“Only if and until a court makes such a determination [of disqualifying cohabitation], is husband entitled to discontinue making support payments under the terms of the agreement [‘ratified, affirmed, and incorporated’ by final decree].” Stroud v. Stroud, 54 Va. App. 231, 238 (2009)(“Stroud II”). Thus, the Court of Appeals held “the provision of the PSA regarding termination of spousal support was not a self-executing provision and that husband was not entitled to unilaterally terminate support payments without seeking entry of a proper court order.” Id. at 239. Since in the special case of Routson the recipient did not relinquish monthly payments voluntarily, Plaintiff under Stroud II “had no choice but to seek a judicial remedy and have the trial court determine if she was cohabitating in a situation analogous to marriage.” Id. Successful enforcement of a Property Settlement Agreement providing for attorneys fees entitles the prevailing party to an award of the same. E.g., O’Machel v. O’Machel, 2000 Va. Cir. LEXIS 153 (Fairfax Jul. 6, 2000).
Regarding the amount of attorneys fees to be awarded, Carr v. Carr, No. CH05-378, Letter Op. (Hampton Cir. Ct. Mar. 8, 2007) aff’d No. 0096-09-1 (Va. App. Aug. 18, 2009)(unpublished) reh. denied (Sep. 22, 2009)(en banc) is instructive. The losing party in Carr “displayed an extraordinary reluctance to accept and speak the plain and simple truth,” and with such “obdurate behavior and testimony” caused “protracted litigation”. An itemized statement for $43,318.83 in attorneys fees engaged and performed by Williamsburg/Newport News lawyer “Avery T. “Sandy” Waterman, Jr., Esq. was introduced in evidence. Id. at 2-3. “A line-by-line analysis of Mr. Waterman’s fees is consistent with what he was required to do to represent his client appropriately,” found Judge Hutton in Carr. “The bill for services should be fully borne by the [losing party]. I award the [prevailing party] $43,318.85 in attorneys fees.” Id. at 3. See also, Bullano v. Bullano, No. 0577-06-2 (Va. Ct. App. Jan. 30, 2007)(unpublished).
]]> If you or a loved one are victim in a vehicle accident, criminal matter, or other special case, please contact Avery T. "Sandy" Waterman, Jr., Esq. in Newport News or Williamsburg, Virginia, at 888.881.7881, 757.881.9881 or contact him online.First, the judge in Moniz granted Plaintiff’s Motion to Set Trial Date. Second, he granted Plaintiff’s Motion for Entry of Order. Third, he granted Plaintiff’s Motion to Compel Deposition of Defendant. Dr. Moniz must submit to discovery deposition by April 30, 2010; and the Moniz medical malpractice suit is scheduled for jury trial on the merits during March 28-April, 2011, in Yorktown.
If you or a loved one are victim of medical malpractice, vehicle accident, or other personal injury, please contact Avery T. "Sandy" Waterman, Jr., Esq. in Newport News or Williamsburg, Virginia, at 888.881.7881, 757.881.9881 or contact him online.
]]>On appeal after remand in O’Hara, the Court of Appeals affirmed the trial court finding the requisite one-year habitual cohabitation by a preponderance of the evidence, despite the relationship being “dysfunctional”. Wife and boyfriend testified that he used her address as his on numerous document and that they were sexually intimate, resided together “on and off” over three years, and lived together continuously for only 10 months. O’Hara v. O’Hara, 2006 WL 1814849 (Va. App. Jul. 5, 2006)(unpublished).
Subsequently, the Court of Appeals found disqualifying cohabitation “as a matter of law” after analyzing the following four “non-exclusive” factors: (1) common residence; (2) intimate or romantic involvement; (3) provision of financial support; and (4) duration and continuity of the relationship and other indicia of permanency. Stroud v. Stroud, 49 Va. App. 359 (2007)(“Stroud I”). Significantly, even though the PSA required cohabitation “for a period of thirty (30) or more continuous days,” Stroud I still found a “common residence” where the couple simply “spent five nights a week for over a year” together and only “spent 34 consecutive days, with the exception of the four-day business trip”. Id. at 373-374. “Intimate or romantic involvement” was satisfied by sexual acts and an exchange of rings. Id. at 374. Notably, Stroud I found “provision of financial support” where the non-owner lived residentially for free, thereby being able to rent out another property. Id. Finally, “duration and continuity of the relationship and other indicia of permanency” was established by a long relationship of about three years, ring exchange and some co-parenting. Id. at 374-375. Nonetheless, Stroud I emphasized that a finding of cohabitation “must be based upon evidence concerning the overall nature of the relationship, not merely a piecemeal consideration of individual factors”. Id. at 376-377.
