Virginia Injury Attorney Blog

A cornerstone of Plaintiff’s medical malpractice claim in Burrell v. Riverside Hosp., Inc., No. CL11-01633F-15 in Circuit Court for the City of Newport News, Virginia, is Riverside’s failure to use a “bed alarm” for the high fall risk patient. Use of a “bed alarm” is one of the relevant medical procedures per Plaintiff’s specific allegation in her Complaint at Paragraph 11 (B and C); specific itemizations in her Expert Designations; and repeated specifications in her experts’ depositions, including particularly that use of a “bed alarm” was the necessary first step preceding use of a sitter and/or restraint.

For the 2000 patient fall in Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2005), Riverside similarly resorted to a nursing expert who claimed very limited exposure to “bed alarms,” toward undercutting them as standard of care: according to Nurse Vickers, her supposed “limited personal experience with bed alarms was [her] hospital finally getting around to trying [portable] bed alarms,” which “might have been in 1999”. Appeal Appendix at 2859. But Plaintiff successfully moved in limine to limit Vickers’ testimony because she thereby was “not qualified to testify on bed alarms”.

“The Estate argued that because Vickers had not had experience in activating bed alarms, she did not fulfill the active clinical practice requirement for a testifying expert. Code §8.01-581.20,” recounted the Virginia Supreme Court in the 2006 Riverside v. Johnson patient fall appeal. The trial court agreed with the Estate and allowed Vickers to testify about fall-risk assessment and fall-risk intervention measures other than bed alarms.” Id. at 534.

At deposition in the current Burrell v. Riverside case, Nurse Willersdorf, who has worked full-time at VCU/MCV for decades, testified that VCU/MCV in general and her Orthopaedic and its other units in particular (except possibly for its ICU) had no “bed alarms” until 2009. Hence by her own account, Nurse Willersdorf has not had any “active clinical practice” in “bed alarms” anywhere close to 1 year of Riverside’s 2006 medical malpractice.

As Johnson briefed to the Virginia Supreme Court in Riverside patient fall case, this Court determines “whether a proffered expert witness satisfies the active clinical practice requirement by referring to the ‘relevant medical procedure’ at issue in a case.” Hinkley v. Koehler, 269 Va. 82, 89 (2005)(citing §8.01-581.20). “‘Actual performance of the procedures at issue’ must be read in the context of the actions by which the defendant is alleged to have deviated from the standard of care.” Id. (emphasis added).

If a proffered expert has an active clinical practice in most, but not all, of the procedures at issue within one year of the duty breaches, a motion to disqualify as to the unproven procedure should be sustained before medical malpractice trial. Hartman v. Kleiner, 69 Va. Cir. 246 (2005). “The question whether a witness is qualified to testify as an expert is ‘largely within the sound discretion of the trial court’. * * * A decision to exclude a proffered expert opinion will be reversed on appeal only when it appears clearly that the witness was qualified.” Perdieu v. Blackstone Family Practice Ctr., Inc., 264 Va. 408, 418 (2002)(emphasis added).

Since the landmark Riverside v. Johnson decision, Virginia Supreme Court and Federal Court alike have reaffirmed the “active clinical practice” requirement. E.g., Workman v. Baker, 2010 U.S. Dist. LEXIS 110022 (W.D.Va. Oct. 13, 2010)(Virginia law); Jackson v. Qureshi, 277 Va. 114, 124-125 (2009); and Lloyd v. Kime, 275 Va. 98, 110-111 (2008). That disqualifies Nurse Willersdorf from testifying vis-à-vis “bed alarms” in the pending Burrell v. Riverside patient fall lawsuit.

