Virginia Injury Attorney Blog

Happy Halloween! Amid all the costuming and merriment, remember to think safety.

Time-worn precautionary practices include buying fire-resistant costumes with reflective surfaces or accessories; using the “buddy” system, flashlights, and cell phones; warning against going inside homes visited; and carefully checking wrappers for tampering. Be wary of cars, strangers, and vandals.

Please make sure your children are not ghoulish victims of personal injury or wrongful death. Trick or treat!

On October 27, 2011, Mr. Waterman refiled a medical malpractice suit in Circuit Court for the City of Newport News, Virginia, captioned Shirley Frazier Burrell v. Riverside Hospital Inc. and Nurse M. Ames. The original suit was in the now – widowed patient’s then – married name, Shirley Frazier Shakshober v. Riverside Hospital, Inc. and Nurse M. Ames, No. CL0800296P-03.

Burrell/Shakshober is a patient fall case against Riverside and its nurse, alleging their failure to assess and to intervene properly for the patient as a known high fall risk. Despite the patient admittedly suffering from intermittent confusion, having a mobility problem, being under the influence of mind-altering narcotics, being elderly, being very anxious, and even constantly trying to get out of bed; Riverside and its nurse did not activate the patient’s bed alarm system or use any physical restraints before the patient fell (even though Riverside and its nurse did restrain the patient after she fell.

Mr. Waterman previously sued Riverside in Newport News Circuit Court in another patient fall case, Johnson v. Riverside Hosp., Inc., No. CL00-29638-DP. Mr. Waterman obtained a $1,600,000.00 jury verdict against Riverside in Johnson in 2005, which was upheld on appeal by the Virginia Supreme Court in Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006).

In the pending Burrell/Shakshober medical malpractice lawsuit, a UVA neuroradiologist, a MCV anesthesiologist, a Harvard neurologist, a Rothman Institute orhopaedic surgeon, the patient’s own orthopaedic surgeon, a Virginia nursing expert, and a national nursing expert are slated to testify against Riverside and its nurse on the standard of care and/or the causation of the permanent debilitating neurological injuries suffered by the patient fall victim. Jury trial on the merits is expected to be rescheduled for 2012.

On October 25, 2011, Mr. Waterman files Brief of Appellant in Gagnon v. Burns, No. 110767 c/w No. 110754 in the Supreme Court of Virginia in Richmond, Virginia. Waiver is an issue in that brain injury appeal of the jury’s $6,100,000.00 verdict in Circuit Court for Gloucester County, Virginia, CL08-572.

Under Virginia law, a proponent must “prove the elements of such waiver by clear and convincing evidence,” Baumann v. Capozio, 269 Va. 356, 361 (2005) (emphasis added); based on the opposition’s actions “when considered together,” Shelton v. Commonwealth, 274 Va. 121, 127 (2007)(motion and qualified endorsement of final order preserved) and “taken in context”. Wright v. Norfolk and W. Ry. Co., 245 Va. 160, 168 (1993)(lawyer voicing no objection to the “form” did not waive). Va. Sup. Ct. Rule 5:25 focus is whether the judge had “opportunity to rule intelligently on the issue,” Scialdone v. Commonwealth, 279 Va. 422, 437 (2010); so the Gagnon crime victim party need only have put the judge “on notice of his position,” not use a certain phrase, id. at 438; and the judge ruling on the issue evinces opportunity. Id. at 439 (and all cases therein).

Since 1992, it suffices that the Gagnon brain injury party “at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action the court therefore.” Va. Code Ann. §8.01-384 (A). “No party, after having made an objection or motion known to the court, shall be required to make such objection or motion again to preserve his right to appeal, challenge, or more for reconsideration of, a ruling, order, or action of the court. Arguments made at trial via written pleading, memorandum, recital of objections in a final order, oral argument reduced to transcript, or agreed written statements of facts shall, unless expressly withdrawn or waived, be deemed preserved therein for assertion on appeal.” Id. (emphasis added).

