Virginia Injury Attorney Blog

The Trial Lawyer, a magazine for trial lawyers and a voice for justice, features an article concerning brain injury. It is “Pradaxa: The Less Effective, More Dangerous Alternative to Coumadin.” The subheading is, “Pradaxa is revealing itself as less effective and disturbingly more dangerous than advertised.” Id. at 133.

Pradaxa presents the special case of product liability litigation against a national pharmaceutical drug manufacturer. “A second explanation for the severity and number of the adverse events is the fact that, unlike Coumadin, Pradaxa has no reversal agent or ‘antidote’.” Id. at 134.

On November 9, 2012, Circuit Court for Gloucester County, Virginia, denied the written Motion of American Home Assurance Company to substitute for it a related insurer, Illinois National Insurance Co.; and instead accepted Mr. Waterman's opposition argument that Illinois National simply should be added to the vehicle crash litigation. The personal injury case is Lyles v. Calloway, No. CL 10000070.

For the Enterprise company truck being driven by Plaintiff, Illinois National issued Plaintiff's employer a $1,000,000.00 commercial fleet policy effective April 1, 2007, which was amended by the endorsement of American Home Assurance effective February 11, 2008, shortly before the Lyles vehicle collision in Gloucester, Virginia. Plaintiff also has $50,000.00 of underinsured motorist ("UIM") coverage through his own personal auto insurer, Progressive Gulf Insurance Co.

Liability is apparent and Plaintiff's vehicle accident-related past medical expenses already exceed $155,000.00. Hence the offending motorist's auto liability insurer, Victoria Insurance, already has tendered it Virginia minimum coverage limits of $25,000.00 in Lyles.

On November 12, 15 and 19, 2012, first, second and third Final Pre-Trial Conferences were held in Shirley Frazier Burrell v. Riverside Hospital Inc., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia. That lawsuit arising from a serious patient fall in 2006 finally will be tried before a jury during November 26-December 7, 2012.

At first FPTC on November 12th, the Court among other things ruled that Defendants’ expert, Nurse Willersdorf, could testify about bed alarms even though she asserts not having used any within a year of the medical malpractice alleged in Burrell. Much more significantly, the Court in Burrell followed the Virginia Supreme Court’s landmark opinion in Riverside Hospital, Inc. v. Johnson, 262 Va. 518 (2006) (“Riverside I”) and denied Defendant Riverside’s motion to exclude the “factual information of patient care” that it segregated from the patient chart in its claimed “peer review” records, including Plaintiff’s Exhibit No. 3 2/17/06 Midas “Unwitnessed Fall” Incident Report and 3/14/06 Midas “Additional Surgery” Incident Report; Plaintiff’s Exhibit No. 4, 2/16/06 Falls Abstraction Data Tool; Plaintiff’s Exhibit No. 11, 2/17/06 Procedures/ Practices Quality Care Control Report (“QCCR”); and Plaintiff’s Exhibit 30, 3/7/08 #67606 Summary Report Quality Management System (“QMS”) Printout, 6/28/06 #460610 Surgical Quality Patient Care (“QPC”) Committee Minutes, and 9/27/06 #460610 Surgical Quality Patient Care (“QPC”) Committee Minutes.

At second FPTC on November 15th, the Court in Burrell again followed the Riverside I patient fall case, overruled Riversides motion to exclude, and ruled that Plaintiff was entitled to introduce as “corroboration” of her nursing experts’ opinions that independently establish the prevailing “standard of care” (“SOC”) various materials taught to nursing students at Riverside’s own School of Health Careers, in addition to materials taught to nurses by Riverside in its hospital orientations, skills fairs, in-services, computer-based learning (“CBL”) and/or preceptorships. Those Riverside materials include, but are not limited to, Plaintiff Exhibit No. 39, 2003 nursing textbook from Riverside’s own School of Practical Nursing (L.P.N); Plaintiff’s Exhibit No. 47, 2003 nursing textbook from its own School of Professional Nursing (R.N.); Plaintiff’s Exhibit No. 33, JCAHO Prep 2004 CBL; Plaintiff Exhibit No. 36, Riverside’s “Patient Restraints,” CBL and; Plaintiff Exhibit No. 38, Riverside’s “Patient Safety Goals 2006”.