Lloyd reiterated: “The purpose of the requirement in §8.01-581.20 that an expert have an active practice…is to prevent testimony by an individual who has not recently engaged in the actual performance of the procedures at issue;” and “[T]he term ‘actual performance of the procedures at issue’ must be read in the context of the actions by which the defendant is alleged to have deviated from the standard of care.” 275 Va. at 110 (emphasis added). The Lloyd medical malpractice opinion affirmed that plaintiff’s expert “was not qualified to testify as an expert witness on standard of care as to Lloyd’s allegation of intraoperative negligence” because the expert had “no active clinical practice in performing spinal surgery”; despite him being qualified “as to Lloyd’s allegation of postoperative negligence”. Id. at 111.

Jackson emphasized that de minimis clinical practice of a procedure at issue does not satisfy the medical malpractice requirement of “active”: “Certainly, there may be instances when the expert’s clinical practice with regard to the medical procedure at issue is so de minimis that the witness would not meet the ‘active clinical practice’ requirement.” 277 Va. at 125. In Jackson, plaintiff’s expert performing the same sole procedure at issue in “’very similar’ clinical settings” satisfied the requirement. Id. at 124-125.

Applying Virginia medical malpractice law in Workman, United States District Court observed that it looks “both to plaintiff’s pleadings and to the allegations in her motion for judgment in order to determine that ‘the acts [plaintiff] claims form the basis of her action and violate the standard of care are medical procedures applicable’;” and that “[s]imply because the expert may be qualified to testify with regard to a medical procedure that is potentially relevant to the case at hand but not actually in dispute between the parties does not grant the court license to declare his competence on the issue.” 2010 U.S.Dist. LEXIS 110022, *18-19 (emphasis added). Workman rejected plaintiff’s argument that the particular medical procedure at issue “should be construed more broadly,” where plaintiff (like Plaintiff at bar) “targets the performance of the specific procedure, not just the general procedure which is inclusive of the specific” and, moreover, establishes a “significant medical distinction.” Id. at *20-27.

On October 25, 2012, Mr. Waterman settled a car accident claim for personal injuries of his client without having to file suit. The two-car collision occurred on Lightfoot Road in Williamsburg, Virginia, and involved residents of Toano and James City County.

The car crash victim was taken by ambulance to the Emergency Room at Sentara Williamsburg Regional Medical Center. The victim was treated by Williamsburg Emergency Physician, Tidewater Diagnostic Imaging, Ltd., Tidewater Physicians Multispecialty Group, and Sentara Medical Group.

On October 15, 2012, Mr. Waterman filed Plaintiff’s Reply Memorandum in Shirley Frazier Burrell v. Riverside Hospital, Inc. and Nurse M. Ames, No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia. Plaintiff victim in Burrell suffered a broken hip and disabling stroke following a patient fall at Riverside.

By her underlying Motion to Compel, Plaintiff seeks to depose Riverside through its most knowledgeable persons to identify the bed alarm and soft restraints customarily used by Riverside for its nursing orientation, nursing preceptorships, nursing in-services, nursing NetLearning and computer-based learning, and nursing schools as safety interventions to protect high-risk patients from falling. Plaintiff in Burrell seeks $10,350,000.00 in damages for Riverside’s alleged medical malpractice.

On October 11, 2012, Mr. Waterman filed and noticed Plaintiff’s Plea of Law of the Case, Res Judicata, and Estoppel in the brain injury case of Gregory J. Gagnon v. Travis Burns, No. CL08-572 in the Circuit Court for Gloucester County, Virginia. His Reply Memorandum filed contemporaneously distinguished all cases cited by the opposition.

Burns’ core case in the Gagnon brain injury lawsuit is Nassif v. Board of Supervisors, 231 Va. 472 (1986), which along with its cited progeny, Baumann v. Capozio, 269 Va. 356 (2005); Ford Motor Co. v. Jones, 266 Va. 404 (2003); and Virginia Elec. and Power Co. v. Westmoreland-LG&E Partners, 259 Va. 319 (2000) [“VEPCO”]; is distinguishable on multiple independent grounds. Lockheed Info. Mgmt. Sys. v. Maximus, Inc., 259 Va. 92, 106-108 (2000), which Burns minimizes, instead is more on point and controlling.

