Virginia Injury Attorney Blog

Trial’s December 2012 issue publishes “Elective Procedures, Not Elective Injuries.” That medical malpractice article covers holding “plastic surgeons accountable for clients’ injuries from elective cosmetic procedures.” Id. at 31.

It advocates, “If the plastic surgeon had reason to believe your client’s physical or mental condition would lead to complications or injury, the surgeon should be held liable.” Id. at 32. In addition to addressing other considerations, the Trial article evaluates each stage of a medical malpractice case for plastic surgery: Patient Candidacy, Preoperative Care, Intraoperative Care, and Postoperative Care. Id at 31-34.

Happy New Year!

Trial is the monthly magazine of the American Association for Justice (www.justice.org). Its December 2012 issue is dedicated to “RECLAIMING JUSTICE: BATTLING TORT ‘REFORM’,” which “reform” initiatives often result in medical malpractice legislation that limit victim rights.

Trial’s feature article, “The WEB of TORT ‘REFORM’,” exposes how Fortune 100 companies are trying to limit individual citizens’ legal recovery for product liability: “Major corporations have launched a concerted attack on the most basic tenets of civil justice. What they call tort ‘reform’ is in fact a disingenuous plot to convince Americans that corporations are on the side of ordinary citizens.” Id. at 15.

“The WEB” identifies a half-dozen corporate entities that campaign to restrict a person’s tort rights of redress for wrongful death and personal injuries:

1. Civil Justice Reform Group: CJRG, “comprising the general counsels of some of the largest and most profitable corporations in the world,” is at the “center of the campaign.” Id. at 16.

2. Institute for Legal Reform: “[M]ajor corporations hold the most sway” within the U.S. Chamber of Commerce’s ILR, which is “one of the largest players in the tort ‘reform’ movement” and whose “true goal is to benefit the interests of multinational corporations.” Id. at 16.

3. American Legislative Exchange Council: ALEC is “another secretive group of corporate lobbyists who write model legislation,” such as for “limiting access to the civil justice system for injured people [as] one of its top priorities.” Id. at 16.

4. American Tort Reform Association: ATRA “for many years functioned as the primary public relations arm of the tort ‘reform’ movement,” including with its “Judicial Hellholes project,” i.e., bashing of courts in which its members have lost big cases, and its “Astroturf organizing,” i.e., “faked grassroots support for limiting Americans’ legal rights.” Id. at 17.

5. Searle Civil Justice Institute: Based at George Mason University (“GMU”) in Arlington, Virginia, and affiliated with the Law & Economics Center there, the new SCJI turns focus of the tort reform movement to “academia,” commissioning on average $70,000.00-100,000.00 for the academic community to research and promote 10 suggested issue areas, “such as the ability of state attorneys general to contract with outside counsel, the use of pre-dispute mandatory binding arbitration clauses in contracts, the federal preemption of state tort laws, and class action litigation. Id. at 17.

6. Civil Justice Caucus Academy: Created by GMU’s Law & Economics Center in 2011, CJCA’s executive director immediately was the featured speaker at CJRG, attended by representatives of ILR, ALEC, ATRA, and major corporations. Id. at 17.

Major legislative initiatives of “tort reformers” include repeated attacks on the asbestos bankruptcy trust system and on state attorneys general retaining private law firms to prosecute product liability actions on contingency fees, such as was a success in the 1998 Tobacco Master Settlement Agreement. Id. at 17-20. Finally, “tort reformers” have focused efforts on the Federal Civil Rules Advisory Committee, toward imposing procedural restraints on the general public’s access to the civil justice system, particularly vis-à-vis spoliation of evidence and class action litigation. Id. at 22.

Trial’s companion feature article is “Spreading the Word about CIVIL JUSTICE.” Subtitled in part “As the civil justice system remains under attack, plaintiff lawyers are finding creative ways to highlight their role as defenders of public safety;” it highlights “BLOGGING for Justice,” “MARKETING that Matters,” and “Tell One Story at a Time.” Id. at 25-29.

Finally, Trial reports “Recap of Tort ‘Reform’ and Civil Justice Issues in the 112th Congress.” It recounts the historic defeat of H.R.5, the HEALTH Act, a Draconian medical malpractice bill that even a number of Republicans opposed and never got any traction in the Senate.

The December 2012 issue of Trial covers nursing home litigation. A feature article is “Weaving a NURSING HOME DEPOSITION STRATEGY.” Id. at 40-41. “When it comes to proving violations of the safety rules and resulting harm to the nursing home residents, you need to know the right questions to ask the defense witnesses, as well as how to dissect common defenses.” Id. at 40.

