Virginia Injury Attorney Blog

Johnson v. Woodward, 281 Va. 403 (2011) addressed the jurisdiction of trial courts upon entry of final orders. It was on appeal from the Circuit Court of Gloucester County.

Johnson reaffirmed that under Va. Sup. Ct. Rule 1:1 “[a]ll final judgment, orders, and decrees…shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer”. Id. at 408. It also reaffirms that the 21-day jurisdictional rule applies to entry of non-suit orders vis-à-vis pending motions for sanctions. Id. at 408-409.

Additionally, Johnson reaffirmed that “a circuit court may avoid the application of the 21 day time period in Rule 1:1 by including specific language stating that the court is retaining jurisdiction to address matters still pending before the court.” Id. at 409-410. In the order granting non-suit in Johnson, the Gloucester Circuit Court explicitly retained its jurisdiction over the pending Va. Code Ann. 8.01-271.1 motion for attorneys fees and costs and, moreover, specifically stated it was not a final order for purposes of Rule 1:1.

On January 13, 2012, the Virginia Supreme Court issued its opinion in DeMille v. Commonwealth, 2012 Va. LEXIS 13, a case involving criminal sexual abuse. DeMille affirmed the judgment of Circuit Court for Fairfax County that the defendant rapist was a “sexual violent predator in need of treatment in a secure [civil] facility” after his scheduled release from the Department of Corrections. Id. at *16.

Specifically, DeMille found under Va. Code Ann. §37.2-900, et. seq., the Civil Commitment of Sexually Violent Predators Act (“SVPA”), that the “factual determination of whether a respondent is a sexually violent predator likely to engage in sexually violent acts is to be based on the totality of the record, including but not limited to expert testimony”. Id. at *1 (emphasis added). Mr. Waterman handles personal injury cases for sexual abuse and other crime victims.

The Bencher is the bi-monthly magazine of the American Inns of Court. Its current President is The Honorable Donald W. Lemons, presently the longest serving Justice on the Virginia Supreme Court.

The January/February 2012 issue features “Samuel Leibowitz: A Courageous Advocate”. Leibowitz was acclaimed for his defense of the “Scottsboro boys” in Alabama, a precedent-setting civil rights case that went to the United States Supreme Court.

Mr. Waterman is a member of the American Inns of Court, which as Justice Lemons observes is to “promote professionalism, civility, ethical behavior and excellent work product at the American Bench and Bar”. Mr. Waterman has handled special cases of civil rights violation.

On January 19, 2012, Mr. Waterman accepted the tender of six-figure liability policy limits for a car accident by State Farm Mutual Automobile Insurance Company. On October 9, 2010, State Farm’s insured drove on the wrong side of State Route 250 in Goochland County, Virginia; collided head-on with the car in which the victim was a guest passenger; and was cited for driving under the influence of alcohol in violation of Va. Code Ann. §18.2-266.

The offending motorist resided in Manakin Sabot, Virginia; while the victim passenger was traveling from Vorhees, New Jersey. Mr. Waterman is able to represent out-of-state victims of car accidents, other personal injury and wrongful death by email, telephone and/or telefax expeditiously without them having to travel to his office in Newport News, Virginia.

The Winter 2011-2012 issue of The Safety Report features as an article “15 WAYS TO PROTECT YOUR CHILD FROM SEXUAL ABUSE”. “Some child abuse studies have reported that as many as 1 in 3 females and 1 and 6 males report experiencing some form of sexual abuse before age 17”. Id. at 38.

The article notes that the overwhelming percentage of child sexual abuse is perpetrated by someone the child knows, usually a relative. Id. at 39. It also notes that for a variety of reasons, such crime victims typically do not disclose sexual abuse for years if at all. Id.

On January 17, 2012, Mr. Waterman settled a client’s personal injury claim arising out of a two-car accident. A Mechanicsville resident broadsided a Williamsburg resident when disregarding a red light in Richmond, Virginia.

The vehicle crash victim received months of treatment from healthcare providers in the City of Williamsburg, James City County and York County. Mr. Waterman was able to resolve the claim favorably without filing suit.

Citing Va. Code Ann. §8.01-296, Defendant Riverside doctors emphasize that Plaintiff did not attempt to serve them at their homes in the birth-related personal injury lawsuit for medical malpractice of Andre L. Gibbons, Jr., et al. v. Riverside OB/GYN and Family Care, et al., No. CL10-2326T-01 in Circuit Court for the City of Newport News, Virginia. Under §8.01-296, however, service at home is permissible, but not required.

§8.01-296 permits service anywhere. Personal service commonly is effected at defendants’ places of business, including through their agents there – for example, Dr. James M. Mullins, III was served with medical malpractice suit papers at his place of business on August 9, 1999, in Shannon S. Fernandez, et al. v. James M. Mullins, III, No. CL9927106H-02 in Newport News Circuit Court, without any objection.

