Virginia Injury Attorney Blog

A leading article in the May 2012 issue of Trial magazine is “ROBOTS Holding the Scalpel”. Its subheading is: “As surgeons and hospitals turn to robotic surgery, these systems will become a factor in more medical malpractice cases. Although cases involving robotic surgery resemble other malpractice suits, there was several unique considerations you must keep in mind.” Id. at 36.

Potential medical malpractice liability considerations include evolving standard of care, informed consent, learning curve, longer surgical time, open conversion, and (staff) machine setup. Id. at 38-40. “Because robotic surgery is so young and has little supporting data, the standard of disclosure of the risks and benefits that hospitals must provide each patient is fluid and evolving.” Id. at 38.

“Every new technology carries a learning curve.” Id. at 39. “Medical professionals have said it could take anywhere from 200 to 700 robotic-assisted surgeries for a surgeon to become highly proficient,” id.; which may have medical malpractice implications.

A feature article in Trial magazine’s May 2012 issue focusing on medical malpractice is “TAINTED Transplants”. Its subtitle is: “Patients may wait for years to be matched with a donor organ, but sometimes they contract diseases and infections from the organs that were intended to save their lives”. Id. at 28-29.

The Center for Disease Control (CDC) has made major changes to its 1994 Public Health Service guidelines, and its Office of Blood, Organ and other Tissue Safety has drafted 2011 guidelines. However, the Trial article observes that healthcare industry “emphasis has always been on monitoring transplant availability rather than unintentional disease transmission [and] precautions are not fail-safe,” thus raising the specter of medical malpractice. Id. at 31.

“The Uniform Organ Gift Act varies from state to state.” Id. at 34. “Under these acts, providers may be immune in performing transplantation surgeries with signed documentation, but they may not be shielded for poor decision-making, such as transplanting an HIV-infected liver,” id.; so medical malpractice lawsuits still may “help the victims seek financial compensation for medical bills, permanent disabilities, decreased quality of life, and pain and suffering – as well as help promote safer health care”. Id. at 30.

Trial is the monthly magazine of American Association for Justice (www.justice.org), of which Mr. Waterman has been a member for decades, and which annually devotes an issue to medical malpractice. Its May 2012 cover marquees “MEDICAL NEGLIGENCE: Cut to the heart of health care cases”.

The lead article is “The Problem with PRIVILEGES”. Its subheading is: “Medical malpractice may reveal another tortfeasor – the hospital that negligently granted credentials and privileges to the physician. Because the tort may not be apparent when the malpractice case is file, thorough discovery is important.” Id. at 15.

The second Trial article is “Why Words, Values, and Beliefs Matter,” by Mr. Waterman’s colleague Patrick Malone, co-author of Rules of the Road: A Plaintiff Lawyer’s Guide to Winning Liability and of Winning Medical Malpractice Cases with the Rules of the Road Technique. The article subheading is: “The facts may be on your client’s side, but facts alone won’t convince the jury in a medical malpractice case. Take the next step by appealing to jurors’ core values and principles and placing the facts in context.” Id. at 22.

The Verdicts & Settlements section of Trial also published a $750,000.00 settlement for “MEDICAL NEGLIGENCE,” captioned “Failure to Diagnose, Treat Teen’s Heart Failure”. A 17 year-old California victim suddenly died from congestive heart failure 6 days after being discharged from the local Emergency Room with a misdiagnosis of gastritis. Id. at 12.

The Court of Appeals of Virginia’s Opinion in Beshah v. Commonwealth, No. 2070-10-4 (Va. app. May 8, 2012) proves what Plaintiff medical malpractice lawyers have complained for decades: despite the criminality of it, healthcare providers in Virginia fabricate patient charts to cover their tracks! Beshah upheld the multiple forgery convictions of a licensed practical nurse (“LPN”) who made at least 50 documented false entries in the neglected patient’s records, plus offered “perjured testimony” at trial in her defense.

