Virginia Injury Attorney Blog

On January 25, 2010, dailypress.com headlined, “Judge’s ruling may mean smaller damages in Gloucester lawsuit,” and subtitled “Decision expected to head to the Supreme Court”. It covered hearing that day in the brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

In August, 2009, a Gloucester jury in Gagnon awarded the permanent brain injury victim $1,250,000.00 against Assistant Principal Travis Burns; $3,250,000.00 against the assailant; $500,000.00 against his encouraging sister; and $1,100,000.00 in pre-judgment interest on all of those principal amounts collectively. Plaintiff unsuccessfully argued that he was entitled to collect all amounts against the Assistant Principal, who enjoys $6,000,000.00 of insurance coverage, versus the impecunious brother and sister student tortfeasors, both of whom have filed for Bankruptcy.

At hearing on January 25th, the Judge noted that Plaintiff’s authority of the Restatement (Third) of Torts: Apportionment of Liability §14 was compelling; but ruled that there was no “joint and several liability” between the Defendants to the brain injury victim. Both litigants in Gagnon intend to appeal to the Virginia Supreme Court, the Assistant Principal about him being liable at all and Plaintiff about joint and several liability.

On January 24, 2011, Virginia Lawyers Weekly headlined “Details scant in settlement of shoulder dystocia case,” and subtitled “987,500 Settlement”. Mr. Waterman and co-counsel resolved that medical malpractice action.

Their $987,500.00 settlement negotiated on September 7, 2010, was for “Brachial plexus injury caused by shoulder-dystocia delivery”. It was believed to be the largest settlement in Virginia for that type of medical malpractice case.

Typically in Virginia, jurors receive the Virginia Model Jury Instructions about what damages they can award victims of wrongful death, vehicle accidents, medical malpractice, defective products, and other personal injury. Those pattern instructions inform jurors that they should consider pain, suffering, inconvenience, disfigurement, medical bills, lost earnings, etc.

Significantly, however, Virginia jury instructions do not cover two other “losses” unavoidably borne by every victim of wrongful death, vehicle accident, medical malpractice, product liability, or other personal injury. One is attorney fees; the other is litigation expenses.

In Virginia and elsewhere, cases of wrongful death, vehicle accidents, medical malpractice, product liability, and other personal injury are handled on a “contingency fee” basis, whereby the attorney is compensated by receiving a percentage of the recovery obtained at trial (or by settlement), if any. That is because victims usually cannot afford to pay an attorney a standard hourly rate for time expended, particularly when the amount, timing, and even the fact of recovery is disputed and uncertain.

Traditionally the contingency fee is one-third of the (gross) recovery in vehicle accident cases. However, in more complex time-consuming expensive risky litigation like medical malpractice and product liability, the contingency fee typically is 40%.

In addition to attorneys fees, the Virginia Code of Professional Responsibility mandates that a victim of wrongful death, vehicle accident, medical malpractice, product liability, and other personal injury must bear his litigation expenses. Usually the most significant expenses are expert fees, court reporter fees, and travel expenses, which generally are not recoverable from the wrongdoer.

Even in a modest vehicle accident case, such litigation expenses easily can amount to several or more thousand dollars. In complex litigation like medical malpractice and product liability and even in some hard-fought wrongful death and vehicle accident cases, such expenses are $25,000.00 - $50,000.00 to upwards of $100,000.00.

Thus after payment of attorneys fees and litigation expenses – not to mention liens for any medical expenses covered by private insurance or government programs – a victim of vehicle accident actually may receive only 60% of the jury’s award, while a victim of medical malpractice or product liability may be lucky to get 50% of the jury’s award. Legislative change is needed so jurors are instructed to consider attorneys fees and litigation expenses in awarding full fair compensation to victims.

Many Virginians qualify for Workers’ Compensation when killed or injured on-the-job by a third-party wrongdoer. But under Virginia law, victims of on-the-job wrongful death, vehicle accidents, product liability, and other personal injury still are entitled – and need – to be compensated fully by the wrongdoer for their lost wages, medical expenses, disability and/or death.

Many, if not most, jurors are unaware that on-the-job victims awarded compensation at trial are liable for reimbursement of all Workers’ Compensation benefits they have received, including all wage, medical, disability and/or death payments. Specifically, employers by law have a lien against any jury awards to be repaid in full in preference and priority to all victims of wrongful death, vehicle accidents, product liability, and other personal injury.

Such a lien exists regardless whether the jury actually included anything in its award for the on-the-job victim’s wages, medicals, disability and/or death. Hence on-the-job victims of wrongful death, vehicle accidents, product liability, and other personal injury will be under-compensated grossly if a jury fails to award for wages, medicals, disability and/or death on the assumption that there is Workers’ Compensation or otherwise.

During January 29-February 1, 2011, Mr. Waterman travels to Montana for the discovery deposition of one of his medical malpractice experts in Marshall v. Moniz, et al., No. CL08-2018 in Circuit Court for the County of York and Town of Poquoson, Virginia. Plaintiff patient in Marshall went in for routine out-patient surgery for incisional hernia repair, but instead ended up hospitalized for 8 months straight, incurred $1,000,000.00 in medical bills, and was disabled permanently; for which he seeks $12,350,000.00 in damages.

The Montana expert deposition in Marshall highlights two significant impediments to a patient maintaining a medical malpractice lawsuit in Virginia and elsewhere. The first is the relative scarcity of quality experts who are willing to testify for patients; the second is the substantial cost of pursuing a claim.