Additionally, the Court in the Burrell medical malpractice lawsuit yet again followed Riverside I, in which a Newport News jury awarded $1,600,000.00, overruled Riverside’s motion to exclude, and ruled Plaintiff also was entitled to introduce as “corroboration” of her independently-established nursing SOC opinions 3 hospital-wide policies of Riverside, 1 of which included a hospital-wide protocol. Those Riverside policies in Burrell are Plaintiff’s Exhibit 17, 4/04 Policy #01-01 “Patient Care Documentation”; Plaintiff’s Exhibit 18, 7/19/04 Policy #235 “Restraint Seclusion”; and Plaintiff’s Exhibit 19, 8/05 Policy #231 “Fall Prevention,” which includes “Risk Assessment” and “Precaution Protocol”.

Moreover, the Court in Burrell once again followed Riverside I, overruled Riverside’s motion to exclude, and held Plaintiff was entitled to introduce inter alia the incident report and Risk Manager’s testimony from Riverside I as “notice,” if improbably Plaintiff’s claim for punitive damages survives in Burrell; provided, however, that Plaintiff cannot mention punitive damages in opening, and any punitive damages evidence will not be admitted until after Plaintiff’s nursing SOC experts have testified. Plaintiff’s nursing expert testimony in Burrell is expected to be that Defendants’ alleged medical malpractice of not using a bed alarm, a sitter and/or soft restraints for the safety protection of high fall risk patient was a “wide deviation” from Virginia’s SOC, that it was “blatant” and a “no-brainer”.

Further, Riverside in Burrell was unsuccessful in trying to exclude substantial testimony of 5 Plaintiff retained experts. With little or no change, however, Nurse Cheeley of Chesterfield, Dr. Trieshmann of Hampton VA, Dr. Evans of UVA, Nurse Levin of Mass General, and Dr. Parvizi of Rothman Institute are permitted to testify at the Burrell patient fall trial as they had in their depositions.

Finally, at third FTCP on November 19th, in response to Riverside seeking “clarification” of the prior week’s medical malpractice rulings, the Court in Burrell reiterated the admissibility of Riverside’s 3 policies as “corroboration” and, subject to Plaintiff presenting a prima facie case of punitive damages, of Riverside I evidence as “notice” to Riverside. Notably the Court accepted the parties’ stipulation admitting cutting-edge NeuroQuant Analysis into evidence.

Tayloe Associates of Norfolk, Virginia (www.tayloeassociates.com) reported all 3 Final Pre-Trial Conference, plus other aspects of this patient fall case. Happy Thanksgiving!

The Richmond-based 349-lawyer 21-office law firm of LeClair Ryan, a professional corporation, is representing the Defendants in Mr. Waterman’s medical malpractice case for a patient fall victim, Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia, which is scheduled for 2-week jury trial during November 26-December 7, 2012. The law firm of LeClair Ryan also is representing Defendants in Mr. Waterman’s medical malpractice claim of patient wrongful death, Myron M. Arshan, Executor of the Estate of Sharon Lorrie Britt, Deceased v. Stephen E. Plotnick, M.D., et al., No. CL11-1316 in Circuit Court for the City of Williamsburg, Virginia, a primary Defendant of which is a doctor who lost his Virginia medical license.

On November 15, 2012, Tracy T. Hague, Esq. of LeClair Ryan served on Mr. Waterman in the Arshan wrongful death case 143 Requests for Admission plus a supplemental Interrogatory demanding details for any Request not admitted, and on November 16, 2012, she also served on him in Arshan Amended and Additional Requests for Admission; Responses and Answers to all of which are due at the end of Mr. Waterman’s trial with LeClair Ryan in Burrell. Under these disruptive circumstances, today Mr. Waterman is seeking from Ms. Hague of LeClair Ryan a 3-week extension of time to respond to her numerous discovery requests in the Arshan medical malpractice lawsuit simply to cover his 2-week jury trial in Burrell and his final pre-trial preparation during Thanksgiving holiday week beforehand; otherwise, Mr. Waterman will be forced to move the Arshan Court in Williamsburg for emergency relief, which Motion may have to be heard during his Burrell jury trial in Newport News with LeClair Ryan.

November 20, 2012, postscript: Mr. Waterman filed Plaintiff’s Motion for Extension of Time and for Emergency (Telephonic) Hearing in the Arshan wrongful death case. Shortly thereafter, Ms. Hague of LeClair Ryan agreed to the requested extension of 21 days after Mr. Waterman’s medical malpractice trial with LeClair Ryan in Burrell is scheduled to end.

