wherein “the defendant regularly conducts substantial business activity” and/or “the cause of action, or any part thereof, arose”. York County is permissible venue under both of those subsections in the Marshall medical malpractice suit.

“While plaintiff’s choice of forum is not entitled to absolute deference, it ‘should not be lightly defeated’.” Champigny v. Bagly, 55 Va. Cir 381, 382 (Norfolk Jul. 2, 2001)(citations omitted). “A rebuttable ‘presumption of correctness attaches to a plaintiff’s choice of forum’.” Kollman v. Jordan, 60 Va. Cir. 293, 294 (Chesterfield Oct. 29, 2002).

“Plaintiff does not need to explain his reasons for placing venue in any particular forum that §8.01-262 allows.” Id. “According to the plain language of the statute [§8.01-265], Defendant has the burden to show good cause for a transfer.” Id.

Continue reading "Virginia: Medical Malpractice Va. Code Ann. §8.01-265 – a Lawyer’s Venue" »

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Posted In: Attorneys Forum , Medical Malpractice , Nursing Homes

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Marshall v. Moniz is a medical malpractice lawsuit pending in Circuit Court for York County, Virginia. Defendants have filed a Demurrer to strike Plaintiff’s “catch-all” allegation of negligence: “Such other tortious acts and omissions as may be investigated, discovered and proved”.

Yet, it is hornbook law that Virginia is a “notice” pleading state. “Every pleading shall state facts on which the party relied in numbered paragraphs, and it shall be sufficient if it clearly informs the opposite party of the true nature of the claim or defense.” Va. Sup. Ct. Rule 1:4(d)(emphasis added).

Conversely, Virginia pleading does not require plaintiffs to itemize details of negligence. “An allegation of negligence. . . is sufficient without specifying the particulars of the negligence.” Va. Sup. Ct. Rule 3:18(b)(emphasis added).

A Demurrer is used to make “the contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted.” Va. Code Ann. §8.01-273(A). “[I]t is unnecessary for the pleader to descend into statements giving the details of the proof in order to withstand demurrer” if the complaint informs the defendant of the nature and character of the claim. Catercorp, Inc. v. Cathering Concepts, Inc., 246 Va. 22, 24 (1993).

Thus, in Ragsdale v. Jones, 202 Va. 278, 284 (1960), the Virginia Supreme Court upheld the admission of intoxication evidence, even through negligence in general and not intoxication in particular was pleaded. Likewise, in Moore v. Jefferson Hosp., Inc., 208 Va. 438, 439 (1967)(reversing a supposed failure to state), the Virginia Supreme Court found sufficient plaintiff’s pleading of negligence that defendant “proximately caused injury to the plaintiff, both mental and physical”. Likewise, Moore v. Payless Supermarket, Inc., 18 Va. Cir. 197, 200 ( Wise Sep. 15, 1989) found the “general allegation of negligence is sufficient”. Similarly, Cunningham v. Roanoke Reg. Airport Comm’n, 70 Va. Cir. 273, 276 ( Roanoke Mar. 8, 2006) held “pleadings are not required to assert anything more than a general allegation of negligence”.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Pleading" »

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On February 4, 2010, Defendant Sentara Hospitals filed Emergency Petition for Immediate Relief in the medical malpractice case of Mahone v. Sentara, No. CL09-560 in Circuit Court for the City of Suffolk, Virginia. Sentara was represented by its attorney of record, Ted G. Yoakam, Esq. of Virginia Beach, Virginia, and its Risk Manager, Ms. Amanda Goodwin, as its corporate designee.

Sentara’s Emergency Petition accused that the related blog post of February 2, 2010, was “inappropriate conduct”. It prayed in the Mahone v. Sentara wrongful death suit: (a) That plaintiff’s counsel, Avery T. Waterman, Jr., be ordered to immediately remove the blog posted by plaintiff’s counsel on February 2, 2010, in its entirety; (b) That plaintiff prove to this Court, and Sentara, that the blog has been removed and that a diligent search to remove all “cached” versions of the entry that could be found on the internet were removed; (c) That the Court issue an Order on plaintiff’s counsel to take no further actions in regard to this case until such time as a full formal hearing can be had before the Court to determine if plaintiff’s counsel can continue representing the Estate of Felicia T. Madison in this matter; and (d) That Plaintiff’s counsel be ordered to secure Incident Report # 20119, and all copies thereof, and return them to the Court pending a ruling from the Court as to these earlier requested matters given his public disgorgement of confidential information.