First, “Weaving” teaches that depositions must establish “standard of care” by developing the codified federal and state regulations and possibly the mirroring nursing home’s policies and procedures, per the following basic model: Assessment, Planning, Implementation, Reevaluation, and Communication. Id. at 41-42. Second, depositions must deconstruct the following general common medical malpractice defense arguments: (1) unavoidability (2) pointing the finger at the family or resident; (3) nursing judgment; (4) OBRA is not the standard of care; (5) policies and procedures are only guidelines; (6) poor documentation does not mean poor care; (7) custom and practice as evidence that care was provided; and (8) the unprepared witness. Id. at 42-44.

Third, depositions must marquee “systematic failures.” Id. at 44. “Once the deponent admits to a misstep in the nursing home model, the defense can no longer claim the injury was unavoidable.” Id. at 42.

Also, Trial’s “Verdict & Settlements” in December 2012 reported “Negligent Assistance to Nursing Home Resident.” A jury awarded $1,500,00.00 in a medical malpractice case of wrongful death. Id. at 10.

In the case reported, an 88 year-old died from complications of a patient fall. The facility nurse failed to take proper fall risk precautions and then to provide medical attention timely. Id.

Happy holidays!

On December 21, 2012, Best Lawyers in America featured a 2013 “Washington, D.C. & Virginia’s Best Lawyers” supplement to The Washington Post, The Richmond Times-Dispatch, and The Virginian-Pilot. Its cover story is “The Powerful Trial Lawyers at Patten, Wornom, Hatten & Diamonstein,” including Mr. Waterman who was recognized individually for both “Medical Malpractice Law - Plaintiff” and “Personal Injury Litigation - Plaintiff”.

“’We stand toe to toe with any big-city defense lawyers in the state,’ says partner Avery Waterman, a precedent-setting medical malpractice lawyer known as one of the top in the state. “We offer a level of sophistication and success that really is only found in a few firms’,” quotes the Best Lawyers’ Supplement at 3.

“’The people that we represent are families of permanently disabled breadwinners and deceased breadwinners who would never be on equal footing if we weren’t there to help’, says Waterman. ‘We give it everything at trial’.” Id.

“Indeed, says partner Avery Waterman, whose plaintiffs’ practice centers on medical malpractice litigation and catastrophic personal injury cases (such as brain injury, automobile and trucking accidents and the like), PWHD is known for being a go-to firm for some of the toughest cases to litigate. ‘The cases we take on require a significant commitment that is difficult to overstate,’ says Waterman, who has been with the firm since 1986, one of Virginia’s top medical malpractice attorneys. ‘In plaintiff’s practice, as we say, you only eat what you kill. So the risk is enormous but the reward for our clients is even greater’.” Id. at 15.

On December 20, 2012, the medical malpractice lawsuit of Myron Arshan, Executor of the Estate of Sharon Lorrie Britt, Deceased v. Stephen Plotnick, M.D., et al., No. CL11-1316 in Circuit Court for the City of Williamsburg and James City County, Virginia, came on for hearing on various Demurrers and Motions. Most issues were raised by the Plotnick Defendants, represented by Tracy T. Hague, Esq. of 349-lawyer LeClair Ryan based in Richmond.

First, the Court in the Arshan wrongful death suit granted Plaintiff’s Motion for Leave to Extend and denied Plotnick Defendants’ request for attorney’s fees and costs in opposition. Ms. Hague in her affirmative defenses of contributory negligence and assumption of risk requested a Reply under Va. Sup. Ct. Rule 3:11, which went unnoticed until 35 days after the deadline without Leave.

The Court in Arshan found no prejudice or bad faith and instead excusable neglect and prompt follow-up. Nonetheless, such Rule 3:11 pleading in medical malpractice and other cases remains a potentially serious trap for the unwary.

Va. Sup. Ct. Rule 3:11 provides plaintiffs “shall within twenty-one days” file a reply. It parallels Rule 3:8, which provides defendants “shall within twenty-one days” file a responsive pleading.

The Virginia Supreme Court mandates that the 21-day rule of Rule 3:5 (now Rule 3:8) must “be read in connection with Rule of Court 3:13,” Herndon v. Willis, 198 Va. 824, 826 (1957); and it must be the same with Rule 3:11. Rule 1:9 (formerly Rule 3:13) provides: “The time allowed for filing pleadings may be extended by the court in its discretion, and such extension may be granted though the time fixed already has expired….” Cf, Lennon v. Virginia Board of Dentistry, 2007 Va. App. LEXIS 475, *3-4 (2007).