“Code §8.01-384(A)…is controlling of Rule 5:25, and we must apply the statutory provision.” Helms v. Manspile, 277 Va. 1, 7 (2009) (memo preserved). Brown v. Commonwealth, 279 Va. 210, 217, cert. denied, 131 S. Ct. 217 (2010)(oral argument preserved). “Under Code §8.01-384(A) and our analysis in Helms, if a trial court is aware of a litigant’s legal position and the litigant did not expressly waive such arguments, the arguments remain preserved for appeal.” Id. (emphasis added).

“While the doctrine of invited error remains good law, it simply has no application where, as here, the record shows that a party clearly objected to a specific ruling of the trial court to which error is assigned on appeal, even if the party failed to object to instructions applying or implementing the trial court’s prior ruling.” King v. Commonwealth, 264 Va. 576, 582 (2002). “The undeniable purpose of Code §8.01-384(A) is to relieve counsel of the burden of making repeated further objections to each subsequent action of the trial court that applies or implements a prior ruling to which an objection has already been noted.” Id. at 581 (not objecting to instruction not waiver).

Analogously to the Gagnon brain injury appeal, negligence issue was not waived by not objecting to jury submission, where before and after the judge was “fully apprised,” denied motion, and stated: “The objections to this ruling are preserved.” General Ins. of Roanoke, Inc. v. Page, 250 Va. 409, 412 (1995)(emphasis added). Likewise, there also was no waiver of underlying evidentiary objection maintained post-trial, even though plaintiff’s counsel replied, “‘That’s fine, Your Honor,’ when [disputed] tendered instruction was amended”. McMinn v. Rounds, 267 Va. 277, 280-281 (2004)(emphasis added)(and instruction cases cited therein).

The Summer 2011 issue of The Safety Report featured article “Brain Injury – Recognizing a ‘Hidden Disability’”. The Center for Disease Control and Prevention (“CDC”) estimates that annually there are 1,700,000 traumatic brain injury (“TBI”) victims in the United States, causing 1,370,000 emergency room visits, 255,000 hospitalizations, and 52,000 deaths. Id. at 42.

The CDC identifies the following most common causes of TBI: falls (35.2%), motor vehicle accidents (17.3%), assaults (10%), and other impact events (16.5%). The Brain Injury Association of America notes that TBI can have permanent physical, mental, emotional and psychological components, including personality changes. Id. at 42-43.

The crime victim represented by Mr. Waterman in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, on appeal before the Supreme Court of Virginia, No. 110767 c/w No. 110754, suffered such a multi-faceted TBI. That brain injury victim was assaulted on school premises and was awarded over $6,000,000.00 against his student assailant, another instigating student, and an Assistant Principal who did absolutely nothing after being forewarned and assuring he would notify school security.

On October 17, 2011, the Virginia Supreme Court granted in part and denied in part Appellant’s Motion for Writ of Certiorari in the brain injury action of Gagnon v. Burns, No. 110767 c/w 110754. Its Order made part of the appellate record the Jury Special Interrogatory forwarded by the Clerk, but not the Jury Verdict form offered by the Appellant and rejected by the Judge at trial (which apparently was destroyed).

Gagnon in on appeal from Circuit Court No. CL08-572 in Circuit Court for Gloucester County, Virginia. The jury awarded more than $6,000,000.00 to the crime victim represented by Mr. Waterman against former Assistant Principal Travis Burns, the student assailant, and the student encourager.

On October 14, 2011, Mr. Waterman filed a motor vehicle accident lawsuit for personal injury damages in Circuit Court for the City of Newport News, Virginia. The defendant was cited by Summons for failure to yield the right-of-way on Richneck Road in violation of Va. Code Ann. §46.2-825.

The vehicle crash caused several thousand dollars of damage to each party’s car. Since the collision, the victim has incurred more than $200,000.00 in healthcare expenses.

Despite apparent liability and substantial damages, the defendant’s liability insurance company repeatedly had refused the victim’s demands to tender its policy limits, forcing Mr. Waterman to proceed with suit. By failing to offer its $50,000.00 policy, Trustgard Insurance Company, a member of the Grange Mutual Casualty Group, doing business in Virginia under Grange Mutual Casualty Company, is exposing its insured, a Newport News resident, to ruinous liability in excess of its policy limits and, thereby, itself to a potential claim for insurance “bad faith.