Defendant LPN in Beshah perpetrated her frauds while working at a Medicaid-certified skilled nursing home in Arlington. Id. at 2. “During [2-month FBI] surveillance, as shown on video, [the LPN] did not administer some medications as prescribed, but she recorded having administered those medications. [The LPN] also failed to perform nursing care she documented she had performed. [The LPN] recorded vital signs when she had not taken them, recorded turning and repositioning [the patient] when she had not done so, and recorded performing incontinence care when she had not. She fabricated entries in [the patient’s] medical records numerous times during the surveillance period.” Id. at 3.

The LPN’s “failure to accurately document was not an isolated event, but was a pattern of behavior to misrepresent that status of the patient’s treatment and medication.” Id. at 8. Beshah observed that the LPN’s misrepresentations were “potentially dangerous” to the patient crime victim, who was “high risk” as elderly, infirm, immobile, and demented. Id. at 2-4.

Although the LPN was the focus of the Beshah Opinion, a Grand Jury also indicted “a number of other employees of Potomac Center for crimes involving [the patient’s] care”! Id. at 4. One criminal defense lawyer represented 6 of the healthcare employees alone! Id.

On May 21, 2012, Mr. Waterman filed Petition for Rehearing of Appellee/Cross-Appellant in Burns v. Gagnon, No. 110754 in the Virginia Supreme Court, the $6,100,000.00 brain injury jury award on appeal from the Circuit Court of Gloucester County, Virginia. It alleges manifest errors of law vis-à-vis: (1) Burns assumed a duty of care as a matter of law; (2) Burns’ obligation was ministerial under the facts of this case; and (3) Burns’ negligence was gross as a matter of law.

On May 21, 2012, Mr. Waterman also filed Appellant’s Petition for Rehearing in the companion crime victim appeal, Gagnon v. Burns, No. 110767 in the Virginia Supreme Court. That asserts manifest errors of law vis-à-vis the responsibility of Burns as negligent tortfeasor for James Newsome as intentional tortfeasor and/or for Christine Newsome as negligent tortfeasor, and of James Newsome for Burns and for Christine Newsome.

On May 18, 2012, Petition for Rehearing of Burns was filed in the Virginia Supreme Court under the consolidated captions of Burns and Gagnon. Thereby Burns claims in the brain injury appeal: (1) the court’s finding that as a public official Burns owed no special duties to Gagnon precludes any findings that Burns assumed any duties for supervision and care of Gagnon as a matter of law; (2) Gagnon waived remand to the jury of any findings of assumed duties; (3) the issue of gross negligence previously adjudicated by the trial court acting as the trier of fact and these decisions constitute res adjudicata; and (4) Gagnon agreed to have the issues of gross negligent adjudicated by the trial court, acting as trier of fact, and thus waived the trial of gross negligence at trial.

The Spring 2012 issue of The Safety Report marquees vehicle accidents. Its cover story is “Distracted Driving: 1 Second Can Change Everything”.

The article notes that distracted driving is responsible for almost 450,000 vehicle accidents, including more than 5,000 wrongful death (or 16% of all fatal crashes in 2009), annually – and that the numbers are trending upward. Id. at 33. EndDD.org reports that “18 percent of all distracted driving fatalities occur because of cellphone use;” and “a 2011 Virginia Tech study found that a driver is 23 times more likely to crash if he/she is texting while driving”. Id.

The Safety Report highlights other disturbing statistics that show young adults in general and teenagers in particular have substantial risks of car crashes and wrongful death associated with drivers using cellphones. For example, “10 percent of drivers aged 16 to 24 years old are on their phone at any one time,” and “40 percent of American teens say thay have been in a car when the driver used a cellphone in a way that put people in danger”. Id. at 35.

In 2010, an online survey of teens ages 16-19 by AAA (www.aaa.com) and Seventeen Magazine (www.seventeen.com) “found that 86% had driven while distracted even though 84% know it’s dangerous”. Id at 37. A harbinger for car collisions is a troubling 2011 Ad Council statistic that “77% of young adult drivers are very/somewhat confident that they can safely text while driving”. Id.

On April 20, 2012, the Virginia Supreme Court upheld the non-suit rights of car crash victims. Specifically, Lewis v. McIlroy, No. 110485 (Va. Apr. 20, 2012) held that the tolling provision of Va. Code Ann. §8.01-229(E)(3) applied whether plaintiff refiled suit within 6 months after or before entry of non-suit order on the previously filed lawsuit. Id. at 7.