The Virginia Supreme Court holds that the purpose of the 21-day rule for filing a responsive pleading by defendants is:

"[P]rescribing a time within which a defendant may and shall file his answer or other defense, is not to cut off the orderly presentation of defenses, or to set a trap for the unwary defendant by which a plaintiff may be delaying the prosecution of his cause cut off the defendant from a full defense or escape the necessity of providing his case. Its purpose is to prevent unconscionable delay in an orderly procedure … being caused by dilatory tactics on the part of the defendant or by the neglect of the defendant, where the plaintiff has shown due diligence on his part in the prosecution of the cause."

Worsham v. Nadon, 156 Va. 438, 446 (1931). The same salutary considerations underpin the 21-day rule for filing a reply by plaintiffs.

Hence, routinely numerous circuit courts have granted, and appellate courts have upheld, extensions of the 21-day rules. E.g., Lennon, supra at *5; Emrich v. Emrich, 9 Va. App. 288, 291-295 (1989)(“trial court abused its discretion in denying the request to file [late] answer”); Arshan v. Plotnick, No. CL11-1316, Order (Williamsburg/James City County Dec. 20, 2012)(Rule 3:11); Tarpley v. City of Martinsville, 82 Va. Cir. 222, 224 (Martinsville Feb. 9, 2011)(“lack of prejudice to the opposing party and the existence of a substantial defense”); Brown’s Buick, Inc. v. Granite State Ins. Co., 78 Va. Cir. 22, 23-24 (Alexandria Oct. 29, 2008); Sanders v. Shuttle America, 75 Va. Cir. 378, 379-381 (Loudoun Aug. 15, 2008)(motion for leave granted, despite being filed after motion for default); Nauman v. Samuels, 73 Va. Cir. 411, 412-416 (Charlottesville Jul. 10, 2007)(motion for default denied where defense “counsel’s inadvertence did not cause an ‘unconscionable delay’,” despite no responsive pleading being filed for more than 5 months); Fletcher v. Inova Health Care Servs., 71 Va. Cir. 331, 331-332 (Fairfax Aug. 2, 2006); Brown v. Allen, 64 Va. Cir. 349, 351-352 (Fairfax Apr. 8, 2004)(motion for default denied despite defendant filing responsive pleading a month late and seeking leave for the same more than 2 months later); Kohl v. Amerigas Propane, Inc., 64 Va. Cir. 49, 49-52 (Madison Feb. 4, 2004)(“ends of justice” required extension, despite no “excusable neglect”); Vasquez v. Commonwealth, 63 Va. Cir. 106, 107 (Fairfax Sep. 8, 2003); Jay-Ton Constr. Co., Inc. v. Bowen Constr. Servs., Inc., 62 Va. Cir. 414, 424-436 (Portsmouth Aug. 13, 2003)(Rule 3:12, currently Rule 3:11); Jay-Ton Constr. Co., Inc. v. Bowen Constr. Servs., Inc., 62 Va. Cir. 530, 531 (Hampton Nov. 22, 2002)(Rule 3:12, currently Rule 3:11); Northland Ins. Co. v. Reichold, Inc., 58 Va. Cir. 271, 273 (Portsmouth Feb. 27, 2002); Mack v. Starwood Hotels and Resorts Worldwide, Inc., 57 Va. Cir. 390, 392-395 (Norfolk Feb 26, 2002); Riddle v. CARS, 45 Va. Cir. 236, 238-239 (Rockingham Mar. 26, 1998)(default judgment set aside and late responsive pleading permitted for “ends of justice”); Grant v. Doe, 31 Va. Cir. 254, 255 (Louisa Jul. 1, 1993)(default judgment set aside and late responsive pleading permitted); Richardson v. Wheeled Coach Corp., 20 Va. Cir. 458, 459 (Loudoun Aug. 21, 1990); Parker v. 900 East Marshall Street Assocs., 17 Va. Cir. 426, 427-428 (Richmond Dec. 6, 1989); Consolidated Healthcare, Inc. v. Overseas Partners, Inc., 14 Va. Cir. 241, 241-242 (Henrico Dec. 27, 1988); Chittum v. Chittum, 4 Va. Cir. 280, 282-283 (Frederick Apr. 4, 1985)(“interest of justice”); Greene v. Smith, 4 Va. Cir. 488, 489-490 (Sep. 25, 1979)(“ends of justice” permitted filing responsive pleading almost 1 year late)(Stephenson, J.); and Standard Farms, Inc. v. Alexander, 4 Va. Cir. 463, 463-464 (Augusta Jan. 31, 1978)( “permitting late filings would ends of justice”)(Stephenson, J.). Judge Stephenson’s opinions granting late pleadings for “justice” in Standard Farms in 1978 and in Greene in 1979 undercut Plotnick Defendants’ attempted reliance on his earlier adverse decision in 1976 in Nida v. Hooker, 4 Va. Cir. 430 (Allegheny Nov. 29, 1976). Indeed, a circuit court’s exercise of discretion may be improper if it limits late responsive pleading. E.g., Westfall v. Westfall, 196 Va. 97, 100-105 (1954)(error for circuit court to impose condition on party filing responsive pleading 8 months late where it had not “delayed the progress of the case”).

