Virginia Injury Attorney Blog

In the medical malpractice lawsuit of Carla J. Jones v. Joelle M. Perez and Chesapeake Hosp. Auth., 81 Va. Cir 52 (Chesapeake Jul. 29, Oct. 26, and Nov. 22, 2010), the judge granted Plaintiff post-filing pre-service discovery pursuant to Va. Sup. Ct. Rule 4:5(a). Plaintiff was permitted to depose the most knowledgeable persons (“MKPs”) of Defendant, Chesapeake Hospital Authority, which had skirted deposition of its MKP as previously ordered in the companion proceeding, In re Carla J. Jones, by failing to tender its true MKP. Id. at 52-56.

Further, Jones v. Perez granted leave for, and compelled post-filing pre-service of Requests for Production pursuant to Va. Sup. Ct. Rule 4:9 over Defendants’ objection. The Court considered the corporate Defendant’s withholding of its MKP in the prior medical malpractice miscellaneous proceeding as “extraordinary circumstances”. Id. at 59-60 and 62-63.

Significantly, Jones v. Perez held that the “CT scan protocols” requested by Plaintiff were not privileged under Va. Code Ann. §8.01-581.17. It observed that “the overall weight and policy in the Commonwealth dictates the discovery of such protocols” in medical malpractice cases. Id. at 56-59 and 63-66.

The judge in Jones v. Perez issued a letter opinion dated November 22, 2010. Order was entered in the medical malpractice action on January 25, 2011; with Jason R. Davis, Esq. of Kaufman and Canoles in Norfolk, Virginia, representing Defendants.

At 9:00 p.m. tonight, June 27, 2011, HBO premiers in Virginia the critically-acclaimed film, “Hot Coffee,” as part of its Summer Documentary Series. It exposes the truth behind the $2,900,000.00 personal injury award against McDonald’s that insurance and defense interests have spin-doctored for years to massage the public psyche against victims fighting for justice in Court.

“Hot Coffee” is an official selection at the 2011 Sundance, Silverdocs, HotDocs, Full Frame, Nantucket, Provincetown, Los Angeles, Seattle, Atlanta, Boston, Little Rock, and Gasparilla International Firm Festivals. Click http://hotcoffeethemovie.com/ for more information about the personal injury expose of big business.

“Stunning debut,” proclaims Washington Post! “Sends audiences out of the theatre thinking in a brand new way.”

In the medical malpractice miscellaneous proceeding, In re Carla J. Jones, Nos. CM10-911 and CM10-710 of Circuit Court for Chesapeake, Virginia, petitioner sought pre-suit discovery pursuant to Va. Sup. Ct. Rule 4:2(a)(3). The judge granted pre-litigation depositions of the individual healthcare provider who allegedly was responsible for the conduct in question and of the most knowledgeable person (“MKP”) of Chesapeake Regional Hospital.

Jones found that perpetuating the depositions would “promote judicial efficiency” and might “prevent a delay or a failure of justice”. It also found that the medical malpractice expert certification requirements of Va. Code Ann. §8.01-20.1 could not “reasonably be met without additional information”.

The judge in Jones issued a letter opinion dated July 29, 2010. He also entered a corresponding Order in the medical malpractice proceeding on August 9, 2010.

Mr. Waterman was selected for inclusion on the 2011 list of Virginia Super Lawyers. The selection process includes peer nominations, a “blue ribbon” panel review, and independent research of candidates.

Only 5% of Virginia attorneys are named each year. Mr. Waterman also was chosen for 2009 and 2010.

In Chalifoux v. Radiology Assocs. of Richmond, Inc., No. 100052 (Apr. 21, 2011), the Virginia Supreme Court applied the “continuing treatment rule” in a medical malpractice case. It reversed the trial court finding upon evidentiary plea hearing that Defendant’s serial comparative diagnostic imagings of Plaintiff’s brain were “single, isolated acts,” were episodic care” versus a “care continuum”. Id. at 5,16.

The Virginia Supreme Court looked to Arkansas, Connecticut and especially Missouri precedent in applying the rule to radiologists in Chalifoux. Id. at 12-15. On the facts of this medical malpractice action, it found the requisite “continuous and substantially uninterrupted course of treatment;” and remanded. Id. at 16.

