Last week, Mr. Waterman, obtained a six-figure settlement for a local vehicle accident victim. The case is Garrity v. Jones, No. 1341 in Circuit Court for York/Poquoson, Virginia.
The underlying collision in Garrity occurred in Yorktown, Virginia. The vehicle accident victim underwent physical therapy and orthopaedic surgery.
Continue reading "Vehicle: Vehicle Accident Settlement – a Lawyer’s Compromise" »
The consolidated cases in Routson v. Routson involve approximately $200,000.00 in disputed tax-free disability payments, plus roughly $25,000.00 in attorneys fees, costs and expenses. These special cases being decided on cohabitation are Nos. CL09-2283 and CL09-2620 in Circuit Court for York County and Poquoson, Virginia.
“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 Aug. 18, 2009)(unpublished) reh.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).
Continue reading "Virginia: Cohabitation – a Lawyer’s Fees" »
On March 4, 2010, Plaintiff’s three pending Motions were granted at hearing in Marshall v. Moniz, No. CL08-2018 in Circuit Court for York/Poquoson, Virginia. The plaintiff patient alleges medical malpractice and more than $1,000,000.00 in medical bills for which he seeks damages of $12,000,000.00.
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.
The companion cases in Routson v. Routson, Nos. CL09-2283 and CL09-2620 in Circuit Court for York County and Poquoson, Virginia, are consolidated for trial. At issue in these special cases are roughly $200,000.00 in tax-free disability payments, the entitlement to which turns on cohabitation.
Va. Code Ann. §20-109(A) requires proof of cohabitation by “clear and convincing” evidence. But it is well settled that in an action on a Property Settlement Agreement (“PSA”) which does not reference §20-109(A), as in the special case of Routson, “husband’s burden was to prove by a preponderance of the evidence that wife habitually cohabitated with another person in a relationship analogous to a marriage for one year or more, not to prove cohabitation by clear and convincing evidence.” O’Hara v. O’Hara, 45 Va. App. 788, 796 (2005)(reversed, vacated, and remanded for applying the incorrect evidentiary standard).
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.
Continue reading "Virginia: Cohabitation – a Lawyer’s Proof " »
On February 19, 2010, Plaintiff’s Motion for Entry of Order was filed in the medical malpractice case of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County, Virginia. The presiding Judge had requested Plaintiff as prevailing party on three issues on February 9, 2010, to draft and circulate the Order memorializing the hearing; but Defendant’s counsel refused to sign as drafted.
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.
Continue reading "Virginia Medical Malpractice Orders – a Lawyer’s Hearing " »
Garrity v. Jones is a motor vehicle accident lawsuit pending in Circuit Court for York County, Virginia, No. 1341. Significant issues surround the adequacy of pre-trial expert disclosures by the defense.
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.
Continue reading "Virginia Experts: Va. Sup. Ct. Rule 4:1(b)(4)(A)(i) – a Lawyer’s Disclosure" »
On February 22, 2010, plaintiff filed a Motion for Entry of Order for the hearing on February 5, 2010, in Mahone v. Sentara, a wrongful death action, No. CL09-560 in Circuit Court for the City of Suffolk, Virginia. The presiding Judge requested plaintiff as prevailing party at “emergency” hearing to draft and circulate an Order for endorsement by Defendant Sentara’s attorney of record, Ted G. Yoakam, Esq. of Yoakam & Etheridge, PLC in Virginia Beach, Virginia; but Mr. Yoakam declined to sign as drafted.
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.
Continue reading "Virginia Medical Malpractice Orders – a Lawyer’s Motion " »
On February 17, 2010, the Court Reporter transcribed the hearing in the medical malpractice case of Mahone v. Sentara, No. CL09-560 in Circuit Court for the City of Suffolk Virginia. Plaintiff’s counsel requested the transcript to document the proceedings held on February 2, 2010, which Defendant Sentara’s attorney of record, Ted G. Yoakam, Esq., co-founder/managing partner of Yoakam & Etheridge, PLC in Virginia Beach, disputed.
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.