Following Stroud I, Waugh v. Waugh, 2009 Va. Cir. LEXIS 43 (Fairfax Jun. 25, 2009) recently found disqualifying cohabitation – even under §20-190(A)’s elevated “clear and convincing” evidence standard. Like the ex-wife in the special case of Routson, the ex-wife in Waugh “places a heavy emphasis on the lease agreement between her and [her live-in] and argues that this agreement is probative of the fact that there is no financial support between her and [him].” Id. at *12-13. Waugh emphasized that “the Court of Appeals has stated that financial support is merely one factor that may make a living arrangement ‘analogous to a marriage.’ See, Frey v. Frey, 14 Va. App. 270, 272, 416 S.E. 2d. 40, 42, 8 Va. Law Rep. 2606 (Va. Ct. App. 1992).” Id. at *13. Moreover, Waugh analyzed that the live-in’s monthly rent payment provided the owner money to pay bills; and that the live-in’s rent had not increased and financially was the best living situation available. Id. at *14. “Thus, as both persons received a substantial economic benefit from the living situation, Husband has [proved] that Wife and [her live-in] provide financial support for one another.” Id.
Plaintiff’s Motion is scheduled for Court hearing on March 4, 2010. Companion blogs about the three underlying issues and the hearing in the Marshall v. Moniz medical malpractice lawsuit claiming $12,000,000.00 are posted on February 4,6, 8, and 9, 2010.
In her First Motion in Limine, Plaintiff seeks to exclude the defense retained expert from referring to any Cincinnati Veterans Administration (“VA”) records because of them not being identified or even possessed at the time of her required expert disclosure by the defense. Simarily, in her Third Motion in Limine, Plaintiff seeks to exclude any use of Cincinnati, Richmond, Hampton, Roanoke and/or other VA records containing expert opinions because of those expert opinions not being disclosed in the defense expert designation as required.
The Virginia Supreme Court recently underscored the gravity of the expert disclosure requirement under Virginia Supreme Court Rule 4:1(b)(4)(A)(i) in John Crane, Inc. v. Jones, 274 Va. 581 (2007) writ denied 552 U.S. 1184 (2008) (copy attached). Crane upheld what the defense claimed was a “dramatic and unfair limitation of expert testimony” by Judge Peter C. Tench in Newport News. Id. at 591.
In Crane, nothing in Defendant's expert disclosure or report referred to the disputed point of testimony objected by plaintiff. Id. at 592. The Virginia Supreme Court found unavailing defense arguments that plaintiff already was familiar with the topic and/or could have deposed the defense doctor. Id.
”Such a rule would impermissibly alter a party’s burden to disclose and impose an affirmative burden on the non-disclosing party to ascertain the substance of the expert’s testimony. We reject this reading of Rule 4:1(b)(4)(A)(i).” Id. (emphasis added). See also, id at 593.
]]> Consistent with Crane, the defense in the Garrity vehicle accident case failed to make any reference in the expert disclosure or report of Dr. Richmond about reliance on Cincinnati VA records (which then had not even been obtained), or of the various expert opinions contained in the Cincinnati, Richmond, Hampton, Roanoke, and other VA records. Plaintiff asserts that is fatal to the defense at bar under Rule 4:1(b)(4)(A)(i), particularly in light of Plaintiff having made rebuttal expert disclosures which therefore to her prejudice could not and did not address what the defense had omitted.If you or a loved one are the victim of vehicle accident, brain injury or wrongful death, please contact Avery T. "Sandy" Waterman, Jr., Esq. in Newport News or Williamsburg, Virginia, at 888.881.7881, 757.881.9881 or contact him online.
]]>To resolve the drafting impasse, Plaintiff’s Motion will be scheduled for Court hearing shortly. Companion blogs on the underlying uses ofSentara Incident # 20119 in the Mahone v. Sentara medical malpractice proceeding claiming $4,250,000.00 are posted on February 2, 5, 15, and 17, 2010.
]]> If you or a loved one are victim of medical malpractice, wrongful death, or other personal injury, please contact Avery T. "Sandy" Waterman, Jr., Esq. in Newport News or Williamsburg, Virginia, at 888.881.7881, 757.881.9881 or contact him online.]]>The Mahone v. Sentara wrongful death suit and Sentara Incident Report # 20119 is the subject of significant companion blog posts on February 2, 5, 15, and 22, 2010. Posting of the full hearing transcript and of other companion blogs is anticipated shortly.