On November 9, 2012, dailypress.com headlined: “Lawsuit filed in death of elderly Gloucester woman”. It reports the $4,450,000.00 medical malpractice suit filed by Mr. Waterman on November 5, 2012, Case No.: CL12000440-00 in Circuit Court for Gloucester County, Virginia, captioned Patrick Lee Cherrie, Administrator of the Estate of Gerda A Harvey, Deceased, v. Virginia Health Services, Inc., d/b/a Walter Reed Convalescent & Rehabilitation Center, Long Term Care of Tidewater, P.C. and Raina Winfrey, M.D.

The article recounts how the Defendants’ “high onto extreme” fall risk patient suffered a brain injury that proved to be fatal the 3rd time she fell in only 4 days. Defendants in Cherrie failed to give the victim the safety protection of a “bed alarm” – a highly effective pressure-sensitive system for beds and chairs – until after she suffered the fatal brain injury.

The Daily Press quoted Mr. Waterman, “It’s what they should have done previously, and not after the third [patient] fall.” Defendants in Cherrie also failed to move the victim closer to the nurse’s station after her 1st and 2nd falls.

The Daily Press notes that it was not able to get through to, or to hear back from, the corporate office of Virginia Health Services, Inc. for comment re its impending Cherrie newspaper coverage. Virginia Health Services is owner of the nursing home, Walter Reed Convalescent & Rehabilitation Services.

Defendants in the Cherrie wrongful death lawsuit have refused to turn over their complete incident reports for each of the 3 falls, providing only substantially redacted versions to the patient’s Estate Executor. Hence Mr. Waterman will issue a Subpoena Duces Tecum for the same, and seek enforcement vis-à-vis any “factual information of patient care” withheld by Virginia Health Services d/b/a Walter Reed.

In the patient fall case of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15, in Circuit Court for the City of Newport News, Virginia, Plaintiff’s orthopaedic surgeon was her attending physician during her Riverside hospital stay. He performed her initial and her repair orthopedic surgeries under general anesthesia and followed her before, during, and after the same.

That treating orthopaedic surgeon is designated as a medical malpractice expert in Burrell, in addition to what is stated in his chart entries. But Defendants do not want him telling the jury that his own “post-fall repair surgery worsened her pre-existing neurological [acute stroke] problems.”

Defendants in Burrell cite CNH Am., LLC v. Smith, 281 Va. 60, 68 (2011) and Tazewell Oil Co. v. United Virginia Bank, 243 Va. 94, 110 (1992). Both of those cases – which do not involve a medical doctor or even medical causation – are distinguishable from the particular patient fall facts at bar.

In Tazewell, the Virginia Supreme Court upheld qualification of an expert in “troubled businesses,” but not the “banking industry” with which he was not even “familiar generally”; and it is unclear whether that distinction in qualification really limited the parameters of his testimony versus simply his stature/weight before the jury. id.; which differs from what Defendants seek in the Burrell medical malpractice case. In CNH, the Court rejected an individual with only some experience in mining industry hydraulic systems testifying as manufacturing and design expert re agricultural disc mowers, where he “admitted that he was not an expert in the hydraulic systems of mowers and had no experience in the design or manufacture of mowers or any other agricultural equipment [and] lacked specific expertise in the hydraulics of disc mowers and was unfamiliar with the hydraulic system of this mower.” 281 Va. at 68.

For Defendants’ CNH quotation in Burrell (“expert’s qualifications must correlate to the opinions for which the expert is being offered”), see, Defendants’ Memorandum at 4; CNH cites as its authority, King v. Sowers, 252 Va. 71, 78 (1996). Unlike CNH or Tazewell, King actually is on point with the matter sub judice and favorable to the patient fall victim at bar, upholding a pathologist’s testimony about his radiological interpretation and rheumatological diagnosis - despite him admittedly not being an expert in the fields of radiology or rheumatology:

