Virginia Injury Attorney Blog

On September 28, 2012, Mr. Waterman argued Plaintiff’s Motion for Leave to Amend in the wrongful death suit of Arshan v. Stephen E. Plotnick, M.D., et al., No. CL11-1316 in the Circuit Court for the City of Williamsburg and James City County, Virginia. The Judge granted the Motion over the objection of Defendants, Dr. Plotnick and his PLLC, which formerly practiced medicine in Virginia Beach, Virginia.

This medical malpractice matter is controlled by Rule 1:8 of the Rules of the Virginia Supreme Court of Virginia. “Leave to amend shall be liberally granted in furtherance of the ends of justice.” Va. Sup. Ct. R. 1:8 (emphasis added).

Over 50 years ago the Virginia Supreme Court embraced its Rule’s liberality toward amendment as the modern trend, which governs the Arshan wrongful death case. “The tendency of modern decisions is reflected in our Rule”. Goode v. Courtney, 200 Va. 804, 807 (1959).

Accordingly, where as in the Arshan medical malpractice action there really is no undue prejudice or previous amendment, the amendment should be granted. E.g., Mortarino v. Consultant Eng’g Sevs., Inc. 251 Va. 289 (1996); Kole v. City of Chesapeake, 247 Va. 51 (1994). Indeed, in Gray v. Rhoads, 55 Va. Cir. 362, 377-378 (Charlottesville Jul. 2, 2001), upon dismissing claims for negligent supervision and training, sua sponte the judge granted leave to amend for claims of negligent hiring and retention.

Virginia Circuit Courts routinely grant leave to amend to further justice, this Arshan wrongful death lawsuit being no exception. E.g., Gagnon v. Burns, No. CL08-572 (Gloucester Jun. 16, 2009); Seibert v. Riverside Hosp., Inc., No. 40366-DP (Newport News Nov. 13, 2007)(medical malpractice); Pedigo v. Flattop Mountain Landowner’s Assn., Inc, 73 Va. Cir. 26, 33 (Greene Dec. 7, 2006); PMG Invs., LLC v. Gravely-Robinson, 71 Va. Cir. 140, 141 (Roanoke Jun. 14, 2006). In PMG, the circuit court granted an amendment on an appeal de novo from General District Court. In Pedigo, the circuit court granted leave to amend after sustaining a demurrer.

“A trial court that fails to allow amendments is likely to have abused its discretion. See, e.g., Peterson v. Castano, 260 Va. 299, 534 S.E. 2d 736 (2000); Mortarino v. Consultant Eng’g Servs., Inc., 251 Va. 289, 467 S.E. 2d 778 (1996).” Drewery v. City of Roanoke, 63 Va. Cir. 609, 619 (Roanoke Sep. 7, 2001). Kole v. City of Chesapeake, 247 Va. 51 (1994); XL Specialty Ins. Co. v. Commonwealth, 47 Va. App. 424 (2006); and Dirtselis v. Dirtselis, 2005 Va. App. LEXIS 451 (Nov. 8, 2005). The Supreme Court of Virginia and the Court of Appeals of Virginia regularly have reversed and remanded for denial of leave to amend. E.g., Peterson, 260 Va. at 303-304; Mortarino, 251 Va. at 295-296; Kole, 247 Va. at 57; XL, 47 Va. App. at 437-438; and Dirtselis, 205 Va. App. LEXIS 451 at *11-14. Unlike the judge in the Arshan medical malpractice hearing, the circuit court in Mortarino properly had sustained a demurrer, but “abused its discretion in failing to allow the filing of the amended motion for judgment”. 251 Va. at 296.

In Booher v. Botetourt County Board of Supervisors, 65 Va. Cir. 53, 59-61 (Botetourt Apr. 29, 2004), Defendants variously opposed the motion for leave to amend on grounds of it being unseasonable, the movant not showing it would not be futile, and the movant not having tendered the proposed amendment. But the court found no untimeliness despite months having past since initial filing, where there was no trial date or discovery. Id. at 60. Next the court in Booher rejected the futility assertion: “There is no technical burden upon a party seeking leave to amend to demonstrate that the amendment will not be futile. Nothing within the Rules of Virginia’s jurisprudence calls for such a showing.” Id. Then the Court held that although producing the proposed amendment at hearing “may be preferable and is often done, it is not required.” Id. Finally, Booher observed that the burden instead was on defendant opposing the Motion, who could not show undue prejudice. Id. at 61. When asked in the Arshan wrongful death argument, Defendants could not articular any undue prejudice.

Although Plaintiff’s amendment in the Arshan medical malpractice proceeding certainly reflects very badly on Plotnick Defendants, as did the 2007 record alteration/fraud allegations against Riverside Hospital in Seibert, supra, they are not unduly prejudicial to them. Like Riverside Hospital, Plotnick Defendants have nobody to blame for their underlying misconduct or their discovery misconduct besides themselves.