In Volpe v. City of Lexington, No. 092583 (Apr. 21, 2011), the Virginia Supreme Court delineated the duty to warn of a governmental entity and its alleged gross, willful and wanton negligence for a case of wrongful death in Rockbridge County, Virginia. It reversed a court judgment finding no duty to an invitee and striking gross negligence; affirmed there was no willful and wanton negligence; and remanded for retrial. Id. at 15.

Writing for the Virginia Supreme Court in Volpe, Justice Mims observed that a landowner’s duty of ordinary care to an invitee included warning of “any hidden dangers,” id. at 8; relied upon West Virginia and Missouri precedent, id. at 9-10’; and held that it was for the jury to decide whether the danger was hidden versus open and obvious. Id. at 11. Further, because the municipality had “knowledge of these dangers,” but “did not take any safety precautions for its invitee” prior to his wrongful death; there was “credible evidence to support a jury finding of gross negligence,” though not willful and wanton negligence. Id. at 12-15.

In Farmers Ins. Exch. v. Enterprise Leasing Co., No. 100082 (Apr. 21, 2011), the Virginia Supreme Court held that a self-insured rental car enterprise that paid damages caused by its renter contractually was entitled to indemnification where supplemental liability protection was declined. Id. at 5-12. The renter was at fault for a car accident in Fairfax County, Virginia; but refused to reimburse Enterprise Leasing Company for it. Id. at 3.

Farmers also held that the renter’s own car insurer was liable to reimburse Enterprise for what it paid on the car accident due to its insured’s negligence. Although his insurance policy recited that “other insurance” was primary, “self-insurance” did not constitute “other insurance” – indeed was “assurance” that was the “antithesis of insurance”. Id. at 11-14.

Mr. Waterman additionally resolved another companion personal injury claim on June 10, 2011. Yet another guest passenger was an I-664 car accident victim in Newport News, Virginia, because the offending USAA motorist was following too closely.

Despite sustaining a 25-35 m.p.h. impact, the car accident victim experienced increasing delayed symptoms after returning to North Carolina. Mr. Waterman simply collected and submitted the medical bills and records across state lines from his law office without his client having to return to Newport News, Virginia.

Mr. Waterman also settled the companion personal injury claim against a USAA insured on June 10, 2011. It was a guest passenger injured when rear-ended in an I-664 car accident in Newport News, Virginia.

That claimant initially was treated at Mary Immaculate Hospital in Newport News, Virginia, then followed with physicians in her home state, North Carolina. The victim located Mr. Waterman through his website, and he was able to handle the car accident claim across state lines using modern technology.

On June 10, 2011, Mr. Waterman settled a driver’s personal injury claim against an insured of United States Automobile Association. It arose out of a car accident on Interstate 664 in Newport News, Virginia.

The car accident victim resided in North Carolina. Despite her being out-of-state, Mt. Waterman was able to investigate, package, and negotiate the personal injury claim using email, telefax, and telephone without the client having to travel to his law office in Newport News, Virginia.

In CNH America, LLC v. Smith, No. 091991 (Jan. 13, 2011), the Virginia Supreme Court reversed a $1,750,000.00 jury verdict for Plaintiff in a special case of product liability in Smyth County, Virginia. Plaintiff’s expert opinion testimony lacked adequate foundation. Id. at 9-11.

CNH America “remanded” for “full trial on the merits”, as CNH America has requested on appeal. Id. at 12. Had Defendant instead requested the Virginia Supreme Court to “render,” presumably final judgment for CNH America would have been entered in this special case.

In Harris v. Commonwealth, 279 Va. 123 (2010), the Virginia Supreme Court addressed Virginia’s Civil Commitment of Sexually Violent Predators Act, Va. Code Ann. §37.2-900, et seq., In a victory for crime victims, it upheld the civil commitment of an incarcerated sex offender to the custody of Virginia’s Department of Mental Health, Mental Retardation and Substance Abuse Services for “appropriate treatment and confinement in a secure facility”. Id. at 127, 129.

The Commonwealth of Virginia had identified the wrong predicate criminal offense in its Petition for inclusion in its “database as a prisoner incarcerated for a sexually violent offense”. Id. at 126-127. But Harris found no error in the trial court allowing the Commonwealth to amend and not dismissing the Petition, id. at 129-130; thereby safeguarding potential crime victims from a potential recidivist being released after serving his criminal sentence.