]]> If you or a loved one are victim of medical malpractice, wrongful death, or other personal injury, please contact Avery T. "Sandy" Waterman, Jr., Esq. in Newport News or Williamsburg, Virginia, at 888.881.7881, 757.881.9881 or contact him online.The Mahone v. Sentara medical malpractice lawsuit is the subject of significant companion blog posts on February 2, 5, 17, and 22, 2010. Posting of that full hearing transcription, as well as of other companion blogs, is expected soon.
]]> If you or a loved one are victim of wrongful death, medical malpractice, or other personal injury, please contact Avery T. "Sandy" Waterman, Jr., Esq. in Newport News or Williamsburg, Virginia, at 888.881.7881, 757.881.9881 or contact him online.First, Defendants’ Motion to Transfer Venue to the Circuit Court for the City of Williamsburg/James City County, Virginia, was denied. The Court found in the Marshall v. Moniz medical malpractice case that York County was permissible venue based on tortious acts and/or omissions occurring there at the new Sentara Williamsburg Community Hospital and Defendants regularly conducting substantial business activity there at the hospital, pursuant to Va. Code Ann. §8.01-262(3 & 4). The Court in Marshall v. Moniz found that Defendants failed to bear their burden of proving “substantial inconvenience” to witnesses, despite Defendants claiming a 13-mile difference in driving distance. Plaintiff initially having filed suit in Williamsburg was not pertinent to forum non conveniens pursuant to Va. Code Ann. §8.01-265.
Second, Defendants’ Demurrer and Special Pleas of Statute of Limitations, Res Judicata, and Autre Action did not defeat the proceedings and was overruled. The Court in the Marshall v. Moniz medical malpractice case found that the doctrine was not self-executing, only applied if two identical suits were pending at the time of filing and, in and event, did not require that the initial action be the one maintained.
Third, Defendants’ Demurrer for allegations of unspecified negligence was overruled too. The Court in the Marshall v. Moniz medical malpractice suit found that Plaintiff’s negligence itemization of “such other acts and/or omissions as may be discovered, investigated and proved at trial” was gratuitous and, if anything, subject to a Motion to Bill of Particulars and not a Demurrer.
Plaintiff already has requested the discovery deposition of Defendant, Dr. Moniz. Plaintiff is moving to schedule the medical malpractice lawsuit in Marshall v. Moniz for jury trial on the merits in early 2011 at Yorktown Courthouse.
]]> If you or a loved one is victim of medical malpractice, wrongful death, or other personal injury, please contact Avery T. "Sandy" Waterman, Jr., Esq. in Newport News or Williamsburg, Virginia, at 888.881.7881, 757.881.9881 or contact him online.Va. Code Ann. §8.01-261 provide “Category A or preferred venue”. There is no preferred venue in the Marshall medical malpractice lawsuit .
Va. Code Ann. §8.01-262(3&4) provide “Category B permissible venue,” wherein “the defendant regularly conducts substantial business activity” and/or “the cause of action, or any part thereof, arose”. York County is permissible venue under both of those subsections in the Marshall medical malpractice suit.
“While plaintiff’s choice of forum is not entitled to absolute deference, it ‘should not be lightly defeated’.” Champigny v. Bagly, 55 Va. Cir 381, 382 (Norfolk Jul. 2, 2001)(citations omitted). “A rebuttable ‘presumption of correctness attaches to a plaintiff’s choice of forum’.” Kollman v. Jordan, 60 Va. Cir. 293, 294 (Chesterfield Oct. 29, 2002). When “considerations are equal or even close, the plaintiff’s choice of forum must prevail.” Wray v. Floyd & Beasley Transfer Co., 29 Va. Cir. 126, 130 (Richmond Sep. 17, 1992).
“Plaintiff does not need to explain his reasons for placing venue in any particular forum that §8.01-262 allows.” Id. “According to the plain language of the statute [§8.01-265], Defendant has the burden to show good cause for a transfer.” Id.