Contrary to the Gagnon brain injury suit, however, in Nassif: (1) the Defendant was victor at trial and Appellee on appeal not [liability] loser at trial and Appellant on appeal; (2) Judgment was not also entered against Co-Defendants on common issues of liability, which nobody appealed; (3) the remand was not expressly “limited”; and (4) the “law of the case” was not raised.

"The Nassif case, at most, stands for the proposition that an appellee does not have to assign cross-error to the failure of the trial court to address additional arguments in order to reassert those arguments on remand. It does not, and cannot, stand for the proposition asserted by [the loser at trial], that an appellant [like Burns] does not have to assign error to a ruling disposing of a cause of action, and if the case is remanded, can then relitigate a dispositive ruling which was not appealed. Such a proposition contradicts the doctrine of the law of the case which provides that where no assignment of error or cross-error is taken to a part of a final judgment, the judgment becomes the law of the case and is not subject to relitigation. Searles’ Adm’r v. Gordon’s Adm’r, 156 Va. 289, 294-99, 157 S.E. 759, 761-62 (1931)."

Lockheed, 259 Va. at 108 (italics in original)(underlining added)(“trial court erred in denying Lockheeds’ motion for summary judgment on its [‘law of the case’] claim”).

VEPCO, Ford and Baumann all follow Nassif and likewise are distinguishable. Like Nassif and unlike Burns, VEPCO involved only a single defendant, not Co-Defendants against whom Judgment was entered on common issues that were unappealed and are final as in the Gagnon brain injury proceedings. Also like Nassif and unlike Burns, VEPCO’s remand was not “limited”.

Indeed, quoting Nassif, VEPCO emphasized that “when we limit issues on remand we do so with words of limitation or restriction,” 259 Va. at 323 (emphasis added); and accordingly that “consideration…on remand” in VEPCO was not limited because of the “absence of such limitations” in the Virginia Supreme Court’s opinion and order. Conversely, the Gagnon brain injury action is expressly “limited” remand to new trial on “Gagnon’s gross negligence claim against Burns” - thereby leaving intact and final as the “law of the case” Gagnon’s battery claim against James, Gagnon’s simple negligence claim against Christine, and Gagnon’s simple negligence claim against Burns, including all defenses against Gagnon necessarily and actually decided, unappealed, and final.

Like Nassif, Ford involved a single defendant, not Co-Defendants against whom Judgments on common issues was entered, went unappealed and are final as in the Gagnon brain injury matter. Also like Nassif, Ford remand was not expressly “limited” as in Gagnon. [BUT SEE 263 Va. 237, 263-264]. More particularly, Ford focused on and upheld plaintiff taking a nonsuit after remand, so it specifically is in the context of that unique situation the Virginia Supreme Court observed: “After a reversal of a circuit court’s judgment and remand for a new trial, the litigants are restored to their original rights as though no previous trial had occurred, including the right to dismiss or nonsuit a case.” 266 Va. at 407.

Moreover, citing Lockheed, Ford materially qualified the foregoing principle by noting exceptions which control the Gagnon brain injury remand: “Of course, this principle does not apply to issues which, under the ‘law of the case’ doctrine, are not subject to relitigation, see, Lockheed Info. Mgmt. Systems v. Maximus, Inc., 259 Va. 92, 108, 524 S.E. 2d 420, 429 (2000), or to parties and claims already dismissed with prejudice, or otherwise eliminated from a case, prior to a nonsuit, see Dalloul, 255 Va. at 514, 499 S.E.2d at 281.” Id. (emphasis added). At 2 of his Brief, Burns cites Dalloul v. Agbey, 255 Va. 511, 514 (1998) gratuitously, out of context.