Plaintiff’s experienced professional process servers actually served Defendant Riverside doctors in the Gibbons medical malpractice case through their respective agents who represented that they could accept service at their regular places of business on December 5 and 6, 2011, respectively; which should be good service of process within 1 year of filing. That is reflected in the Service Returns properly filed with the Court Clerk.

Even if arguendo service of Defendant Riverside doctors in the Gibbons medical malpractice action within 1 year of filing was not effective (which is denied), that should not be fatal under the circumstances at bar. Plaintiff again served Defendant Riverside doctors promptly after they filed defensive pleadings, which comes within the “due diligence” exception ignored by Defendants.

Va. Code Ann. §8.01-275.1 cited by Defendant Riverside doctors in the Gibbons medical malpractice lawsuit also mandates: “Service of process on a defendant more than twelve months after the suit or action was commenced shall be timely upon a finding by the court that the plaintiff exercised due diligence to have timely service made on the defendant.” (emphasis added). Likewise, Va. Code Ann. §8.01-277(B) cited by Riverside Defendant doctors provides:

Upon finding that the plaintiff did not exercise due diligence to have timely service and sustaining the motion to dismiss, the court shall dismiss the action with prejudice. Upon finding that the plaintiff did exercise due diligence to have timely service and denying the motion to dismiss, the court shall require the person filing such motion to file a responsive pleading within 21 days of that ruling.

(emphasis added). To the same effect is Va. Sup. Ct. R. 3:5: “No order, judgment or decree shall be entered against a defendant who was served with process more than one year after the institution of the action against that defendant unless the court finds as a fact that plaintiff exercised due diligence to have timely service on that defendant.” (emphasis added).

Defendant Riverside doctors in the Gibbons medical malpractice suit assert that the Norfolk Circuit Court decision in Drewry v. Nottingham, 62 Va. Cir. 269 (Norfolk Mar. 22, 2004) is dispositive in their favor. But it is not. It is distinguishable on three (3) alternate grounds.

First, unlike Plaintiff in the Gibbons medical malpractice case, plaintiff in Drewry simply posted at the wrong home address for defendants. Second, unlike Plaintiff in Gibbons, plaintiff in Drewry never effected service on defendant. Third, unlike Plaintiff in Gibbons, plaintiff in Drewry made no showing of “due diligence”. Id. at 269-272.

Moreover, Drewry cited the Virginia Supreme Court for the following definition of “due diligence”: “such a measure of prudence, activity, or assiduity, as is properly to be expected from, and expected by, a reasonable and prudent man under the particular circumstances, not measured by any absolute standard, but depending on the relative facts of the special case.” Id. at 272 (quoting STB Marketing Corp. v. Zolfaghari, 240 Va. 140, 144 (1990))(emphasis added). Plaintiff in the Gibbons medical malpractice action exercised “due diligence” – was reasonably prudent – under STB. Plaintiff: (1) verified the places of business of Riverside Defendant doctors; (2) requested issuance of Summonses promptly after obtaining the prerequisite written expert certification under Va. Code Ann. 8.01-20.1; (3) promptly delivered the Summonses to a professional process server for service; and (4) understood and relied that process was served through doctors’ agents who advised they were authorized to accept such service.

Plaintiff in the Gibbons medical malpractice lawsuit is more closely akin Palum v. Quinn, 59 Va. Cir. 35 (Loudoun Mar. 18, 2002). In Palum, plaintiff attempted substituted service at what erroneously was believed to be defendant’s home address within 1 year of filing, which service was quashed; and then posted service at defendant’s actual home address 15 months after filing. Id. at 38. Finding that plaintiff in Palum “acted in good faith” and “had a reasonable belief,” Judge Chamblin found “due diligence” and denied the Motion to Dismiss. Id. at 39-40.

Judge Chamblin in Palum observed, “Since the trial court has the discretion to waive the rule [about serving within 1 year] where it finds the plaintiff to have behaved in good faith, the rule cannot be considered to be a jurisdictional rule; it is, rather, a administrative, quasi-penal one.” Id. at 39 (quoting W. Hamilton Bryson, Bryson on Virginia Civil Procedure (3d Edition) at 110). “While the definition of ‘due diligence’ approved in Dennis appears to impose upon a plaintiff a strong duty to accomplish timely service, I think that the duty needs to be considered in the relation to the reason for the rule and the statute.” Id. (emphasis added). Re the plaintiff in Palum like Plaintiff in the Gibbons medical malpractice suit having waited almost 1 year to attempt service, Judge Chamblin emphasized: “The law allows the Plaintiff the one-year window for service on defendant.” Id.