]]> The Virginia Supreme Court and numerous Circuit Courts have denied transfer of venue where Defendants have failed to bear their burden of proving “good cause” for “substantial inconvenience” in similar and even arguably more compelling witness circumstances. E.g., VEPCO v. Dungee, 258 Va. 235, 244-247 (1999)(“travelling 30 miles . . . imposed minimal cost and inconvenience”); Birdsall v. Federated Dept. Stores, Inc., 70 Va. Cir. 290, 292-293 (Fairfax Mar. 14, 2006)(New York was location of tort and plaintiff’s prior residence); Exhibit 6, Biess v. Frenkel, No. L02-1139 (Norfolk May 8, 2003); Kollman, supra at 294-295 (courthouses in adjoining localities 12 miles apart); Bradley v. Kellum, 55 Va. Cir. 397, 399 (Charlottesville Jul. 18, 2001)(witnesses speculative and unspecified but most 70 miles away); Champigny, supra at 382-386 (courthouses 20 miles apart); Sponaugle v. Rutledge, 58 Va. Cir. 3, 5-6 (Fairfax May 30, 2001)(single republication 125 miles away from multiple primary defamations and defendant’s residence in James City County); Holte v. Norfolk and Western Ry. Co, 47 Va. Cir. 403, 404 (Richmond Nov. 24, 1998)(movant failed to bear burden without evidence of doing business or inconvenience); Wray, supra at 127-130 (9 witnesses 80 miles away); and Lee v. Richmond, Fredericksburg and Potomac Railroad Co., 23 Va. Cir. 357, 359-362 (Richmond Apr. 9, 1991)(location of tort plus witnesses 50 miles away). Indeed, “the Virginia Supreme Court has held that the mere fact that there is ‘no practical nexus’ between the venue Plaintiff has selected the cause of action does not provide good cause for a transfer.” Kollman, supra (citing Dungee, supra). Significantly, virtually all defense case law is pre-Dungee circuit court orders.The matter sub judice follows Moore v. Gillis, 239 Va. 239 (1990). There are practical nexuses and minimal – in fact, only speculative unspecified arguable – witness inconvenience. For example, healthcare providers of Plaintiff are located on the Southside, closer to York County; and several witnesses are 125-150 miles away from both York and Williamsburg.
In the medical malpractice claim of Marshall, there is a practical nexus and minimal – in fact, only arguable – witness inconvenience. For example, healthcare providers of Plaintiff are located on the Southside, closer to York County.
If you or a loved one are victim of medical malpractice, vehicle accident, or other personal injury, please contact Avery T. "Sandy" Waterman, Jr., Esq. in Newport News or Williamsburg, Virginia, at 888.881.7881, 757.881.9881 or contact him online.
]]>Yet, it is hornbook law that Virginia is a “notice” pleading state. “Every pleading shall state facts on which the party relied in numbered paragraphs, and it shall be sufficient if it clearly informs the opposite party of the true nature of the claim or defense.” Va. Sup. Ct. Rule 1:4(d)(emphasis added).
Conversely, Virginia pleading does not require plaintiffs to itemize details of negligence. “An allegation of negligence. . . is sufficient without specifying the particulars of the negligence.” Va. Sup. Ct. Rule 3:18(b)(emphasis added).
A Demurrer is used to make “the contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted.” Va. Code Ann. §8.01-273(A). “[I]t is unnecessary for the pleader to descend into statements giving the details of the proof in order to withstand demurrer” if the complaint informs the defendant of the nature and character of the claim. Catercorp, Inc. v. Cathering Concepts, Inc., 246 Va. 22, 24 (1993).
Thus, in Ragsdale v. Jones, 202 Va. 278, 284 (1960), the Virginia Supreme Court upheld the admission of intoxication evidence, even through negligence in general and not intoxication in particular was pleaded. Likewise, in Moore v. Jefferson Hosp., Inc., 208 Va. 438, 439 (1967)(reversing a supposed failure to state), the Virginia Supreme Court found sufficient plaintiff’s pleading of negligence that defendant “proximately caused injury to the plaintiff, both mental and physical”. Likewise, Moore v. Payless Supermarket, Inc., 18 Va. Cir. 197, 200 ( Wise Sep. 15, 1989) found the “general allegation of negligence is sufficient”. Similarly, Cunningham v. Roanoke Reg. Airport Comm’n, 70 Va. Cir. 273, 276 ( Roanoke Mar. 8, 2006) held “pleadings are not required to assert anything more than a general allegation of negligence”.
]]> In medical malpractice case of Marshall, Plaintiff pleads sufficient facts, see, Complaint at Paragraphs 4-12; and goes beyond the pale by enumerating some particulars of negligence. See, Complaint at Paragraphs 3 and 13-15. But Plaintiff cannot be pilloried – black-lined and blue-penciled – for giving Defendants a heads-up that there may be other particulars of negligence: his facts are governed by Rule 1:4, but his negligence allegations are governed only by Rule 3:18 (which Defendants ignore) and there is no Virginia Supreme Court authority for editing particular negligence allegations by Demurrers.Defense counsel initially won over other Circuit Courts juxtaposing fact versus negligence pleading requirements. But misguided Circuit Court holdings do not trump Rule 3:18; plus the legal tide is turning, as recent decisions correctly overrule Demurrers on the point. E.g., Taylor v. Dorn, No. CL09-113, Order (Mecklenberg Jan. 22, 2010); Belay v. Dixon, No. 08002445, Order (Alexandria Jan. 2, 2009); Indeed, some recent Orders obtained by Williamsburg/Newport News attorney Avery T. “Sandy” Waterman, Jr., Esq., predicate granting amendment of Complaints on the identical “catch-all” allegations of negligence. E.g., Morel v. Mary Immaculate Nursing Ctr., Inc., No. 0703005P-03, Order (Newport News Sep. 2, 2008); Licare v. Riverside Health Sys., No. 0702452T-01, Order (Newport News. Feb. 1, 2008).