Continue reading "Virginia Medical Malpractice Incident Report – a Lawyer’s Transcript " »
On February 15, 2010, a court reporter transcribed the “emergency” hearing held on February 5, 2010, in Circuit Court for the City of Suffolk, Virginia in the wrongful death case of Mahone v. Sentara, No. CL09-560. Plaintiff’s counsel requested transcription of the proceedings resolved in his favor because he anticipated that Defendant Sentara’s attorney of record, Ted G. Yoakam, Esq., co-founder/managing partner of Yoakam & Etheridge, PLC in Virginia Beach, Virginia, would continue the dispute over Sentara Incident Report # 20119 and resist entry of his comprehensive Order about it.
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.
Continue reading "Virginia Medical Malpractice Incident Report – a Lawyer’s Transcript " »
On February 9, 2010, the medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in Circuit Court for the County of York and the Town of Poquoson, Virginia, was heard on the Defendants’ three dilatory pleadings. Plaintiff seeks $12,000,000.00 in compesatory damages, alleging that various surgery-related acts and/or omissions caused him grievous permanent personal injuries, over $1,000,000.00 in medical expenses, and loss of his lucrative career.
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.
Continue reading "Virginia Medical Malpractice Dilatory Pleadings - a Lawyer’s Hearing" »
Marshall v. Moniz, No. CL08-2018 in York Circuit Court is a medical malpractice action. Defendants have moved to transfer venue to Williamsburg, Virginia.
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.
Continue reading "Virginia: Medical Malpractice Va. Code Ann. §8.01-265 – a Lawyer’s Venue" »
Marshall v. Moniz is a medical malpractice lawsuit pending in Circuit Court for York County, Virginia. Defendants have filed a Demurrer to strike Plaintiff’s “catch-all” allegation of negligence: “Such other tortious acts and omissions as may be investigated, discovered and proved”.
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”.
Continue reading "Virginia: Medical Malpractice – a Lawyer’s Pleading" »
On February 4, 2010, Defendant Sentara Hospitals filed Emergency Petition for Immediate Relief in the medical malpractice case of Mahone v. Sentara, No. CL09-560 in Circuit Court for the City of Suffolk, Virginia. Sentara was represented by its attorney of record, Ted G. Yoakam, Esq. of Yoakam & Etheridge, PLC in Virginia Beach, Virginia, and its Risk Manager, Ms. Amanda Goodwin, as its corporate designee.
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.
Continue reading "Virginia Medical Malpractice Incident Report – a Lawyer’s Petition" »
The medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in York Circuit Court, initially was filed in Williamsburg/James City County and non-suited after the refilling in York County, Virginia. Defendants have filed a Special Plea and Demurrer for dismissal with prejudice based on that litigation history.
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.
Continue reading "Virginia: Medical Malpractice – a Lawyer’s Non-Suit" »
Avoiding adverse ruling at hearing on February 2, 2010, Sentara Obici Hospitals capitulated after oral argument and produced so-called “incident report” to Plaintiff that it had claimed was privileged in a medical malpractice action. The case is Mahone v. Sentara Hospitals, No. CL09-560 in Circuit Court for the City of Suffolk, Virginia, which alleges wrongful death of a patient who bled to death during her overnight stay at Sentara Louise Obici Memorial Hospital.
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.
Continue reading "Virginia: Medical Malpractice Incident Report – a Lawyer’s Production" »
On January 14, 2010, the brain injury case of Gagnon v. Burns was reconsidered in Circuit Court for Gloucester County, Virginia. Sovereign immunity still was denied the Defendant Assistant Principal.
The Judge reaffirmed his findings that the testimony of Shannon Diaz and other witnesses of Plaintiffs was more persuasive than the testimony of all Defendants; that the act of notifying school security of the reported impending physical attack of Greg Gagnon or otherwise investigating the report of Shannon Diaz omitted by Assistant Principal Burns was a ministerial act; and that the Plaintiffs have made out a sufficient case that Defendant Burns’ act constituted negligence in the non-performance of that ministerial act. The Judge also reaffirmed the admission into evidence of the deposition of a key independent eye witness, Shannon Diaz.
The brain injury case was scheduled for trial by jury on all issues for the week of August 16-20, 2010, at Gloucester Courthouse. Meanwhile the parties resume discovery.