Judge Chamblin in Palum also emphasized, “The purpose of both [8.01-275.1 and the Virginia Supreme Court Rule] is to promote the timely prosecution of lawsuits and to avoid abuse of the judicial system.” Id. at 38. Plaintiff in the Gibbons medical malpractice case attempted “timely prosecution” and did not “abuse…the judicial system”. Conversely, the judicial system is subject to potential “abuse” when defendants disavow their office agent’s authority after they have accepted service right after 1 year has passed.

Flagler v. Liberty Mutual Ins. Co., 73 Va. Cir. 61 (Fairfax Mar. 9, 2007) and Goldstein v. Bourgad, 68 Va. Cir. 132 (Fairfax Jun. 7, 2005) also support Plaintiff in the Gibbons medical malpractice action. In Goldstein, the court found “due diligence” even though service within 1 year was defective because the Notice of Motion for Judgment was missing; where plaintiff re-served correctly within an extension of time after 1 year. In Flagler, plaintiff was granted an additional 2 months to serve, after failing to serve within the first 14 months; and subsequently was dismissed for still failing to serve at all.

In January, 2012, the Inspector General of the Department of Health and Human Services (“DHHS”) issued a 42-page report titled Hospital Incident Reporting Systems Do Not Capture Most Patient Harm, OEI-06—09-00091. As a corollary, incidents of medical malpractice may go underreported.

“Hospital staff did not report 86 percent of [adverse] events to incident reporting systems,” and surveyed hospital “administrators acknowledged that incident reporting systems provide incomplete information about how often [adverse] events occur,” were Findings of the report’s Executive Summary. Id. at ii (bolding in original). That means surveyed hospitals reported less than 1 of 7 incidents which potentially could result in a medical malpractice claim.

Another of the disturbing Findings by the DHHS Inspector General is that surveyed hospitals “made few changes to policy or practices as a result of reported [adverse] events.” Id. Consequently, the chances of future incidents of medical malpractice may be increased by such lack of proactive invention.

Headlining the DHHS Inspector General’s study on January 6, 2012, The New York Times reported that adverse events not reported by surveyed hospitals comprised “some of the most serious problems, including some that caused patients to die”. This January 2012 report is the most recent in a “series of Office of Inspector General (OIG) reports about adverse and temporary harm events in hospitals,” including Adverse Events in Hospitals: National Incidence Among Medical Beneficiaries, OEI-06-09-00090 (November 2010) and Adverse Events in Hospitals: Methods for Identifying Events, OEI-06-08-00221 (March 2010). Id. at 1.

The American Association for Justice (“AAJ”) posted TrialNews online this week. It featured a healthcare note bearing on medical malpractice.

“The Joint Commission [on Accreditation of Healthcare Organizations (“JCAHO”)] is urging hospitals to address the ongoing problem of health care worker fatigue as it relates to patient safety,” reported AAJ vis-à-vis potential medical malpractice. “In a recently issued ‘sentinel event alert,’ the predominant accrediting organization for U.S. hospitals suggested that administrators take specific actions, including conducting an assessment of staffing levels, shift schedules, and policies that may keep personnel from getting adequate rest.”

Trial is the monthly magazine of the American Association for Justice (“AAJ”) www.justice.org, formerly the American Trial Lawyer’s Association (“ATLA”), the premier national organization for plaintiff lawyers. Trial’s November 2011 issue focuses on “Products Liability” with the following articles: “Go Global for Stronger Safety Claims,” “Preemption’s Uncertain Path,” “A Closer Look at Asbestos Cases,” “Some Assembly Required,” and “A New Weapon in Pharma Cases”.

Mr. Waterman began his 30-year legal career in New Orleans, Louisiana, as a large defense firm lawyer focusing on product liability and medical malpractice. Since becoming a lawyer for victims, he has continued to handle such cases, including product liability claims for wrongful death against a national vehicle manufacturer in federal court and for personal injury against a national pharceutical company in multi-claimant litigation.

A number of other lawyers in Mr. Waterman’s firm have a products liability practice that is limited to asbestos victims. Many, but not all, of their clients were exposed to asbestos at the Newport News Shipyard on the Peninsula and/or the Norfolk Naval Base on the Southside of Hampton Roads, Virginia.

Trial is the monthly magazine of the American Association for Justice (“AAJ”) www.justice.org. Its December 2011 issue features an article on crime victims: “When Torts and Crimes Overlap”.

“When a civil suit involves a criminal act, the perpetrator’s prosecution can be an invaluable source of information,” highlight Trial’s crime victim coverage. “Building a good relationship with the prosecutor is the key to tapping into that resource and obtaining justice for the victim.” Id. at 19.

Mr. Waterman has been a member of AAJ since 1987. He regularly represents crime victims in tort cases, including particularly victims of sexual abuse and most recently a brain injury victim who was awarded $6,100,000.00 by a jury in Circuit Court for Gloucester County, Virginia.