"Dr. Zimmerman testified that he regularly reviews CT scans, X-ray films, and other tests in evaluating tissue samples for the presence of disease. He explained that, although he has not had formal training in radiology and does not consider himself an expert in that field, he is able to read and interpret CT scans. Dr. Zimmerman further stated that, if he is unable to read a CT scan, he consults with a radiologist. However, he testified that he was able to read and interpret the CT scans of King’s eye without requesting a radiologist’s opinion. Dr. Zimmerman also indicated that, as a pathologist, he is familiar with the cellular manifestations that are characteristic of Sjogren’s syndrome.” *** We conclude that the trial court did not err in permitting Dr. Zimmerman’s testimony on these issues, since the evidence showed that he regularly evaluated CT scans in his pathology practice, and that he has skills and experience in recognizing Sjogren’s syndrome. The fact that Dr. Zimmerman did not qualify as an expert in radiology or rheumatology is relevant only to the weight to be given his testimony by the trier of fact."

Id. (citation omitted) (emphasis added).

Consistent with the patient fall position in Burrell, Lo v. Burke, 249 Va. 311, 318 (1995) and Butler v. Greenwood, 180 Va. 456, 462 (1942) uphold qualification of “orthopedic surgeon” and “general surgeon”. “[B]y the great weight of authority, a physician or surgeon is not incompetent to testify as an expert merely because he is not a specialist in the particular branch of his profession involved in the case; although this fact may be considered as affecting the weight of his testimony.” Id. (emphasis added) (“orthopedic surgeon…was permitted to answer a hypothetical question touching the brain condition of Mr. Greenwood,” who “was under the care of another doctor”).

Analogously to the medical malpractice Plaintiff in Burrell, the Lo Defendant argued “since Dr. Hall is a general surgeon and is not a radiologist or a pathologist, his opinion [that Defendant’s ‘negligence was a proximate cause of Burke’s death’] rested on mere conjecture and improperly was based on subjects on which he was not qualified to offer an expert opinion. We disagree.” 249 Va. at 318 (emphasis added). “In reaching this conclusion, we reject Dr. Lo’s argument that Dr. Hall improperly was allowed to offer opinion testimony on subjects involving radiology and pathology. Dr. Hall testified that while he is not qualified to examine pathology slides or read radiography films, the duties of a general surgeon include the review of reports of all the medical specialists involved in a case. *** Therefore, we conclude that Dr. Hall’s evaluation of pathology and radiology reports in formulating his expert opinion did not constitute improper opinion testimony.” Id. (emphasis added).

Thomas v. Builders Transp., Inc., 28 Va. Cir. 93, 95 (Amherst Apr. 3, 1992) also is on point with the Burrell patient fall victim’s position: “the fact that Dr. Rodman [a ‘family physician’ treating some patients with heart ailments,] is not a ‘cardiologist’ or cardiothoracic surgeon does not prevent him from giving an expert opinion on this issue [whether the vehicle collision caused the heart attack]. The fact that Dr. Redman may not be a member of one of these specialties only goes to the weight which the trier of fact may place on his testimony.” Id. (emphasis added).

Hollingsworth v. Norfolk So. Ry. Co., 279 Va. 360, 364 (2010) holds “a medical doctor is qualified to give expert testimony about the cause of human physical injury.” Supporting Plaintiff’s medical malpractice experts’ opinions in Burrell, the Virginia Supreme Court has “never required positive proof by scientific testing to establish a factual basis for medical diagnosis and opinion.” Bussey v. E.S.C. Restaurants, Inc., 270 Va.531, 537-538 (2005) (emphasis added)(“lay testimony is admissible to prove proximate causation” and “the lay testimony coupled with the doctor’s diagnosis was sufficient to support the jury verdict”).

Unlike the Tazewell expert who was not “familiar generally” with the banking industry or the would-be CNH expert who was not experienced with the product or its industry, Plaintiff’s treating orthopaedic surgeon in the Burrell patient fall lawsuit is very familiar and experienced with Plaintiff and her procedures/conditions at the pertinent time. Indeed, as her admitting physician, her attending physician, her orthopedic surgeon, and her prior orthopedic surgeon (for the identical procedure on the other hip in 2000), he clearly was the medical doctor most familiar, experienced and involved with Plaintiff, her procedures/conditions and various interactions during February 14-22, 2006.

In person on October 18, 2012, and by telephone on November 6, 2012, the Court heard Plaintiff’s Motion to Enforce Subpoenas Duces Tecum, VCU Health System’s Objections and Response to Subpoena Duces Tecum, and Defendants’ Motion to Quash Subpoenae Duces Tecum in the patient fall lawsuit of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., CL1601633F-15 in Circuit Court for the City of Newport News, Virginia. It made two rulings favorable to Mr. Waterman’s client.