Continue reading "Virginia: Sovereign Immunity – a Lawyer’s Reconsideration" »
In the Virginia brain injury case of Gagnon v. Burns, No. CL08-572 in Gloucester Circuit Court, the defendant assistant principal alternatively claims sovereign immunity by statute, Va. Code Ann. §8.01-220.1:2(A). Defendant argues that “teachers” in that statute actually means “principals” and “assistant principals” too.
It is hornbook law that statutes in general in derogation of the common law are to be construed narrowly. Further, it also is hornbook law that immunities in particular are disfavored and must be construed narrowly. §8.01-220.1:2(A) is no exception to those tandem rules of construction.
No jurisprudence construes §8.01-220.1:2(A). Tazewell County School Bd. v. Brown, 267 Va. 150 (2004), cited by the brain injury defendant, actually involved Va. Code Ann. §22.1-308, not §8.01-220.1:2(A). His reliance on 16 M.J. Schools §18 at 365 to extend “teachers” to “principals” likewise is misplaced: because Mitchie’s cites Tazewell County as its only Virginia jurisprudence on the definitional point, it necessarily falls with Tazewell County.
Tazewell County does not define “teachers” as including “principals” for all purposes. Tazewell County delineated that under the State Grievance Procedure “teacher” meant only classroom instructors and other non-supervisory personnel (non-principals) under Part II, while “teacher” expressly was broadened to include principals only under Part III. Id. at 159 and 162. Thus, since §8.01-220.1:2(A) does not expressly define “teachers” broadly to cover supervisory personnel like principals, §8.01-222.1:2(A) is analogous to Part II versus Part III of §22.1;308, i.e., covers classroom instructors versus principals too.
Further, other statutes clearly distinguish between “teachers,” on the one hand, and “assistant principals” or “principals,” on the other hand. For example, Va. Code Ann. §22.1-293 applies only to principals and assistant principals, while Va. Code Ann. §22.1-295 is limited to teachers.
Continue reading "Virginia: Statutory Sovereign Immunity – a Lawyer’s Analysis" »
In the brain injury case of Gagnon v. Burns, No. CL08-572 in Gloucester, Virginia, plaintiffs introduced as evidence at trail on sovereign immunity the de bene esse deposition of a key witness taken in the initial proceeding that was non-suited. Defendant Burns objected, referring generally to Va. Sup. Ct. Rule 7; but the Virginia Supreme Court has ruled on point in favor of Plaintiffs.
“[P]rior testimony is admissible if the court is satisfied: (1) that the party against whom the evidence is offered, or his privy, was a part to the former trial; (2) that the issue is substantially the same in the two cases; (3) that the witness who proposes to testify to the former evidence is able to state it with satisfactory correctness; and (4) that a sufficient reason is shown why the original witness is not produced.” Gray v. Graham, 231 Va. 1, 5 (1986). The salutary rule of Gray is followed by its progeny. E.g., Morgan v. Commonwealth, 50 Va. App. 369, 376 (2007); Jones v. Commonwealth, 22 Va. App. 46, 51 (1996); and Commonwealth Transp. Comm’r v. Wee Folks Nursery, Inc., 371 Va. Cir. 463, 464 (1996).”
Continue reading "Virginia: Prior Witness Testimony – a Lawyer’s Evidence" »
In Gagnon v. Burns, No. 049352 in Gloucester Circuit Court, the brain injury victim alleges gross negligence as an exception to the sovereign immunity claimed by the defendant Assistant Principal. Plaintiffs allege that his failure to exercise any prudence, diligence or care for the safety of the student constitutes gross negligence as a matter of law.
“Gross negligence” is “that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of [another].” Koffman v. Garnett, 265 Va. 12, 15 (2003). “A claim of gross negligence, which involves the ‘absence of slight diligence, or the want of even scant care,’ will not lie if the defendant exercised some degree of care with regard to the plaintiff. Colby v. Boyden, 241 Va. 125, 133, 400 S.E. 2d 184, 189 (1991).” Whitley v. Commonwealth, 260 Va. 482, 490 (2000). Jennings v. Hart, 602 F. Supp. 2d 754, 758 n.6 (W.D. Va. 2009)(Virginia law).