What are Defendants really trying to achieve in the Marshall medical malpractice suit? Their inequitable impractical gambit is to limit Plaintiff only to the particulars of negligence enumerated gratituitously long before expert disclosures and without the benefit of any discovery – and to cry foul, if Plaintiff subsequently identifies any other particulars of negligence – which should not be countenanced by York County Circuit Court.
Rules and Pre-Trial Orders governing discovery, expert disclosures, etc. are the appropriate protections already afforded Defendants. York County Circuit Court should not eviscerate Plaintiff’s pleading and discovery by rejection of modern “notice” and retreat to archaic formalities.
If you or a loved one are victim of medical malpractice, vehicle accident, or other personal injury, please contact Avery T. "Sandy" Waterman, Jr., Esq. in Newport News or Williamsburg, Virginia, at 888.881.7881, 757.881.9881 or contact him online.
Sentara’s Emergency Petition accused that the related blog post of February 2, 2010, was “inappropriate conduct”. It prayed in the Mahone v. Sentara wrongful death suit: (a) That plaintiff’s counsel, Avery T. Waterman, Jr., be ordered to immediately remove the blog posted by plaintiff’s counsel on February 2, 2010, in its entirety; (b) That plaintiff prove to this Court, and Sentara, that the blog has been removed and that a diligent search to remove all “cached” versions of the entry that could be found on the internet were removed; (c) That the Court issue an Order on plaintiff’s counsel to take no further actions in regard to this case until such time as a full formal hearing can be had before the Court to determine if plaintiff’s counsel can continue representing the Estate of Felicia T. Madison in this matter; and (d) That Plaintiff’s counsel be ordered to secure Incident Report # 20119, and all copies thereof, and return them to the Court pending a ruling from the Court as to these earlier requested matters given his public disgorgement of confidential information.
Plaintiff filed a Memorandum in Opposition in the Mahone v. Sentara medical malpractice proceedings. Mr. Waterman advances multiple grounds justifying the blog posting, including particularly without limitation that: (1) the underlying Sentara Incident Report # 20119 was not privileged in fact; (2) the “substantial need” exception applied to any claimed privilege; (3) any claimed privilege without exception was waived by Mr. Yoakam’s voluntary production; (4) his production was in open Court without any protective order; (5) Plaintiff would not have agreed to any restriction on production; and (6) ex post facto censure violates and chills Constitutional rights of free speech and Court access.
At "emergency" hearing on February 5, 2010, the presiding Judge in the Mahone v. Sentara wrongful death action was “disturbed” by Sentara’s Emergency Petition; found that Williamsburg/Newport News attorney Avery T. “Sandy” Waterman, Jr., Esq. “acted fully professionally in turning the document [Sentara Incident Report # 20119] over” and was “free to publish whatever he wants”; and denied Sentara’s Emergency Petition and all relief. The Judge also denied the repeated oral Motion of Ted G. Yoakam, Esq. to prohibit further disclosure on this topic.
Ironically, Ted G. Yoakam, Esq., as plaintiff’s counsel has made numerous public disclosures for almost a year about his pending multi-party “coal ash dump” lawsuits filed in Circuit Court for the City of Chesapeake, Virginia, No. CL09000710-00 Fentress Family Trust v. Virginia Electric and Power Company and No. CL09001914-00 Darryl Sears v. Virginia Electric & Power Co. Indeed, Mr. Yoakam’s own pending “coal ash dump” litigation disclosures were made in City Council meetings, The Virginian-Pilot articles, and even “60 Minutes” television broadcasts.