It has been coined that there is a “conspiracy of silence” and a “circling of wagons” by doctors, nurses, and other healthcare providers when it comes to testifying as a patient expert in a medical malpractice case. Most Virginia doctors will not even consider testifying for any patient, regardless the case’s merits; such that victim patients often have to rely upon experts who reside and practice out-of-state.

Second, when serving as experts, doctors typically charge $300.00 - $1,000.00 per hour for all time spent on a medical malpractice case, from record review to conference, from deposition to travel, and everything else. Moreover, experts being located afar incurs significant cost to the Plaintiff patient for travel, accommodations, etc., in addition to valuable attorneys time.

Conversely, Virginia and other healthcare defendants in a medical malpractice case have a comparatively easy time with experts. Doctors, nurses, and other healthcare providers will testify in favor of a colleague much more readily; plus the defendant is backed financially by the much deeper pockets of his insurance company and/or healthcare institution.

On January 11, 2011, The Virginian-Pilot headlined “Deal Would Raise Cap on Malpractice Suits in VA”. It covers a compromise hammered out between the Medical Society of Virginia and the Virginia Trial Lawyers Association to increase the Commonwealth’s statutory limitation of $2,000,000.00 on medical malpractice awards by $50,000.00 per year beginning in 2012 to a maximum of $3,000,000.00 in 2031.

On January 12, 2011, the General Assembly came into session. House Bill 1459 (which may be heard on the house floor by January 21st) and Senate Bill 771 are identical bills incorporating the medical malpractice agreement, which have been filed.

The Virginian-Pilot reported that a Senior Vice President of the Virginia Medical Society said it did not see a pressing need to increase the medical malpractice cap, because only 7, claims in 2008 were greater than $1,500,000.00. But that self-serving angle ignores the caps perennial chilling effect: as defense interests know and intend, the cap tends to operate a “glass ceiling” on many settlements, depressing the dollar amounts of awards and settlements alike versus what they would have been without any cap.

The medical malpractice cap is “pork barrel” legislation for the monied privileged healthcare and insurance industries. The other citizens of Virginia do not get to limit their liability for wrongdoing, and the cap re-victimizes the most severely injured victims of medical malpractice.

Significantly, The Virginian-Pilot also reported in the same article that the Virginia Hospital and Healthcare Association (“VHHA”) still seeks special legislation to “address a 2006 decision by the Virginia Supreme Court that allows factual documents about hospital incidents to be admitted as evidence at trial.” More specifically, VHHA wants the General Assembly legislatively to overrule Mr. Waterman’s landmark medical malpractice case of Riverside v. Johnson, 272 Va. 518 (2006).

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

On January 10, 2011, Virginia Lawyer’s Weekly recognized Mr. Waterman for obtaining the 8th largest jury verdict in the Commonwealth of Virginia during 2010. On August 26, 2010, he received a jury award of $6,100,000.00 (including pre-judgment interest of $1,100,00.00) for a brain injury victim in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

This is the second time Mr. Waterman has been recognized by Virginia Lawyers Weekly for a top Virginia jury verdict. In 2005, his $1,600,000.00 jury award in the landmark medical malpractice case of Riverside Hosp., Inc. v. Johnson in Newport News, which he successfully defended on appeal to the Supreme Court of Virginia in 2006, was the 13th highest across the state and remains the largest ever in Virginia for a patient fall.

Most Virginians have some form of private health insurance or at least qualify for public health coverage in the form of Champus, Medicare and/or Medicaid. But under Virginia law, victims of wrongful death, vehicle accidents, medical malpractice, and other personal injury still are entitled – and need – to be compensated for their medical expenses by the wrongdoer.

Many, if not most, jurors are unaware that victims awarded compensation at trial are liable to reimburse medical expense benefits they have received. Specifically, the government and most private insurers by law have a lien against any jury awards to be repaid in full in preference and priority to all victims of wrongful death, vehicle accidents, medical malpractice, and other personal injury.

That lien exists regardless whether the jury actually factored anything into its award for the victim’s medical expenses. Hence victims of wrongful death, vehicle accidents, medical malpractice, and other personal injury stand to be under-compensated if a jury fails to award anything for medical expenses on the assumption that there is healthcare coverage or otherwise.

In Virginia, victims of medical malpractice are entitled to know the dollar amount and other terms of liability insurance covering a defendant healthcare provider. However, as a general rule such victims and their lawyers are prohibited from disclosing such insurance coverage at trial.

Virginia’s approach to insurance coverage in personal injury cases is not followed by all states. Indeed, for differing policy reasons, other states not only allow jurors to know about the defendant’s insurance coverage, some even allow the insurer to be named as a defendant.

Despite the courtroom shroud of secrecy, it is truly rare in Virginia for a medical malpractice defendant not to have sufficient coverage. The overwhelming majority of Virginia doctors, nurses, and other individual healthcare providers either have their own insurance policies or are covered by the entity for which they work.

Insurance polices typically are in the full amount of the so-called medical malpractice “cap,” which by Virginia law is the most money for which a negligent healthcare can be held liable, regardless how much actually is awarded by the jury as fair compensation. Currently, Virginia’s “cap” for medical malpractice liability is $2,000,000.00, though that inequitable limit is expected to be increased later in 2011.

Happy New Year, Virginia! Welcome 2011!

Mr. Waterman celebrated with family and old friends in Winchester, Virginia. But he returns to Williamsburg on Sunday the 2nd and to the office on Monday the 3rd.

The year in general and January in particular will be an active one for his medical malpractice docket. There will be discovery depositions aplenty, including in California or Montana.