Thus, the Court in Colby held there was no gross negligence where the trial court found defendant “exercised ‘some degree’ of care for the safety of others.” 241 Va. at 133 (emphasis added). Likewise in Whitley there was no gross negligence where the trial court’s “findings show that defendants exercised at least some degree of care” toward the victim. 260 Va. at 490.
Conversely in Jennings, however, the Court ruled defendants were not entitled to sovereign immunity for “any alleged acts of negligence [gross or simple]” based on defendants having showed no degree of care for the victim. 602 F. Supp. 2d at 759 (emphasis added). “Holding otherwise would imply that [defendants] have complete discretion to ignore… and disregard….” Id. (denying sovereign immunity on Rule 12(b)(6) motion).
Moreover, the case cited by Gloucester Circuit Court at hearing on December 16, 2009, B.M.H. v. The School Board of the City of Chesapeake, Virginia, 833 F. Supp. 560 (E.D. Va. 1993)(Virginia law), supports Plaintiffs’ position too. In B.M.H., school teachers “failed to take action [about a threat…] even though they had stated an intention to do so”; and this allegation alone sufficed to support the claim of gross negligence. Id. at 562, 574.
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Continue reading "Virginia: Gross Negligence – a Lawyer’s Evidence" »
In the brain injury case of Gagnon v. Burns, No. CL07-557-00 in Gloucester, Virginia, plaintiffs argue that defendant’s conduct in destroying evidence and approaching witnesses should be considered some evidence of gross negligence. The Virginia Supreme Court has declared that “a party’s conduct, ‘so far as it indicates his own belief in the weakness of his cause,’ is admissible as an admission against interest.” Gray v. Graham, 231 Va. 1, 9-10 (1986)(avoidance of being photographed). Such “acts or conduct of a party may be admitted into evidence, because they show a ‘consciousness of guilt’ and thus constitute, in effect, an admission by conduct. Charles E. Friend, The Law of Evidence in Virginia, §18-49(9)(1)(6th ed. 2003).” Commonwealth v. Wallace, 70 Va. Cir. 341, 343 (Portsmouth Mar. 29, 2006)(subsequent imposing statements to a prospective witness).
Continue reading "Virginia: Conduct as an Admission – a Lawyer’s Evidence" »
On December 18, 2009, The Daily Press again marqueed Hampton Roads attorney, Avery T. “Sandy” Waterman, Jr., Esq., under a headline entitled, “Judge says assistant principal negligent.” Mr. Waterman prevailed in a brain injury case in Gloucester Circuit Court, Gagnon v. Burns, No. CL08-572.
The article reports the witnesses’ testimony and judge’s ruling adverse to the Defendant Assistant Principal in this special case. It also notes that Defendant Burns has $6,000,000.00 of insurance coverage in Gagnon.
Continue reading "Virginia Brain Injury: Separate Liability Trial – a Lawyer’s Victory" »
On December 16, 2009, Gloucester Circuit Court heard the Demurrer and the Plea in Bar of Virginia sovereign immunity in the brain injury case of Gagnon v. Burns, No.
CL08-572. At 9:15 p.m., after a 12-hour trial, Judge Long ruled in favor of Plaintiffs, who are represented by Avery T. “Sandy” Waterman, Jr., Esq.
The only witnesses Defendant Burns called in this special case besides himself were his self-interested co-Defendants: James Newsome, the admitted attacker who was prosecuted criminally for his offense against the victim; and his sister, Christine Newsome, who at least one witness says egged on her brother to punch the victim, Greg Gagnon. The self-serving accounts of the Newsomes about a supposedly demeaning profane remark being made by the victim were refuted by a non-party witness for Plaintiffs, fellow student eyewitness, Ronnie Miller; and by James Newsome’s own contemporaneous signed statement admitted into evidence, which showed no such remark at all.