Like Nassif and unlike the Gagnon brain injury case, Baumann involved one defendant, not Co-Defendants against whom Judgment were taken and not appealed on common issues. Also like Nassif and unlike Gagnon, Baumann involved the liability victor at trial and Appellee on appeal, not a liability loser at trial and Appellant on appeal like Burns.

Hence under materially distinguishable facts, Baumann (unlike Burns) correctly cites Nassif for the proposition that its particular defendant on “remand…may assert those defenses”. 269 Va. at 361. As Lockheed delineates, however, Nassif “at most” covers a liability “appellee” not liability “appellant” like Burns, 259 Va. at 108. See, supra; plus Nassif (and Baumann) does not apply where as in the Gagnon brain injury action Judgments were entered on common issues, were not appealed, and are final.

Burns’ citation of Evans v. Evans, 280 Va. 76, 84 (2010) is strictly for a general discussion of the “doctrine of negligence per se”. Substantively, Evans does not support negligence per se going to the jury on “limited” remand under the controlling “law of the case” in the Gagnon brain injury retrial.

Gagnon emphasizes, “The ‘law of the case’ doctrine applies both to issues that were actually decided by the court, and to issues ‘necessarily involved in the first appeal, whether actually adjudicated or not’.” Miller-Jenkins v. Miller-Jenkins, 276 Va. 19, 26 (2008)(emphasis added). See also, The Partnership Umbrella, Inc. v. Federal Ins. Co., 260 Va. 123, 132 n. 5 (holding that failure to assign error on appeal “prevents relitigation of these issues on remand as they are now ‘law of the case’. Lockheed”). The assault and battery of James, the simple negligence of Christine, the simple negligence of Burns, and the contributory negligence, provocation and other supposed fault of crime victim Gagnon were in fact raised, decided, unappealed, and final by the first trial and appeal in Gagnon - hence Burns’ current ostensible fault variants vis-à-vis were “necessarily involved,” even if arguendo not “actually adjudicated” - by the “law of the case” doctrine, so cannot be relitigated, on limited remand no less.

In summary:

1. The Virginia Supreme Court in VEPCO citing Nassif pronounced “when we limit issues on remand we do so with words of limitation or restriction,” 259 Va. at 323; and the Gagnon brain injury lawsuit violates the same if it ignores the mandate that “new trial [is] limited to Gagnon’s gross negligence claim against Burns,” Burns v. Gagnon, 283 Va. 657 (2012)(emphasis added), by relitigating Gagnon’s simple negligence claim against Christine, Gagnon’s simple negligence claim against Burns and/or Gagnon’s intentional tort claim against James, or any issues thereof;

2. The Virginia Supreme Court in Ford citing Lockheed pronounced the “principle [that ‘after a reversal of a circuit court’s judgment and remand for a new trial, the litigants are restored to their original rights as though no previous trial had occurred,’] does not apply to issues which, under the ‘law of the case’ doctrine, are not subject to relitigation,” 266 Va. at 407 (emphasis added); so the Gagnon brain injury suit violates the same if it ignores that the “law of the case” doctrine controls; and

3. The Virginia Supreme Court has pronounced in Miller-Jenkins that “the ‘law of the case’ doctrine applies both to issues that were actually decided by the court, and also to issues ‘necessarily involved in the first appeal, whether actually adjudicated or not’,” 276 Va. at 26 (emphasis added); so the Gagnon brain injury remand violates the same if it ignores that James’ assault and battery, Christine’s simple negligence, Burns’ simple negligence, and all fault and defenses vis-à-vis Gagnon already have been involved and decided and cannot be relitigated on remand - remand being limited to deciding “gross negligence”.

In the brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, Assistant Principal Burns at his leisure typed up 3 different revised accounts of what transpired: (1) Narrative on Gregory Gagnon, B-2 to B-5; (2) Narrative on Gregory Gagnon, B-6 to B-9; and (3) Statement on December 14, 2006, Greg Gagnon incident [February 14, 2008]. B-10 to B-14. His 3 accounts comprise Exhibit 1 of Defendant Burns’ deposition on April 30, 2009.