]]> As requested by the Judge in Mahone v. Sentara, an Order memorializing the "emergency" hearing was prepared by Mr. Waterman and circulated to Mr. Yoakam for endorsement and entry by the Court later this month. The lawsuit for medical malpratice continues on the Court’s active docket against Sentara.The emergency hearing transcript in the Mahone v. Sentara wrongful death claim against Sentara will be available in two weeks, so this blog posting may be supplemented accordingly. Meanwhile, Sentara Incident Report # 20119 follows, a true copy of which in original form will be forwarded to you upon request:
RUN DATE: 07/29/08 OBICI PROGRAMMING DIRECTORY
RUN TIME: 1314 EVENT - complete list
Incident#: 20119
Category PATIESTT, STUDENT, VOLUNTEER, VISITOR, ETC.
Type PROCEDURE/PRACTICE VARIANCE
Event Dt 07/03/07 @ 0430
Entered 07/03/07 @ 0630
by SHARON S PRESSON RN
Name MADISON, FELICA T MR# 211457 DOB 10/27/75 Sx F
Add 415 WOODRUFF ST SUFFOLK VA 23434 Unit 2-INTENSIVE CARE
Phone# 539-8145 Loc 2ICU
Dx HEMOLYTIC ANEMIA, THROMBOCYTOPENIA Phys FORMAN, JEFFREY D. M.D.
Description
PT HAD CHANGE IN STATUS ON FLOOR. PT BROUGHT TO ICU WITH 1 UNIT OF PRBC'S NOT SPIKED OR INFUSING, AND NON-FUNCTIONING IV LOCK IN RT HAND. BY THE TIME IV ACCESS WAS ESTABLISHED, IT WAS TOO LATE TO TRANSFUSE PRBC'S AND PT ARRESTED 15 MIN AFTER ARRIVAL. EXPIRED BLOOD RETURNED TO LAB.
OUTCOME/IMPACT of EVENT: UNKNOWN
EFFECT/CORRECTIVE ACTION:
Departments
1-MEDICAL/ONCOLOGY Q
QA/Risk Management
2-INTENSIVE CARE UNIT
FOLLOW-UP
CATHY GRAY RN
Pt was admitted to let floor at 1740. A unit of blood had already been infused. The IV went bad multiple attempts were made to restart the IV 0300 The nursing supervisor also attempted IV. MD made aware that they could not get an IV site. MD ordered to have patient moved to ICU
PAT MANIX
Task: Please provide follow-up Status: REQD
PATIENT WAS CREDITED FOR THE UNIT AND THE UNIT WAS DESTROYED. IF THE NURSE HAD RETURNED THE UNIT AS SOON AS SHE WAS UNABLE TO START, THE UNIT MAY HAVE BEEN SAVED.
Post and forward to friends, colleagues, and victims.
If you or a loved one are victim of medical malpractice, wrongful death, or other personal injury, please contact Avery T. "Sandy" Waterman, Jr., Esq. in Newport News or Williamsburg, Virginia, at 888.881.7881, 757.881.9881 or contact him online.
The Supreme Court of Virginia already has countenanced the exact procedure postural of the Marshall medical malpractice suit. Plaintiffs are entitled to file one action, file a second action in another jurisdiction, non-suit the first action, and proceed with the second action in the different jurisdiction. Moore v. Gills¸ 239 Va. 239 (1990). Cf., Smith v. Ellis, 28 Va. Cir. 180 (Richmond May 21, 1992).
“An ‘action’ and a ‘cause of action’ are quite different. ‘Action’ is defined [as ‘all civil proceedings whether at law, in equity, or statutory in nature’]. We defined ‘cause of action’ . . . as ‘a set of operative facts which under substantive law, may give rise to a right of action’.” Trout v. Commonwealth Transp. Comm’r of Virginia, 241 Va. 69, 73 (1991).
“Nonsuit remains. . . distinctly a weapon in the arsenal of a plaintiff.” Id. “The effect of a nonsuit is simply to put an end to the present action, but is no bar to a subsequent action for the same cause.” Gemmell, Inc. v. Svea Fire and Life Ins. Co., 166 Va. 95, 97 (1936). Cf., Virginia Concrete Co. v. Bd. of Sup’rs, 197 Va. 821, 826 (1956). “[T]he only effect of a non-suit is to put an end to the pending litigation without prejudice to either party.” Tysons Toyota, Inc. v. Globe Life Ins. Co., 1994 U.S. App. LEXIS 36692, * 19 (4th Cir. 1994); Winchester Homes, Inc. v. Osmose Wood Preserving, Inc., 37 F.3d 1053, 1058 (4th Cir. 1994); Umphreyville v. Gittins, 2009 U.S. Dist. LEXIS 454, * 5 (W.D. Va. Jan 6, 2009); Monroe v. City of Charlottesville; 2006 U.S. Dist. LEXIS 20027, *5 (W.D. Va. 2006); Poullah v. Rzasa, 75 Va. Cir. 349, 352 (Fairfax Jul. 15, 2008); Cook v. Wayland, 64 Va. Cir. 386, 387 (Waynesboro Apr. 26, 2004); Odeneal v. Thompson, 63 Va. Cir. 71, 73 ( Fairfax Aug. 6, 2003); Green v. Barnes, 54 Va. Cir. 348, 350 (Portsmouth Jan 4. 2001).