Conversely, Plaintiffs called 10 witnesses on their behalf, mostly non-parties. Five witnesses testified that in Gagnon Assistant Principal Burns at Gloucester High School (“GHS”) admitted his fault to each of them independently in strong terms shortly after the attack. Former student Shannon Diaz testified Burns “apologized for dropping the ball”. Gloucester County Deputy Carwell testified Burns admitted, “I screwed up.” Gloucester County Sergeant Shuster testified Burns admitted, “I made a big mistake. I thought I had told you guys about it.” The brain injury victim’s father testified Burns admitted, “I feel I owe you an apology because I ‘dropped the ball’. I could have done something to stop this but didn’t.” The victim’s mother testified Burns admitted, “I know that you know that I talked to Shannon Diaz, and I am very sorry because I dropped the ball.”
Further, Burns admitted in Gagnon that he disposed of his handwritten note about his meeting with Diaz and his school calendar for the day of the attack. Plaintiffs asserted that was contemporaneous evidence spoliation in the special case.
In closing, Mr. Waterman stressed that Burns simply had failed to perform a “ministerial act,” i.e., a “no-brainer” (requiring no real discretion). He analogized that Burns ignoring the warning and brain injury following was like an Emergency Room doctor failing to address chest pains as a potential heart attack and instead wrongfully blowing them off summarily as only indigestion.
The Gloucester Court in Gagnon sat as trier of fact without a jury, including as to the issues of negligence of Burns; as requested by Defendant and Plaintiffs. The Court believed that the most persuasive authority was B.M.H. v. The School Board of the City of Chesapeake, Virginia, 833 F.Supp. 560 (E.D.Va. 1993)(Virginia law), and applied the four-factor test of Virginia sovereign immunity enunciated in Messina v. Burden, 228 Va. 301 (1984), relied upon therein. In this special case, only the test’s fourth prong was in issue: whether the act was discretionary or ministerial and whether there was any gross or simple negligence.
The Gagnon Court expressly found the testimony of Diaz and other witnesses of Plaintiffs more credible than the testimony of Burns and his Co-Defendant witnesses; found that the act of notifying GHS Security of the reported impending physical altercation omitted by Burns was a ministerial act; found that Burns was guilty of simple negligence, but not gross negligence, in the non-performance of that ministerial act; and found that the aforesaid findings are dispositive and preclusive as to the liability of Burns to Plaintiffs on the Amended Complaint. The Court overruled the Demurrer; denied the Plea in Bar; and ordered that Plaintiffs’ cause against Burns be set for separate trial forthwith only on the amount of damages for the brain injury as the sole remaining issue.
The Court denied Burns’ oral post-trial motion to strike the de bene esse deposition in this special case, which deposition was taken in the non-suited predecessor suit of a witness unavailable for this trial, Diaz. Burns participated in that companion suit deposition through his same counsel of record as in Gagnon.
Fortunately for Burns, as Assistant Principal at GHS, he enjoys $6,000,000.00 of liability insurance coverage for negligence in Gagnon. He is covered by a $1,000,000.00 liability policy, plus a $5,000,000.00 excess policy, for Gagnon’s brain injury.
Continue reading "Virginia: Sovereign Immunity – a Lawyer’s Trial" »
On November 17, 2009, Avery T. “Sandy” Waterman, Jr., Esq. filed a wrongful death suit in Richmond Circuit Court. Defendants are a Trooper and the Superintendant of the Virginia State Police.
The alleged wrongful death occurred when at least one Trooper fatally shot multiple times at close range a motorist who was trying to flee an interstate stop and arrest in Stafford County, Virginia.
Permissive Court venue is based on at least one Defendant having his place of business in Richmond. Plaintiff predicates his wrongful death claims under Virginia statute, including the Virginia Tort Claims Act; and under federal statute, including Section 1983 violation of civil rights for excessive use of deadly force.
Continue reading "Virginia: Wrongful Death – a Lawyer’s Filing" »
On December 10, 2009, the Chief Judge of Hampton Circuit Court entered Contempt Order against Ricky E. Carr after supplemental hearing for reconsideration at his request. In the special case of Carr v. Carr, No. 05-378, Mr. Carr was ordered to pay in full arrearages of $40,318.85 by February 26, 2010, under penalty of serving 10 days in jail, being fined $250.00, and still having to pay his arrearages.