Va. Code. Ann. 8.01-404 admittedly prohibits the use of certain prior written statements to contradict a witness. Yet the Gagnon brain injury victim relies upon recent Virginia Supreme Court interpretations of §8.01-404, which actually uphold other use and even introduction of such prior witness statements at trial. E.g., Ruhlin v. Samaan, 282 Va. 371, 378-380 (2011); Gray v. Rhoads, 268 Va. 81, 88-90 (2004).

Gray indisputably upheld the introduction of prior transcribed witness statements as “party admissions in the plaintiff’s case-in-chief” - there being “an important distinction between a party admission and a prior statement used to impeach a witness’ present testimony”. 268 Va. at 88-90 (emphasis added). While the Gagnon brain injury case was on appeal last year, Ruhlin reaffirmed Gray and even upheld using a prior transcribed statement to “refresh recollection” of a party - “the act of refreshing a witness’s recollection does not involve contradicting that witness’s testimony”. 282 Va. at 378-380 (emphasis added).

Under authority of Gray, as proof of gross negligence on remand, the Gagnon crime victim definitely requests to introduce Burns’ 3 accounts “as party admissions in the plaintiff’s case-in-chief”. Under authority of Ruhlin, Gagnon also may request to use any or all of Burns’ 3 accounts for the “act of refreshing a witness’s recollection”.

As Ruhlin explains, §8.01-404 “does not…‘prohibit the proof of prior inconsistent statements by oral testimony,’ even when such statements were reduced to writing and signed by the witness”. 282 Va. at 378. Given the multiple inconsistencies in Burns’ statements on the core gross negligence matter of what Burns knew, thought, did, and didn’t do during the 2 hour window after Diaz warned him but before Gagnon was battered, denying admission and use of this unique evidence to the Gagnon brain injury victim is reversible error under Gray and Ruhlin.

On April 4, 2012, the Circuit Court for Rockingham County, Virginia, followed the Virginia Supreme Court’s controlling decisions in Gray and Ruhlin, just as the crime victim in Gagnon seeks Gloucester Circuit Court to do. “Based on the case law discussed above, and what is currently before the Court, the Court does not find sufficient basis to exclude the recorded statement at issue in this case,” concluded Judge Lane in Richards v. Reed, 2012, Va. Cir. LEXIS 33, *6 (Rockingham Apr. 4, 2010). “While there are limitations on how the recorded statement can be used at trial, the Court will not exclude the recorded statement at this time. The parties may object during trial should any part attempt to use the recorded statement in an impermissible manner.” Id. at *6-7. Richards also denied to Motion to Sever filed by the statement’s maker. Id.

On October 4, 2012, Riverside Hospital, Inc. brought two Motions on for “emergency” telephonic hearing before the Judge in the patient fall case of Shirley Frazier Burrell v. Riverside Hospital, Inc. and Nurse M. Ames, No. CL11-1633 in the Circuit Court for the City of Newport News, Virginia. They were not well-founded, and Mr. Waterman prevailed on both Motions.

The Judge denied Riverside’s Motion to interpose one of its retained experts into Plaintiff’s case-in-chief. Riverside withdrew its other Motion to confine Plaintiff’s case-in-chief to the first week of the two-week Burrell medical malpractice jury trial, which is scheduled from November 26-December 7, 2012.

The patient fall victim in Burrell seeks $10,350,000 in damages for the broken leg and permanent debilitating stroke she sustained while under the care of Riverside and its nurses. In 2005, Mr. Waterman secured a $1,650,000 jury verdict against Riverside in another patient fall case in the same Court, which the Virginia Supreme Court upheld in Riverside v. Johnson, 272 Va. 518 (2006).