The victim, another Newport News resident, has underinsured motorist (“UIM”) coverage with State Farm Mutual Automobile Insurance Company. But unfortunately, even her UIM policy limits atop the offending motorist’s liability policy limits probably would not cover the jury damages award expected for her magnitude of car collision personal injuries.

On October 12, 2011, Plaintiff, Shirley Frazier Burrell, non-suited Shirley Frazier Shakshober v. Riverside Hospital, Inc. and Nurse M. Ames, No. CL08-296 in the Circuit Court for the City of Newport News, Virginia. That was a medical malpractice lawsuit previously filed under her married name.

Va. Code Ann. §8.01-380 and Virginia Supreme Court jurisprudence provides that civil litigants can non-suit their case and then refile it within 6 months. Mr. Waterman will refile this patient fall cause for Ms. Burrell against Riverside and Nurse Melanie Ames within 30 days and promptly seek a 2-week jury trial in Newport News in 2012.

On October 6, 2011, Defendants filed Motions in Limine and Memorandum in Support in Shirley Frazier Shakshober v. Riverside Hospital, Inc., et al., No. CL08-296 in Circuit Court for he City of Newport News, Virginia, toward keeping from the jury twelve (12) points of evidence at trial. Since filing that patient fall lawsuit, Plaintiff has resumed her pre-marital name, Shirley Frazier Burrell.

1. Riverside Defendants seek to preclude evidence of other lawsuits, claims, and verdicts against Riverside. Riverside has been sued for medical malpractice on multiple occasions by Plaintiff’s lawyer (not to mention even more by numerous other attorneys), including particularly for another serious patient fall case that resulted in a roughly $1,670,000.00 verdict for that victim in 2005, which was upheld by the Virginia Supreme Court in 2006, Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006).

2. Riverside Defendants seek to preclude evidence of other patient falls at Riverside. For example, Riverside’s computer database in Riverside Hospital, Inc. v. Johnson indicates that literally hundreds of in-patients fall annually at Riverside Regional Medical Center alone, and that roughly 10% of those result in serious brain or other personal injury.

3. Riverside Defendants seek to preclude evidence its so-called Committee Meeting Minutes for Plaintiff’s patient fall. In addition to various so-called “incident reports” and like documents, Riverside kept minutes of its committee meeting about Plaintiff and her fall, some of which after evidentiary hearing the Court already ruled were not privileged from disclosure.

4. Riverside Defendants seek to preclude evidence of what was taught by nursing faculty to nursing students at Riverside School of Professional Nursing and at Riverside School of Practical Nursing in 2006 before, at, and after the patient fall of Plaintiff. Textbooks, syllabi, videotapes, handouts and/or other course materials of Riverside actually support what Plaintiff and her nursing expert state was the prevailing nursing standard of care in Virginia vis-à-vis fall risk assessment and fall risk intervention at the time of Plaintiff falling and being injured.

5. Riverside Defendants seek to preclude evidence of Riverside’s internal training and orientation materials about patient falls. The fact is that Riverside’s Orientation program, staff development instruction, in-services, and “computer based learning” (“CBL”) materials required for Riverside’s nurses in 2006 actually support what Plaintiff and her nursing expert state is the prevailing nursing standard of care in Virginia vis-à-vis fall risk assessment and fall risk intervention at the time of Plaintiff falling and being injured.

6. Riverside Defendants seek to preclude evidence related to complaints about nursing staffing, nursing shortages or like nursing deficiencies, such as about nurse-to-patient ratios. In particular, they seek to exclude from jury consideration in this medical malpractice case a prior complaint of another patient.

7. Riverside Defendants seek to preclude evidence regarding “causation” by Plaintiff’s standard of care nursing expert. Plaintiff’s expert nurse testified how Defendants giving the patient the narcotic Dilaudid shortly before her patient fall contributed to the patient falling by causing disorientation and confusion; plus Defendants also gave the patient Ambien the evening before.

8. Riverside Defendants seek to preclude from evidence Plaintiff’s orthopaedic surgeon providing causation opinions that are very favorable to her. Specifically, they want to exclude from jury consideration her orthopaedic surgery expert testifying that the repair surgery under general anesthesia necessitated by the patient fall aggravated her neurological condition and increased her neurological deficit.