The Arshan wrongful death lawsuit granting amendment is “in furtherance of the ends of justice,” as mandated. Denial of amendment denies justice.

On September 24, 2012, The Wall Street Journal (www.wsj.com) headlined “How to Stop Hospitals from Killing Us,” subtitled: “Medical errors kill enough people to fill four jumbo jets a week. A surgeon with five simple ways to make health care safer.” Authored by a doctor who trained as a surgeon at one of Harvard Medical School’s prestigious affiliated teaching hospitals, is a surgeon at Johns Hopkins hospital, and developed the surgical checklists adopted by the World Health Organization; the article exposes rampant medical malpractice - and doctors’ unspoken “code of silence” about it.

Dr. Makary elucidates that doctors “absorb another unspoken rule: to overlook the mistakes of our colleagues.” The undeniable national statistics of medical malpractice are scary: U.S. surgeons operate on the wrong body part 40 times per week, 25% of all hospital patients are victims of medical errors, and medical errors are the 6th leading cause of death in the U.S. (with 98,000 wrongful deaths annually)!

Dr. Makary recounts medical residents joke about, and institutions protect, charming “Dr. Hodad” - whose fictive last name is acronym for Dr. “Hands of Death and Destruction”. Hence the author advocates 5 “relatively simple - but crucial - reforms” to minimize medical malpractice: (1) Online Dashboards; (2) Safety Culture Scores; (3) Cameras; (4) Open Notes; and (5) No More Gagging.

On September 21, 2012, Mr. Waterman filed Plaintiff’s Memorandum in Opposition to Defendants’ Demurrers and to Defendants’ Motion to Strike, plus lodged Amended Complaint with Exhibits, in Arshan v. Stephen E. Plotnick, M.D., et al., No. CL11-1316 in Circuit Court for the City of Williamsburg and James City County, Virginia. The underlying Demurrers and Motion, Memo, and Amended Complaint concern Plaintiff’s medical malpractice claim.

Plaintiff “correctly notes that the independent tort of negligent retention is recognized in Virginia.” Niese v. City of Alexandria, 264 Va. 230, 240 (2002). “[T]his cause of action is based on the principle that an employer…is subject to liability for harm resulting from the employer’s negligence in retaining a dangerous employee who the employer knew or should have known was dangerous and likely to harm [patients],” Southeast Apartments Mgmt., Inc. v. Jackman, 257 Va. 256, 260 (1999)(emphasis added), as Plaintiff’s Amended Complaint in the Arshan wrongful death suit alleges.

As authority for negligent retention, Southeast Apartments relies upon Phillip Morris, Inc. v. Emerson, 235 Va. 380, 401 (1988). Significantly, Philip Morris holds liability for “one who negligently retains an incompetent independent contractor,” 235 Va. at 401 (emphasis added); which Dr. Plotnick may be in the Arshan wrongful death lawsuit.

Any employer, even a charitable organization, is liable “for the negligent of its employees if it fails to exercise ordinary care in the selection and retention of those employees.” Infant C. v. Boy Scouts of America, Inc., 239 Va. 572 (1990)(citing J . . . v. Victory Tabernacle Baptist Church, 236 Va. 206, 208 (1988); Hill v. Memorial Hosp., Inc., 204 Va. 501, 507 (1963); Memorial Hosp. v. Oakes, Adm’x., 200 Va. 878, 885, 108 S.E.2d 388, 393 (1959); Norfolk Prot. Hospital v. Plunkett, 162 Va. 151, 153 (1934); and Weston’s Adm’x. v. St. Vincent, etc., 131 Va. 587, 610 (1921)). Importantly, that includes a closely-held healthcare entity being liable for negligent retention of a doctor, Hazzis v. Modjadidi, 69 Va. Cir. 385, 390-391 (Norfolk Dec. 19, 2005); such as the PLLC in the Arshan medical malpractice lawsuit being liable for alleged negligent retention of Dr. Plotnick.

Numerous Virginia Circuit Courts have permitted negligent retention claims to go forward. E.g., Hazzis (medical malpractice), supra; Gray v. Rhoads, 55 Va. Cir. 362, 377-378 (Charlottesville Jul. 2, 2001); Flanary v. Roanoke Valley Soc’y for the Prevention of Cruelty to Animals, 53 Va. Cir. 134, 135 (Roanoke Jun. 26, 2000); Courtney v. Ross Stores, Inc., 45 Va. Cir. 429, 431-432 (Fairfax May 1, 1998); Tremel v. Reid, 45 Va. Cir. 364, 383-385 (Albemarle Apr. 20, 1998); Berry v. Scott & Stringfellow, 45 Va. Cir. 240, 244-247 (Norfolk Mar 27, 1998); and Johnson-Kendrick v. Sears, Roebuck & Co., 39 Va. Cir. 314, 319-321 (Norfolk May 31, 1996). In fact, this Honorable Court was one of the earliest ones to do so. Doe v. Bruton Parish Church, 42 Va. Cir. 467, 481-482 (Williamsburg/James City County Jul. 10, 1997).