Nonetheless, Plotnick Defendants in the Arshan wrongful death suit cite the Court of Appeals’ 1989 opinion in Emrich (which granted leave for late pleading) and several random circuit court decisions. Plotnick Defendants ignore the Court of Appeals’ 2007 opinion in Lennon, which explains that Emrich’s list of “several ‘circumstances which support the exercise of discretion to extend the time of filing’,” however, “clearly … is not exhaustive or necessarily determinative; the application of the rule ‘rests within the sound judicial discretion of the trial court, it being impossible to lay down a rule which will be binding in all cases’.” Id. (quoting Eagle Lodge v. Hofmeyer, 193 Va. 864, 870, 71 S.E.2d 195, 198 (1952)).” 2007 Va. App. LEXIS 475, *4 (emphasis added).

The decision in Executive Homes Realty Corp. v. Mathews, 38 Va. Cir. 486 (Williamsburg/James City Mar. 27, 1996), cited by Plotnick Defendants, is readily distinguishable and inapposite on the facts. Unlike Plaintiff in the Arshan medical malpractice case, the late party in Executive Homes never filed a late reply - or even sought leave to do so - and instead simply let their delinquency unto default be decided against them on summary judgment. Id. at 490-491.

Likewise, Spradling v. W.O. Grubb Steel Erection, Inc., 61 Va. Cir. 607, 608 (Newport News Mar. 11, 2002), also cited by Plotnick Defendants in the Arshan wrongful death lawsuit, similarly is distinguishable and inapposite for the delinquent party never filing a late reply or even seeking leave to do so. More fundamentally, the Court in Spradling explicitly stated that the point of dicta cited by Plotnick Defendants at bar was “moot”. Id.

Bates v. Merritt, 83 Va. Cir. 134, 135-136 (Loudoun Jun. 29, 2011), additionally cited by Plotnick Defendants, is distinguishable and inapposite on the facts too. Unlike Plaintiff in the Arshan medical malpractice case, plaintiff in Bates did not request an extension, plus violated an existing Court Order that set a deadline for filing an Amended Complaint. Id.

Notably, the defense Memorandum in Opposition to Plaintiff’s Motion for Leave to Extend filed in the Arshan wrongful death case on December 17, 2012, may be used against LeClair Ryan in the future. If one of its Defendant clients fails to file a timely pleading in response to a Complaint, Counterclaim and/or Cross-claim, then Ms. Hague's Memorandum in Opposition would be good authority for entry of a default judgment instead of an extension of time.

Finally, the Arshan Court also overruled Plotnick Defendants’ Demurrer re punitive damages, finding Plaintiff sufficiently pleaded his wrongful death claim that Plotnick Defendants’ conduct was “so reckless as to evince a conscious disregard for the safety of others”. See, Va. Code Ann. §8.01-52; Virginia Model Jury Instruction No. 9.105 (Punitive Damages: Death by Wrongful Act); and Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 144 (1992). The Court also granted Plotnick Defendants’ Demurrer to Plaintiff’s “negligent retention” claim and Amended Complaint Paragraph 24(N); granted in part (in light of its ruling on “negligent retention”) and denied in part their Motion to Strike; and found moot Defendants’ Motion to Sever the "negligent retention" claim.

On December 14, 2012, The Daily Press headlined “Jury awards #3.5M to woman, 87, who fell” and www.dailypress.com headlined “NN jury makes $3.5 million award to 87 year-old.” The identical articles cover Mr. Waterman’s recent patient fall trial, Burrell v. Riverside Hospital, Inc., No. CL1101633F-15 in the Circuit Court for the City of Newport News, Virginia.