9. Riverside Defendants seek to preclude from evidence Plaintiff’s anesthesia expert providing causation opinions that are very favorable to her. Specifically, they want to exclude from jury consideration her anesthesia expert testifying the patient suffered a stroke during the repair surgery under general anesthesia that she had to undergo because of the patient fall.

10. Riverside Defendants seek to preclude from evidence Plaintiff introducing testimony by their own nursing standard of care expert about whether physical restraints appropriately were used on her after the patient fall. One of Defendants’ nursing experts already has opined that it was appropriate for Defendants to use a posey vest on the patient after, but not before, she fell.

11. Riverside Defendants seek to preclude from evidence the fact that Defendant Nurse Ames and other healthcare providers of Plaintiff left the employment of Riverside at various points after the patient fall. Instead, they prefer jury expectation, assumption and/or speculation that all of the individual nurses and other healthcare providers of the patient still are (longtime) employees of Riverside.

12. Riverside Defendants seek to preclude from evidence a pharmacy medication issue involving Plaintiff while she was an in-patient of Riverside during 2000. Specifically, although Riverside destroyed all of her patient chart for that 2000 admission, an “incident report” survived and was discovered by Plaintiff after her patient fall in 2006.

On October 4, 2011, Mr. Waterman attended an ethics and professional program in Richmond, Virginia, presented by the Virginia State Bar and Attorney Liability Protection Society, Inc. (“ALPS”). The hot topic was “social media,” which surfaces with increasing frequency as key evidence in personal injury and wrongful death cases.

Rule 8:4(c) of Virginia’s Code of Professional Responsibility prohibits “dishonesty, fraud, deceit or misrepresentation” by a lawyer online; and companion Rule 8:4(a) prohibits a lawyer perpetrating the same through employees and contractors. But those limitations do not necessarily protect victims of personal injury and wrongful death against opposing parties, their insurers, and others “friending,” downloading and otherwise gaining material and information through social media such as Facebook, MySpace, LinkedIn, and the like.

Clients beware! Be circumspect!

On September 30, 2011, Mr. Waterman filed Motion for Writ of Certiorari in the brain injury case of Gagnon v. Burns, No. 110767 in the Virginia Supreme Court. It seeks to have the record on appeal enlarged to include the Jury Special Interrogatory and the Jury Verdict form he proffered but were rejected at trial in Gloucester Circuit Court, both of which critical documents are missing from the file inexplicably.

Virginia Supreme Court Rule 5:13 required that the Gloucester Circuit Court Clerk to prepare and transmit the entire record in the Gagnon brain injury appeal. Under Va. Code Ann. 8:01-673(A), the Virginia Supreme Court may award a writ of certiorari to complete the record “when part of a record is omitted”.

Like the rest of America, Virginia is exploding with “social media” – from YouTube to Facebook to Myspace to Twitter to LinkedIn to Lester v. Alliance Concrete to you-name-it! Most of the younger generation and increasing numbers of the older generation are expressing themselves online – including after being victims of car accidents, medical malpractice, assault and battery, and other personal injury.

In the 2010 brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, which now is on appeal before the Virginia Supreme Court, Nos. 110754 and 110767; social media was a would-be cornerstone of the defense. Defendants introduced into evidence various printouts they claimed were threatening profane communications and image posting of Plaintiff on Myspace.com.

Ultimately, the jury was not persuaded by the social media claimed in Gagnon. But like some other personal injury and wrongful death victims, Plaintiff was put to substantial expense and risk in proving that he was not responsible for the supposed Myspace.com materials.

Extensive expert computer forensics costing Plaintiff over $10,000.00 were required to show that the supposed Myspace communications and image posting of the brain injury Plaintiff actually were created by others. Fortunately for Plaintiff in Gagnon (but unfortunately for plaintiffs in other personal injury and wrongful death cases), social media messages and postings leave trails of evidence on hard-drives that usually are recoverable.

It always is important to be very careful about use of social media, particularly when one is victim of car accident, medical malpractice, other personal injury, or wrongful death. But as in Gagnon, it also may be important for victims to preserve and analyze hard-drives.