The Virginia Supreme Court remanded Mr. Waterman’s brain injury case to Circuit Court for Gloucester County, Virginia, “for a new trial limited to Gagnon’s gross negligence claim against Burns,” Burns v. Gagnon, 2012 Va. LEXIS 93, *40 (Apr. 20, 2012). But the parties have disagreed over the scope of retrial.

“Pursuant to the ‘law of the case’ doctrine, when a party fails to challenge a decision rendered by a court at one stage of litigation, that party is deemed to have waived her right to challenge that same decision during the later stages of the ‘same litigation’.” Miller-Jenkins v. Miller-Jenkins, 276 Va. 19, 26 (2008). “The ‘law of the case’ doctrine applies both to issues that were actually decided by the court, and also to issues ‘necessarily involved in the first appeal, whether actually adjudicated or not’.” Id.

“Our decisions applying the ‘law of the case’ doctrine generally have involved litigation that has proceeded in a ‘linear’ sequence to trial, appeal, trial on remand, and second appeal, all under the same set of pleadings, see, e.g., Lockheed Info. Mgmt. Sys. Co. v. Maximus, Inc., 259 Va. 92, 108, 524 S.E.2d 420, 429 (2000)(stating that issue decided in first case and not appealed was not subject to relitigation on remand); Kemp, 160 Va. at 284, 168 S.E. at 431 (holding that issues decided on appeal were binding law of case on remand),” observes Miller-Jenkins, 276 Va. at 26. “However, we have never limited that ‘law of the case’ doctrine to litigation that occurs in such sequential fashion under one set of pleadings.” id.; evincing the doctrine’s applicability to the Gagnon brain injury litigation.

“In our decision in Kondaurov, we explains that our application of the ‘law of the case’ doctrine extends to ‘future states or the same litigation’,” explained Miller-Jenkins. “Thus, when two cases involve identical parties and issues, and one case has been resolved finally on appeal, we will not re-examine the merit of issues necessarily involved in the first appeal, because those issues have been resolved as part of the ‘same litigation’ and have become the ‘law of the case’.” Id. at 26-27.

“The mandate rule, itself an application of the law-of-the-case doctrine, forecloses further litigation of issues expressly of impliedly decided by the appellate court’,” Virginia Imports, Ltd. v. Kirin Brewery of America, LLC, 50 Va. App. 395, 407 (2007); “and relitigation of matters addressed by the trial court, but not addressed on appeal.” West v. West, 59 Va. App. 225, 233 (2011). Potentially significant to the Gagnon brain injury lawsuit, “[t]he refusal of the trial court to follow the appellate court mandate constitutes reversible error”. Virginia Imports, 50 Va. App. at 207.

Finally, for example, the Gagnon crime victim avers Defendant Burns “is bound by his agreement to the jury instructions given to the jury as the law of the case.” Ulloa v. QSP, Inc., 271 Va. 72, 80 (2006). “An instruction given without objection will not be disturbed on appeal, Rule 5:25, and becomes the law of the case, governing all subsequent proceedings.” Kondaurov v. Kerdash, 271 Va. 646, 658 (2006).

Additionally, collateral estoppel is “the preclusive effect impacting in a subsequent action based upon a collateral and different cause of action. In the subsequent action, the parties and their privies are precluded by litigation any issue of fact actually litigated and essential to a valid and final judgment personal judgment in the first action.” Lofton Ridge, LLC v. Norfolk So. Ry Co., 268 Va. 377, 381 (2004)(emphasis in original). It is analogous to the Gagnon brain injury action.

Again, the damage awards were not appealed and, moreover, damages in this case are “distinctly separable” from the limited liability issue of gross negligence. Cf., Chappell v. White, 184 Va. 810 (1946). Thus, the Gagnon brain injury victim argues that all damages awarded are the “law of the case” on limited retrial. See, Northwestern Elec. Power Co-operative v. Am. Motorists Ins. Co.,451 S.W.2d 356 (Mo. Ct. App. 1969).