Plaintiff filed a Memorandum in Opposition in the Mahone v. Sentara medical malpractice proceedings. Mr. Waterman advances multiple grounds justifying the blog posting, including particularly without limitation that: (1) the underlying Sentara Incident Report # 20119 was not privileged in fact; (2) the “substantial need” exception applied to any claimed privilege; (3) any claimed privilege without exception was waived by Mr. Yoakam’s voluntary production; (4) production was in open Court without any protective order; (5) Plaintiff would not have agreed to any restriction on production; and (6) ex post facto censure violates and chills Constitutional rights of free speech and Court access.

The presiding Judge in the Mahone v. Sentara wrongful death action was “disturbed” by Sentara’s Emergency Petition; found that Williamsburg/Newport News attorney Avery T. “Sandy” Waterman, Jr., Esq. “acted fully professionally in turning the document [Sentara Incident Report # 20119] over” and, moreover, was “free to publish whatever he wants”; and denied Sentara’s Emergency Petition and all relief. The Judge also denied the repeated oral Motion of Ted G. Yoakam, Esq. to prohibit further disclosure on this topic.

Ironically, Ted G. Yoakam, Esq., as plaintiff’s counsel has made numerous public disclosures for almost a year about his pending multi-party “coal ash dump” lawsuits filed in Circuit Court for the City of Chesapeake, Virginia, No. CL09000710-00 Fentress Family Trust v. Virginia Electric and Power Company and No. CL09001914-00 Darryl Sears v. Virginia Electric & Power Co. Indeed, Mr. Yoakam’s own pending “coal ash dump” litigation disclosures were made in City Council meetings, The Virginian-Pilot articles, and even “60 Minutes” television broadcasts.

Continue reading "Virginia Medical Malpractice Incident Report – a Lawyer’s Petition" »

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The medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in York Circuit Court, initially was filed in Williamsburg/James City County and non-suited after the refilling in York County, Virginia. Defendants have filed a Special Plea and Demurrer for dismissal with prejudice based on that litigation history.

The Supreme Court of Virginia already has countenanced the exact procedure postural of the Marshall medical malpractice suit. Plaintiffs are entitled to file one action, file a second action in another jurisdiction, non-suit the first action, and proceed with the second action in the different jurisdiction. Moore v. Gills¸ 239 Va. 239 (1990). Cf., Smith v. Ellis, 28 Va. Cir. 180 (Richmond May 21, 1992).

“An ‘action’ and a ‘cause of action’ are quite different. ‘Action’ is defined [as ‘all civil proceedings whether at law, in equity, or statutory in nature’]. We defined ‘cause of action’ . . . as ‘a set of operative facts which under substantive law, may give rise to a right of action’.” Trout v. Commonwealth Transp. Comm’r of Virginia, 241 Va. 69, 73 (1991).

“Nonsuit remains. . . distinctly a weapon in the arsenal of a plaintiff.” Id. “The effect of a nonsuit is simply to put an end to the present action, but is no bar to a subsequent action for the same cause.” Gemmell, Inc. v. Svea Fire and Life Ins. Co., 166 Va. 95, 97 (1936). Cf., Virginia Concrete Co. v. Bd. of Sup’rs, 197 Va. 821, 826 (1956). “[T]he only effect of a non-suit is to put an end to the pending litigation without prejudice to either party.” Tysons Toyota, Inc. v. Globe Life Ins. Co., 1994 U.S. App. LEXIS 36692, * 19 (4th Cir. 1994); Winchester Homes, Inc. v. Osmose Wood Preserving, Inc., 37 F.3d 1053, 1058 (4th Cir. 1994); Monroe v. City of Charlottesville; 2006 U.S. Dist. LEXIS 20027, *5 (W.D. Va. 2006); Cook v. Wayland, 64 Va. Cir. 386, 387 (Waynesboro Apr. 26, 2004); Odeneal v. Thompson, 63 Va. Cir. 71, 73 ( Fairfax Aug. 6, 2003); Green v. Barnes, 54 Va. Cir. 348, 350 (Portsmouth Jan 4. 2001).