Thus in the medical malpractice case of Marshall, Plaintiff’s non-suit of his first action was not a dismissal with prejudice of his underlying cause of action. It simply put an end to that first action without prejudice to Plaintiff pursuing his subsequent action on the same cause of action.
]]> The doctrine of autre (other) action presupposes that two identical action still are pending. “Two courts, at one and the same time, cannot entertain suits over the same subject matter and adjudicate the rights of the same persons there to contrary to the rule that there must not be a double investigation of the same matter.” Griffin v. Birkhead, 84 Va. 612, 616 (1888)(emphasis added). “The pendency of one suit may be set up to defeat another for the same matter . . . .” McAllister v. Harman, 97 Va. 543, 548 (1899)(emphasis added). Davis v. Morriss’ Ex’ors, 76 Va. 21, 26 (1881); Simmons v. Afify, 46 Va. 377, 380 (Virginia Beach 1998). “As a general rule the suit in which process is first issued and served has precedence.” Lee v. Lee, 142 Va. 244, 253 (1925). But there are exceptions to the general rule – as in Lee.In the Marshall medical malpractice case, the shortcoming of Defendants is that there are not two suits pending now, and have not been for over a year; since Plaintiff non-suited the first suit and is pursuing only the second timely action. Thus, the doctrine is impertinent given the longstanding procedural posture of Marshall.
If you or a loved one are victim of medical malpractice, vehicle accident, or other personal injury, please contact Avery T. "Sandy" Waterman, Jr., Esq. in Newport News or Williamsburg, Virginia, at 888.881.7881, 757.881.9881 or contact him online.
]]>Sentara’s attorney of record, Ted G. Yoakam, Esq. of Yoakam & Etheridge, PLC in Virginia Beach, Virginia, at hearing characterized Incident Report # 20119 as a blood bank protocol document that was irrelevant to the medical malpractice. But on its face, Sentara’s Incident Report #20119 actually records material factual patient care information that the Virginia Supreme Court opined was discoverable and admissible in its landmark decision, Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), litigated by Plaintiff’s counsel, Avery T. “Sandy” Waterman, Jr., Esq. of Williamsburg and Newport News, Virginia.
Sentara Incident Report # 20119 proves that the exsanguinating patient in Mahone v. Sentara never was transfused the unit of blood she was ordered hours earlier by her doctor due to Sentara nursing staff’s failure to restart an IV site, contributing to patient demise. Among other things, Sentara Incident Report # 20119 also documents the dying patient’s diagnosis (hemolytic anemia, thrombocytopenia) in this ostensibly mysterious case of wrongful death, plus identifies three Sentara employees with pertinent knowledge.
Like most if not all secreted incident reports, Sentara Incident Report # 20119 contains relevant factual patient care information missing from and at variance with Nursing Notes of the limited so-called “patient chart” to which hospitals seek to limit patient access for review. Patient charts are sanitized healthcare industry-wide by the systematic institutional laundering of key harmful patient care facts into incident reports that are segregated from the patient chart (often in computer databases).
Sentara Incident Report #20119 is particularly significant in the medical malpractice lawsuit of Mahone v. Sentara because suspiciously there are no contemporaneous Nursing Notes from 11:05 p.m. through and beyond the patient’s death at 5:38 a.m.. Instead, post-death, from 5:40 a.m. to 9:32 a.m., a Sentara L.P.N. created fifteen (15) Notes and one (1) Addendum of purportedly what happened from 12:15 a.m. to 4:10 a.m.
]]> Sentara Incident Report # 20119 also is significant for evincing that Sentara, like Riverside Hospital, has abandoned use of the longstanding preprinted paper forms of incident report and instead uses a system of direct entry into its computer database by remote terminals. The Riverside system facilitates modifying entries ex post facto and it claiming that discreet factual information retrievable for each individual patient supposedly is part of an undifferentiated “quality assurance” computer database.In Sentara’s brief in the Mahone v. Sentara wrongful death proceeding, Ted G. Yoakam, Esq. mischaracterized the Virginia Supreme Court’s seminal Riverside opinion as “a limited holding that ‘incident reports’ that described the patients care after the patient had died were not documents generated by a committee referred in Va. Code § 8.01-581.17”. See, Sentara Memorandum in Support at 5. In fact, Riverside upheld the discoverability and the admissibility of an incident report (regardless whether death occurred) and even of ostensible “quality assurance” database printouts. 272 Va. at 530-534.