Plaintiffs’ uninsured/underinsured automobile (“UM/UIM”) carriers, Government Employee Insurance Company (“GEICO”) and State Farm Mutual Automobile Insurance Company (“State Farm”), had sought to avoid potential financial responsibility for the auto collision personal injury damages. But Laws held the circuit court erred in granting State Farm and defendant’s motion to dismiss and GEICO’s plea in bar. Id. at 12.

In May, 2012, Mr. Waterman obtained a $100,000.00 settlement for a Newport News car accident victim. Trustgard Insurance Company paid its liability policy limits of $50,000.00 and State Farm paid its underinsured motorist (UIM) policy limits of $50,000.00.

The offending driver was cited for failure to yield, causing the two-car collision. The victim motorist was treated by Newport News Emergency Medical Service, Mary Immaculate Hospital, Hampton Roads Radiology Associates, Commonwealth Family Practice, Riverside Regional Medical Center, Rebound Chiropractic, Riverside Emergency Physicians, Peninsula Radiology Associates, Hampton Roads Neurosurgical & Spine Specialists, Orthopaedic & Spine Center, and Cardiovascular Center of Hampton Roads.

On May 8, 2012, Mr. Waterman implemented the Court-approved settlement of a minor’s car accident claim against the offending driver insured by State Farm Mutual Automobile Insurance Company. Like his mother, the child was a guest passenger in the victim family automobile being driven by his father in Goochland County, Virginia.

All of the victim family members were rushed to the Emergency Room at VCU’s Medical College of Virginia in Richmond. The child and father were discharged after 2 days, but the mother was hospitalized for a protracted period because of personal injuries caused in the car accident by the allegedly drunk driver being on the wrong side of State Route 250.

On December 29, 2009, young Jacob Fletcher Boarman-Spivey of Williamsburg, Virginia, rear-ended another vehicle which rear-ended yet another vehicle on South England Street. That multi-car collision injured Mr. Waterman’s client, who claims over $23,000.00 in medical expenses after the same.

The offending motorist’s insurer, Safeco, has $100,000.00 of automobile liability coverage for the car crash injuries, but offered to pay only $30,000.00 for all medical expenses, pain, suffering, inconvenience, and other personal injury damages of the victim. Hence on May 7, 2012, Mr. Waterman had legal summons served on the Defendant in Linda Bryan v. Jacob Fletcher Boarman-Spivey, No. 830CL11001486-00 in the Circuit Court for the City of Williamsburg and James City County, Virginia.

Virginia Business magazine recently published its “Virginia Business List of Leaders” for 2012. Mr. Waterman’s law office (Patten, Wornom, Hatten & Diamonstein, L.C.) was named under “Law Firms”. Id. at 89.

Patten Wornom in Newport News boasts 24 lawyers, making it the largest law firm based on the Peninsula. In addition to business and asbestos, its practice includes vehicle accident, medical malpractice, brain injury, and other personal injury and wrongful death litigation – the focus of Mr. Waterman’s caseload.

The same Virginia Business issue reported that after a two-year absence a LPGA tournament would return to Kingsmill Resort during September 6-9, 2012, the new $1,300,000.00 purse Kingsmill Championship. Id. at 38-40. For over two decades, Mr. Waterman has resided in Kingsmill Resort, which is undergoing a $6,000,000.00 long-term expansion and upgrade.

On April 30, 2012, brain injury victim Gregory J. Gagnon filed Notice of Intent for rehearing as Appellee/Cross-Appellant in Burns v. Gagnon, No. 110754 in the Virginia Supreme Court; and as Appellant in Gagnon v. Burns, No. 110767. On April 25, 2012, Appellant Travis Burns filed Notice of Intent for rehearing in Burns v. Gagnon, No. 110754.

Both parties seek rehearing on the Opinion of the Virginia Supreme Court entered April 20, 2012, Burns v. Gagnon, 2012 Va. LEXIS 93 (Apr. 20, 2012). That Opinion is on direct appeals and on cross-appeal of a 2010 jury verdict for $6,100,000.00 in favor of the crime victim in Circuit Court for Gloucester County, Virginia.