Thus in the medical malpractice case of Marshall, Plaintiff’s non-suit of his first action was not a dismissal with prejudice of his underlying cause of action. It simply put an end to that first action without prejudice to Plaintiff pursuing his subsequent action on the same cause of action.

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Avoiding adverse ruling at hearing on February 2, 2010, Sentara Obici Hospitals capitulated after oral argument and produced so-called “incident report” to Plaintiff that it had claimed was privileged in a medical malpractice action. The case is Mahone v. Sentara Hospitals, No. CL09-560 in Circuit Court for the City of Suffolk, Virginia, which alleges wrongful death of a patient who bled to death during her overnight stay at Sentara Louise Obici Memorial Hospital.

Sentara’s attorney of record, Ted G. Yoakam, Esq. of Virginia Beach, Virginia, at hearing characterized Incident Report # 20119 as a blood bank protocol document that was irrelevant to the medical malpractice. But on its face, Sentara’s Incident Report #20119 actually records material factual patient care information that the Virginia Supreme Court opined was discoverable and admissible in its landmark decision, Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), litigated by Plaintiff’s counsel, Avery T. “Sandy” Waterman, Jr., Esq. of Williamsburg and Newport News, Virginia.

Sentara Incident Report # 20119 proves that the exsanguinating patient in Mahone v. Sentara never was transfused the unit of blood she was ordered hours earlier by her doctor due to Sentara nursing staff’s failure to restart an IV site, contributing to patient demise. Among other things, Sentara Incident Report # 20119 also documents the dying patient’s diagnosis (hemolytic anemia, thrombocytopenia) in this ostensibly mysterious case of wrongful death, plus identifies three Sentara employees with pertinent knowledge.

Like most if not all secreted incident reports, Sentara Incident Report # 20119 contains relevant factual patient care information missing from and at variance with Nursing Notes of the limited so-called “patient chart” to which hospitals seek to limit patient access for review. Patient charts are sanitized healthcare industry-wide by the systematic institutional laundering of key harmful patient care facts into incident reports that are segregated from the patient chart (often in computer databases).

Sentara Incident Report #20119 is particularly significant in the medical malpractice lawsuit of Mahone v. Sentara because suspiciously there are no contemporaneous Nursing Notes from 11:05 p.m. through and beyond the patient’s death at 5:38 a.m.. Instead, post-death, from 5:40 a.m. to 9:32 a.m., a Sentara L.P.N. created fifteen (15) Notes and one (1) Addendum of purportedly what happened from 12:15 a.m. to 4:10 a.m.

Continue reading "Virginia: Medical Malpractice Incident Report – a Lawyer’s Production" »

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This week attorney Avery T. “Sandy” Waterman, Jr., Esq. of Williamsburg/Newport News, Virginia, settled another out-of-state vehicle accident case. He negotiated the personal injury claim of a Peninsula resident involved in a Maryland collision. It was the companion claim of a mother whose daughter was victim of the same crash and whose own case was settled last year by Mr. Waterman too.

Modern technology streamlines client involvement and inconvenience, facilitating favorable resolutions of personal injuries occurring out-of-state. Occasionally Mr. Waterman retains co-counsel in the accident locality for his clients when necessary.

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On January 14, 2010, the brain injury case of Gagnon v. Burns was reconsidered in Circuit Court for Gloucester County, Virginia. Sovereign immunity still was denied the Defendant Assistant Principal.

The Judge reaffirmed his findings that the testimony of Shannon Diaz and other witnesses of Plaintiffs was more persuasive than the testimony of all Defendants; that the act of notifying school security of the reported impending physical attack of Greg Gagnon or otherwise investigating the report of Shannon Diaz omitted by Assistant Principal Burns was a ministerial act; and that the Plaintiffs have made out a sufficient case that Defendant Burns’ act constituted negligence in the non-performance of that ministerial act. The Judge also reaffirmed the admission into evidence of the deposition of a key independent eye witness, Shannon Diaz.

The brain injury case was scheduled for trial by jury on all issues for the week of August 16-20, 2010, at Gloucester Courthouse. Meanwhile the parties resume discovery.