Ted G. Yoakam, Esq. instead relied chiefly on the maverick 2008 decision of a lone circuit court judge in Mejia-Arevalo v. INOVA. See, Sentara Memorandum in Support at 5-6. However, Mejia-Arevalo was a “policies and procedures” case, not an “incident report” one; and it summarily rejected the cogent pro-disclosure opinion of Justice Lemons in Stevens v. Lemmie, 40 Va. Cir. 499, 507-508 (Petersburg 1996) that is consistent with the Virginia Supreme Court’s rationale in Riverside in 2006.
Further, Ted G. Yoakam, Esq. on brief represented that Plaintiff’s counsel previously had been denied incident reports in other circuit courts, and cited Marshall v. Sentara in Williamsburg. See, Sentara’s Memorandum in Support at 4. In truth, Mr. Waterman has not been denied an incident report in general; was not denied one in Marshall v. Sentara in particular (because Sentara claimed it has destroyed that incident report); and in Marshall, the Court agreed to entertain a Motion for Reconsideration on the computerized committee materials it did consider.
Mahone v. Sentara in Suffolk is the third medical malpractice suit in which Williamsburg/Newport News attorney, Mr. Waterman, has obtained a telltale Incident Report over the objection of a Sentara hospital. Prior cases are Justis v. Sentara in Williamsburg in 2008 and Garner v. Sentara in Norfolk in 2001.
The hearing transcript in the wrongful death case of Mahone v. Sentara should be available in two weeks, so this blog posting may be supplemented accordingly. Meanwhile, Sentara Incident Report # 20119 follows, a true copy of which in original form will be forwarded to you upon request:
RUN DATE: 07/29/08 OBICI PROGRAMMING DIRECTORY
RUN TIME: 1314 EVENT - complete list
Incident#: 20119
Category PATIESTT, STUDENT, VOLUNTEER, VISITOR, ETC.
Type PROCEDURE/PRACTICE VARIANCE
Event Dt 07/03/07 @ 0430
Entered 07/03/07 @ 0630
by SHARON S PRESSON RN
Name MADISON, FELICA T MR# 211457 DOB 10/27/75 Sx F
Add 415 WOODRUFF ST SUFFOLK VA 23434 Unit 2-INTENSIVE CARE
Phone# 539-8145 Loc 2ICU
Dx HEMOLYTIC ANEMIA, THROMBOCYTOPENIA Phys FORMAN, JEFFREY D. M.D.
Description
PT HAD CHANGE IN STATUS ON FLOOR. PT BROUGHT TO ICU WITH 1 UNIT OF PRBC'S NOT SPIKED OR INFUSING, AND NON-FUNCTIONING IV LOCK IN RT HAND. BY THE TIME IV ACCESS WAS ESTABLISHED, IT WAS TOO LATE TO TRANSFUSE PRBC'S AND PT ARRESTED 15 MIN AFTER ARRIVAL. EXPIRED BLOOD RETURNED TO LAB.
OUTCOME/IMPACT of EVENT: UNKNOWN
EFFECT/CORRECTIVE ACTION:
Departments
1-MEDICAL/ONCOLOGY
QA/Risk Management
2-INTENSIVE CARE UNIT
FOLLOW-UP
CATHY GRAY RN
Pt was admitted to let floor at 1740. A unit of blood had already been infused. The IV went bad multiple attempts were made to restart the IV 0300 The nursing supervisor also attempted IV. MD made aware that they could not get an IV site. MD ordered to have patient moved to ICU
PAT MANIX
Task: Please provide follow-up Status: REQD
PATIENT WAS CREDITED FOR THE UNIT AND THE UNIT WAS DESTROYED. IF THE NURSE HAD RETURNED THE UNIT AS SOON AS SHE WAS UNABLE TO START, THE UNIT MAY HAVE BEEN SAVED.
On February 8, 2010, this post was followed and blogged by BenGlassLaw.com under the headline "Shocking Attempt by Sentara Obici Hospitals to Play 'Hide the Ball'." Post and forward to friends, colleagues, and victims.
If you or a loved one are victim of medical malpractice, wrongful death, or other personal injury, please contact Avery T. "Sandy" Waterman, Jr., Esq. in Newport News or Williamsburg, Virginia, at 888.881.7881, 757.881.9881 or contact him online.
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