First, the Burrell Court ordered, pursuant to Va. Sup. Ct. R. 4:5(b)(4)(A)(iii), that medical malpractice Defendants’ expert, Nurse Janet Willersdorf (who claimed that MCV/VCU’s Orthopaedic Unit did not have any “bed alarms” until 2009), had to respond to Sections I (B) and II (D) of her Subpoena Duces Tecum as modified to “bed alarms/alerts”. Second, the Court ordered pursuant to Va. Sup. Ct. R. 4:9(A) that non-party, VCU Health System, had to respond to Section D of its Subpoena Duces Tecum as modified to “bed alarms/alerts,” but only with responsive materials applicable to its Orthopaedic units on an individual and/or hospital-wide basis, i.e., MCV/VCU’s 10-page hospital-wide Fall Prevention Policy/Falling Star Protocol and its 6 pages of orientation training text booklets from its Orthopaedic Unit employee files.

MCV/VCU’s hospital-wide Fall Prevention Policy/Falling Star Protocol was effective in 2003 into at least 2006. Notably, it references use of “bed alarms” for high risk individuals to avoid having patient fall victims.

At discovery hearing on November 5, 2012, the Circuit Court for the City of Newport News, Virginia, granted the patient fall victim’s Motion to Compel against Defendant, Riverside Hospital, Inc., in Shirley F. Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15. Since August, 2012, Riverside had resisted tendering for Va. Sup. Ct. Rule 4:5(b)(6) deposition its corporate representatives most knowledgeable about exemplar bed with bed-alarm, posey-vest, and wrist restraint.

The disabled medical malpractice Plaintiff in Burrell seeks $10,350,000.00 in damages for Riverside’s alleged failure to assess and intervene properly for the high fall risk patient. Two-week jury trial is scheduled to begin November 26, 2012.

In Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia, the patient fall victim suffered broken femur, head injury, and disabling stroke due to allegedly substandard fall risk assessment and intervention by her nurses at Riverside Regional Medical Center. Pre-trial, Riverside moves to keep from the jury the fact that it wrote off the portion of its billing that Tricare refused to cover because of it suspected third-party (Riverside) liability - which write-off under the circumstances the patient argues is an admission of liability or against interest by Riverside.

Riverside’s write-off of Plaintiff’s balance for the hospitalization at issue was subject of Rule 4:5(b)(6) deposition by Riverside’s two most knowledgeable persons: RHS Risk Manager, Joann Friend; and Patient Accounting Manager, Deborah Gressett. Identified in their medical malpractice depositions were Riverside Deposition Exhibits 1 and 2.

Riverside Dep. Ex. 1 is 2/14-22/06 Statement for $75,036.08 (Bates-stamp nos. 77–83), and 10/27/06 RHS Authorization to Charge to Risk Management for $1234.00 (Bates-stamp nos. 84–85). Riverside Dep. Ex. 2 is 10/27/06 QMS Transaction # 68137 Summary Report re the write-off for the patient fall.

On March 13, 2006, Medicare payments/adjustments of $73,802.08 left a balance due of $1,234.00. On May 12, 2006, Plaintiff’s secondary coverage, Tricare, denied the remaining claim for $1,234.00 “due to lack of response of [sic] the third party liability questionnaire” vis-à-vis medical malpractice; and Plaintiff was referred to Ms. Gressett.

Tricare’s Third Party Liability Questionnaire is “a form that Tricare is sending to the patient, questioning whether there’s other liability involved.” See, Gressett at 8.4–6. In this patient fall case, the other third party liability is Riverside’s liability as Plaintiff claimed.

On October 27, 2006, while still facing the medical malpractice specter of Tricare’s Third Party Liability Questionnaire (256 days after the patient’s fall), Defendants’ Risk Manager unilaterally “waived” internally the $1,234.00 remaining unpaid. See, e.g., Friend at 13. Patient Accounting implemented the Risk Manager’s Authorization, resolving the third party liability issue with Tricare. See, Gressett at 8-9

Defendants’ Risk Manager admits that all Riverside write-offs do not come from Risk Management. See, Friend at 21. She also admits that some of her write-offs are for medical malpractice “errors”. Id. at 19.