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On December 16, 2009, Defendant in the brain injury case of Gagnon v. Burns, No. CL08-572 in Gloucester, Virginia, lost the issue of sovereign immunity on its Plea in Bar. The trial judge ruled his findings of “ministerial act” and “simple negligence” were preemptive, not subject to relitgation before a jury; so Defendant has set reconsideration for hearing on January 14, 2010.

In Stanardsville Vol. Fire Co. v. Berry, 229 Va. 578, 587(1985), the Virginia Supreme Court emphasized than an evidentiary hearing on Plea could not be aborted mid-stream and that its finding is “binding and conclusive” on the issue submitted. “In the case of an issue on a plea in equity, not only does either party have the right to a jury trial, but the jury may not be discharged before verdict and its verdict, when returned, is as binding and conclusive upon the factual issue submitted to it as is a jury verdict in an action at law.’ Although Stanardsville focuses on a jury sitting as trier of fact on a Plea, where as in the Gagnon brain injury case the parties elect to have the judge sit as the trier of fact, the judge’s verdict and findings likewise are equally mandated, binding and conclusive.

Cooper Indus., Inc. v. Melendez, 260 Va. 578, 594 (2000) reaffirmed that a “plea in bar is a defensive pleading that reduces the litigation to a single issue,” the findings on which are preemptive for the litigation. In Cooper, defendants interposed a Plea in Bar on statute of repose, the trial court tried the same ore tenus and found plaintiff was not time-barred, id. at 581; which finding was not subject to relitigation before the jury subsequently. Id. at 594-595. “When the trial court hears the evidence ore tenus, its findings are entitled to the weight accorded a jury verdict . . . .” Id. at 595.

“Pleas in bar are also designated peremptory pleas ….”M.J. Pleading §45 at 364 (emphasis added). “A plea in bar is one to the substantial merits of the case….” Id. at 363.

“A plea of sovereign immunity presents distinct issues of fact that, if proved, create a bar to a parties’ alleged right of recovery.” Gambrell v. City of Norfolk, 267 Va. 353, 357 (2004). Under the fourth prong of Virginia’s test for sovereign immunity, the trier is required to make findings whether the Defendant’s act in question was one of “gross negligence” or “simple negligence” and was “ministerial” or involved “judgment and discretion,” which findings were the focus of the Gagnon brain injury case.

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In the Virginia brain injury case of Gagnon v. Burns, No. CL08-572 in Gloucester Circuit Court, the defendant assistant principal alternatively claims sovereign immunity by statute, Va. Code Ann. §8.01-220.1:2(A). Defendant argues that “teachers” in that statute actually means “principals” and “assistant principals” too.

It is hornbook law that statutes in general in derogation of the common law are to be construed narrowly. Further, it also is hornbook law that immunities in particular are disfavored and must be construed narrowly. §8.01-220.1:2(A) is no exception to those tandem rules of construction.

No jurisprudence construes §8.01-220.1:2(A). Tazewell County School Bd. v. Brown, 267 Va. 150 (2004), cited by the brain injury defendant, actually involved Va. Code Ann. §22.1-308, not §8.01-220.1:2(A). His reliance on 16 M.J. Schools §18 at 365 to extend “teachers” to “principals” likewise is misplaced: because Mitchie’s cites Tazewell County as its only Virginia jurisprudence on the definitional point, it necessarily falls with Tazewell County.

Tazewell County does not define “teachers” as including “principals” for all purposes. Tazewell County delineated that under the State Grievance Procedure “teacher” meant only classroom instructors and other non-supervisory personnel (non-principals) under Part II, while “teacher” expressly was broadened to include principals only under Part III. Id. at 159 and 162. Thus, since §8.01-220.1:2(A) does not expressly define “teachers” broadly to cover supervisory personnel like principals, §8.01-222.1:2(A) is analogous to Part II versus Part III of §22.1;308, i.e., covers classroom instructors versus principals too.

Further, other statutes clearly distinguish between “teachers,” on the one hand, and “assistant principals” or “principals,” on the other hand. For example, Va. Code Ann. §22.1-293 applies only to principals and assistant principals, while Va. Code Ann. §22.1-295 is limited to teachers.