The Daily Press quoted Mr. Waterman re his sizeable favorable verdict for the 87 year-old: “It’s vindication that the elderly aren’t throwaways.” Historically, there has been a defense mindset that medical malpractice cases involving older victims are not worth much.

The Daily Press also quoted Mr. Waterman about the magnitude of the patient fall problem beyond Riverside. “It happens in hospitals and nursing homes in every health system. It’s a chronic problem in every state nationwide. It’s rampant.”

Riverside’s Risk Manager declined The Daily Press’ interview request about the patient fall case. Instead, Riverside issued a prepared statement, expressing disappointment with the $3,500,00.00 jury award, considering its appeal options, and extolling its quality.

The Daily Press article recounts the preventative measures that should have been used by Riverside for its victim in-patient: (1) relocating the patient closer to the nurse’s station; (2) using a bed alarm; (3) using a sitter; and (4) using soft restraints, like a posey vest. It recounts further that some nurses do not like using bed alarms because of “false positives,” but quotes Mr. Waterman that “some false positives are a worthwhile inconvenience” toward avoiding such serious personal injuries and even wrongful death.

The Daily Press highlighted Mr. Waterman calling 8 highly-credentialed experts among his more than 40 witnesses and him using new key technology to demonstrate the victim’s brain injury, including 3.0 Tesla MRI with its cutting-edge Diffusion Tensor Imaging (“DTI”) and NeuroQuant Analysis. Additionally, it marqueed Mr. Waterman’s reliance on his 2006 Virginia Supreme Court decision against Riverside - Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006) - to introduce into evidence 4 “incident report” documents containing factual information of patient care that was not entered in the patient’s chart by Riverside personnel.

In Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F15 in Circuit Court for the City if Newport New, Virginia, the deadline for filing post-trial motions is December 14, 2012. In anticipation of Defendant Riverside appealing versus paying Mr. Waterman’s client the statutory medical malpractice “cap” of $1,800,00.00, Plaintiff is filing Motion for Recovery of Costs and Motion to Set Appeal Bond.

If Defendant Riverside does notice an appeal, the patient fall victim will cross-appeal against Riverside and Co-Defendant, Nurse Melanie Ames. Plaintiff’s appellate grounds will feature “first impression” questions such as the admissibility of Riverside’s restraint policy, its fall protocol, and its bill write-off as evidence.

Mr. Waterman has been invited to speak at AAJ’s Seminar on Winning Medical Negligence Cases with Rules of the Road in Scottsdale, Arizona, during March 8-9, 2013. The seminar is based on Rule of the Road (2d ed.) authored by CLE organizer, Patrick Malone, and Rick Friedman.

This morning in Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., Case No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia, a jury awarded Mr. Waterman’s 87 year-old client $3,500,000.00 against Riverside Hospital, Inc. for her in-patient fall. For liability, Riverside relied on Nurse Janet Willersdorf of MCV; and for causation on Dr. Joel Bowers of Providence Hospital in DC.

In the Burrell medical malpractice trial, Mr. Waterman introduced cutting-edge 3.0 Tesla MRI, its "fractional anisotropy" a/k/a Diffusion Tensor Imaging ("DTI"), and NeuroQuant Analyisis. The Burrell jury verdict more than doubles Mr. Waterman’s 2005 Newport News jury verdict of $1,600,000.00 against Riverside Hospital, Inc. for another patient fall victim, which culminated in a landmark opinion of the Virginia Supreme Court, Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006).

In the medical malpractice case of McKinney v. Virginia Assocs., P.C., No. 111869 (Sep. 14, 2012), the Virginia Supreme Court interpreted Va. Code Ann, 8.01-229(E)(3) and 8.01-380. A survival action filed within six months of non-suit of a wrongful death action was held timely. Id. at *7.

McKinney found that the underlying “cause of action was the defendant’s alleged medical malpractice resulting in injury to the decedent.” Id. at *6. “From this cause of action, two rights of action arose: (1) the decedent’s right to bring an action for personal injury during his lifetime, which survived to be carried on by his personal representative after his death, and (2) the personal representative’s right to bring an action for wrongful death.” Id.

Upon rehearing of John Crane, Inc. v Hardick, No. 101909 (Sep. 14, 2012), the Virginia Supreme Court reinstated a $2,000,000.00 damages award for pre-death pain and suffering. The award was by a Newport News Circuit Court jury in an asbestos wrongful death case handled by the asbestos lawyers in Mr. Waterman’s firm, Patten, Wornom, Hatten & Diamonstein.