After-the-fact, Defendants’ Risk Manager frames it that by her unilateral internal write-off she was “hoping that maybe we could mitigate some of [Plaintiff’s family] anger or convince them maybe not to sue us.” Id. at 14. But the fact is that Defendants’ Risk Manager never ever communicated with the patient or her family, e.g., id. at 15; that Defendants’ QMS Summary Report indicated the “$1,234 WAIVED FOR … FALL/ FX,” [fracture], i.e., patient fall and resulting fracture; and that no documentation has any indication of the ostensible “expression of sympathy” now claimed.

A. ADMISSION OF LIABILITY

Defendants fail to cite its counsel’s pre-statute case on point with undersigned counsel, upholding the admissibility of unilateral write-offs, Schuster v. Posner, No. LA-134-3 (Richmond Mar. 24, 1997). In another medical malpractice suit, Richmond Circuit Court ruled that defendants’ medical bill write-off was admissible against interest, that defendants were free to try explaining it away, and that “it’s up to the jury to decide who to believe”. See, 3/24/97 Schuster v. Posner Transcript at 75. 11-96.20.

Also, in 2011 the post-statute medical malpractice case of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County, Virginia, held the defendants’ write-off and no-charge were admissible. Both were admitted at trial and plaintiff was entitled to argue they were admissions of liability.

B. EXPRESSION OF SYMPATHY

Va. Code Ann. §8.01–581.20:1, the “expression of sympathy” statute, provides:

"In any civil action brought by an alleged victim of an unanticipated outcome of health care, or in any arbitration or medical malpractice review panel proceeding related to such civil action, the portion of statements, writings, affirmations, benevolent conduct, or benevolent gestures expressing sympathy, commiseration, condolence, compassion, or a general sense of benevolence, together with apologies that are made by a health care provider or an agent of a health care provider to the patient, a relative of the patient, or a representative of the patient, shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest. A statement of fault that is part of or in addition to any of the above shall not be made inadmissible by this section."

On its face, §8.01–581.20:1 does not apply to this patient fall case on 2 independent grounds.

First, there is nothing in the medical malpractice matter sub judice “expressing sympathy, commiseration, condolence, compassion, or a general sense of benevolence.” Second, nothing at bar was “made by a health care provider to the patient, a relative of the patient, or a representative of the patient.”

Moreover, on the particular facts of this patient fall case, §8.01–581.20:1 does not apply either. Faced with Tricare’s insurance coverage denial and the specter of Riverside’s “third party liability” – 256 days after its medical malpractice – Defendants’ Risk Manager quietly ponied up for the remaining costs of patient’s fall, did not express any sympathy to anyone, and did not even communicate with patient or family.

Under the circumstances, that constitutes an admission of medical malpractice liability or against interest by Riverside. Of course, Defendants remain free to claim otherwise to the jury.

Even medical malpractice defense lawyers commenting on the then-new statute shortly after its enactment emphasized that the “expressions of sympathy” contemplated were those made “to” the patient and family.

"E. Expressions of Sympathy

The effect of a health care provider's apology to a patient is a topic of much debate in both the legal and medical communities. The Veteran's Administration Hospital in Lexington, Kentucky adopted a novel disclosure policy concerning possible negligence, including requirements to notify patients of potential problems with their care and to hold face-to-face meetings with patients and their families to fully disclose all aspects of these problems. Several states have taken legislative approaches to this issue, enacting laws that provide civil immunity for those health care providers who express sympathy and benevolence to their patients. ***

Virginia is following the trend; health care providers in the commonwealth can now say "I'm sorry" to patients without fear of these sentiments being construed as an admission of liability at trial. The Virginia General Assembly incorporated into the Medical Malpractice Act a section focused solely on expressions of sympathy by health care providers. Virginia Code section 8.01- 581.20:1 provides that any ‘statements, writings, affirmations, benevolent conduct, or benevolent gestures expressing sympathy, or general sense of benevolence’ made by a health care provider are inadmissible as evidence of liability or an admission against interest when suit is brought against the health care provider by the patient to whom such expressions of sympathy were made."

Kathleen M. McCauley and Dana A. Dews, “Annual Survey of 2006: Medical Malpractice Law,” 41 U. Rich. L. Rev. 231, 243-244 (2006)(emphasis added).