Sitting in this Honorable Court by special designation of the Virginia Supreme Court in Doe v. Bruton Parish Church, Justice Lemons pronounced: “Based upon what is alleged in the pleadings, the factual basis for the claim of negligent retention appears weak but it is sufficient to withstand demurrer.” Id. at 482. In Flanary, supra, a single prior complaint sufficed as “actual notice” to support a negligent retention claim, while in the Arshan wrongful death case Plaintiff alleges actual notice of multiple prior complaints and incidents. 53 Ca. Cir. at 135. See also, Berry, supra, 45 Va. Cir. at 247 (plaintiff’s factual allegations “indicate that the [corporate defendant] had actual notice of [the individual defendant’s] propensity”).

Federal Courts likewise have upheld negligent retention claims under Virginia law. E.g., Blair v. Defender Servs., Inc., 386 F.3d 623, 629-630 (4th Cir. 2004)(Virginia law); Thompson v. Town of Front Royal, 117 F.Supp.2d 522, 531-532 (W.D.Va. Oct. 3, 2000)(Virginia law); and Call v. Shaw Jewellers d/b/a Sterling, Inc., 1999 U.S. Dist. LEXIS 636, *4-5 (E.D.Va. Jan. 7, 1999)(Virginia law). The Fourth Circuit in Blair reversed dismissal of a negligent retention claim, 386 F.3d at 629-630; while notably the Eastern District in Call also ordered discovery on the negligent retention claim. 1999 U.S. Dist. LEXIS 636, *5-7.

On September 19, 2012, The Virginia Gazette headlined “No alarms alerted that patient fell,” and subheadlined “Chart was allegedly ‘laundered’”. The article covers the $4,500,000.00 medical malpractice suit, William M. Snovell, Executor of the Estate of Bernadette Teresa Connelly Snovell, Deceased v. Williamsburg Facility Operations, LLC, et al., Case No.: CL12004966, in the Circuit Court for York County, Virginia.

As the Snovell lawsuit and The Virginia Gazette article recount, the patient was “high-risk” for falling and allegedly should have had the benefit of a bed alarm as protection against falling. Yet she was not provided a bed alarm by Consulate Health Care of Williamsburg, predictably suffered a patient fall, and fortuitously was heard yelling for help by a visitor (not by Consulate Health Care nurses).

As the Snovell lawsuit and The Virginia Gazette also state, the patient suffered multiple rib fractures and a serious lung injury; but Consulate Health Care nurses simply put the patient back to bed, charted “fall without injury” that night and charted “no pain or discomfort” the next morning. In truth, however, the patient was complaining of severe pain, but was not rushed to the Emergency Room at Sentara Williamsburg Regional Medical Center until the following afternoon, and suffered allegedly wrongful death days later.

The Virginia Gazette quoted Mr. Waterman in Snovell: patient “falls are a chronic problem at nursing facilities and most are predictable and avoidable. He added that some manufacturers even build bed alarms . . . into hospital beds.” Id. at 12A.

Mr. Waterman has been a legal pioneer in Virginia patient falls, handling such cases for two decades. His 2005 $1,650,000.00 jury verdict for a patient fall victim in Newport News was upheld by the Virginia Supreme Court in Riverside v. Johnson, 272 Va. 518 (2006).

The monthly magazine of the American Association for Justice (“AAJ”), Trial, features in its September 2012 issue a medical malpractice article entitled “10 Red Flags in General Surgical Malpractice Cases”. It recommends considering the following topics in evaluating a surgical case for the source, diagnosis, and treatment of postoperative infections and other complications: CBC abnormalities, postoperative radiographs, biliary anatomy abnormalities, postoperative ileus, atypical operative durations, abscess or infection, OR returns, hospital returns, abnormal postoperative pain, and pathology. Id. at 40-45.

September 2012 Trial also features “Doubling Time in Delay-in-Diagnosis Cancer Cases”. The article recommends challenging the following defense theories in a medical malpractice case: assumption of a constant growth rate, heterogeneity in tumor doubling time, variability in estimates of mean doubling time, measurement error in tumor volume, tumor composition, lack of routine use in clinical practice, and persuasiveness of the theory. Id. at 34-38.

The September 2012 issue of Trial highlights “Science and the Law,” including nanotechnology and medical malpractice. Trial is the monthly magazine of the American Association for Justice (“AAJ”), formerly the American Trial Lawyers Association, of which Mr. Waterman has been a member for over two decades.

A feature article is “Defense Expert Distortious”. Id. at 22-25. It follows a legal book updated in 2012 - Exposing Deceptive Defense Doctors - that counsels about misrepresented science, misstated credentials, and other deceptive practices of medical doctors and other experts hired by Defendants.