Continue reading "Virginia: Statutory Sovereign Immunity – a Lawyer’s Analysis" »

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In the brain injury case of Gagnon v. Burns, No. CL08-572 in Gloucester, Virginia, plaintiffs introduced as evidence at trail on sovereign immunity the de bene esse deposition of a key witness taken in the initial proceeding that was non-suited. Defendant Burns objected, referring generally to Va. Sup. Ct. Rule 7; but the Virginia Supreme Court has ruled on point in favor of Plaintiffs.

“[P]rior testimony is admissible if the court is satisfied: (1) that the party against whom the evidence is offered, or his privy, was a part to the former trial; (2) that the issue is substantially the same in the two cases; (3) that the witness who proposes to testify to the former evidence is able to state it with satisfactory correctness; and (4) that a sufficient reason is shown why the original witness is not produced.” Gray v. Graham, 231 Va. 1, 5 (1986). The salutary rule of Gray is followed by its progeny. E.g., Morgan v. Commonwealth, 50 Va. App. 369, 376 (2007); Jones v. Commonwealth, 22 Va. App. 46, 51 (1996); and Commonwealth Transp. Comm’r v. Wee Folks Nursery, Inc., 371 Va. Cir. 463, 464 (1996).”

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In Gagnon v. Burns, No. 049352 in Gloucester Circuit Court, the brain injury victim alleges gross negligence as an exception to the sovereign immunity claimed by the defendant Assistant Principal. Plaintiffs allege that his failure to exercise any prudence, diligence or care for the safety of the student constitutes gross negligence as a matter of law.

“Gross negligence” is “that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of [another].” Koffman v. Garnett, 265 Va. 12, 15 (2003). “A claim of gross negligence, which involves the ‘absence of slight diligence, or the want of even scant care,’ will not lie if the defendant exercised some degree of care with regard to the plaintiff. Colby v. Boyden, 241 Va. 125, 133, 400 S.E. 2d 184, 189 (1991).” Whitley v. Commonwealth, 260 Va. 482, 490 (2000). Jennings v. Hart, 602 F. Supp. 2d 754, 758 n.6 (W.D. Va. 2009)(Virginia law).

Thus, the Court in Colby held there was no gross negligence where the trial court found defendant “exercised ‘some degree’ of care for the safety of others.” 241 Va. at 133 (emphasis added). Likewise in Whitley there was no gross negligence where the trial court’s “findings show that defendants exercised at least some degree of care” toward the victim. 260 Va. at 490.

Conversely in Jennings, however, the Court ruled defendants were not entitled to sovereign immunity for “any alleged acts of negligence [gross or simple]” based on defendants having showed no degree of care for the victim. 602 F. Supp. 2d at 759 (emphasis added). “Holding otherwise would imply that [defendants] have complete discretion to ignore… and disregard….” Id. (denying sovereign immunity on Rule 12(b)(6) motion).

Moreover, the case cited by Gloucester Circuit Court at hearing on December 16, 2009, B.M.H. v. The School Board of the City of Chesapeake, Virginia, 833 F. Supp. 560 (E.D. Va. 1993)(Virginia law), supports Plaintiffs’ position too. In B.M.H., school teachers “failed to take action [about a threat…] even though they had stated an intention to do so”; and this allegation alone sufficed to support the claim of gross negligence. Id. at 562, 574.

POST 12/30 Attorneys Forum, Brain Injuries

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In the brain injury case of Gagnon v. Burns, No. CL07-557-00 in Gloucester, Virginia, plaintiffs argue that defendant’s conduct in destroying evidence and approaching witnesses should be considered some evidence of gross negligence. The Virginia Supreme Court has declared that “a party’s conduct, ‘so far as it indicates his own belief in the weakness of his cause,’ is admissible as an admission against interest.” Gray v. Graham, 231 Va. 1, 9-10 (1986)(avoidance of being photographed). Such “acts or conduct of a party may be admitted into evidence, because they show a ‘consciousness of guilt’ and thus constitute, in effect, an admission by conduct. Charles E. Friend, The Law of Evidence in Virginia, §18-49(9)(1)(6th ed. 2003).” Commonwealth v. Wallace, 70 Va. Cir. 341, 343 (Portsmouth Mar. 29, 2006)(subsequent imposing statements to a prospective witness).

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