The week before hearing in Carr, Mr. Carr interposed the following in a vain attempt to avoid entry of the Order: Notice to Strike, Amended Notice to Strike, two Motions to Quash, and Notice and Motion to Show Cause. Moreover, at hearing of his special case, Mr. Carr unsuccessfully sought to claim credit for $24,000.00 of attorney fees that he actually had not paid!
If you or a loved one are victim are the victim of fraud or 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 November 24, 2009, Avery T. “Sandy” Waterman, Jr., Esq. settled a Virginia wrongful death suit arising out of a vehicular accident. The compromise was reached through mediation in Suffolk Circuit Court.
The wrongful death case is Burr v. R.C. Paving, No. CL08-947. Plaintiff’s deceased was a guest in an uninspected passenger vehicle rear-ended by a dump truck when traffic slowed because of a short-bed pickup truck spilling its unsecured load onto the undivided state highway.
As all wrongful death cases in Virginia, the Court in Burr must approve the dollar amount of the compromise settlement and its apportionment among statutory beneficiaries. Also by Virginia statute, a Committee must be appointed for one of the surviving siblings, because he is incarcerated; and there must be newspaper publication for another surviving sibling, because his whereabouts are unknown.
Continue reading "Virginia: Wrongful Death – a Lawyer’s Settlement" »
On October 14, 2009, Newport News Circuit Court denied defendants’ Motion for Reconsideration in this medical malpractice case. In Andleton v. Connolly, No. 31197, the Judge construed Va. Code Ann. §8.01-335(B) on a matter of first impression.
Continue reading "Virginia: Ca. Code Ann. §8.01-355(B) – a Lawyer’s Reconsideration" »
On October 13, 2009, Gloucester Circuit Court ruled Plaintiffs were entitled to have their expert review first-hand the Defendant’s disputed computer documents and history of creation, modification, etc. The case is Gagnon v. Burns, involving a brain injury victim.
The Court also imposed deadlines in this brain injury case for document production, expert review and identification, and discovery depositions. Hearing on sovereign immunity is scheduled for December 16, 2009.
Continue reading "Virginia Brain Injury: Discovery – a Lawyer’s Expert" »
By letter dated October 9, 2009, Rev. Ricky E. Carr sought Hampton Circuit Court to reconsider the contempt finding and sanctions against him. The Chief Judge ruled against Rev. Carr on October 8, 2009, in the special case of Carr v. Carr, No. 05-378.
Rev. Carr has not accepted adverse Court rulings previously either. In his special case, he unsuccessfully sought modification of the support order against him in Hampton Circuit Court, and thereafter he unsuccessfully has sought rehearing en banc of the per curiam affirmance against him in the Virginia Court of Appeals.
Continue reading "Virginia Circuit Court: Contempt – a Lawyer’s Reconsideration" »
On October 8, 2009, Hampton Circuit Court found Rev. Ricky E. Carr in contempt of court for chronic failure to pay court-ordered spousal support and attorney’s fees. The special case is Carr v. Carr, No. 05-378.
Rev. Carr was granted leave to purge himself of his contempt by being current on all future support and attorney's fees obligations and by paying his entire arrearage by February 26, 2010. Otherwise, he faces going to jail for up to 10 days and a fine of $250.00.
Continue reading "Virginia Circuit Court: Contempt – a Lawyer’s Finding" »
On September, 30, 2009, Avery T. “Sandy” Waterman, Jr., Esq. obtained an Amended Judgment for $500,000.00 in a §1983 civil rights suit for wrongful death. It was entered pursuant to Fed. R. Civ. P. 52(b) in Webb v. Stevens, no. 5:05-CV-33-BO(1) of the United States District for the Eastern District of North Carolina in the Western Division at Raleigh, North Carolina.
Continue reading "Federal Wrongful Death Suit Judgment – a Lawyer’s Amendment (FRCP 52)" »
On September, 23, 2009, Avery T. “Sandy” Waterman, Jr., Esq. again prevailed on a Motion to Compel in Circuit Court for York County in Routson v. Routson, No. CL09-002283-0. In that special case, the Court ruled St. Luke’s United Methodist Church was required to produce all attendance and donation materials responsive to a Subpoena Duces Tecum.
Continue reading "Virginia Circuit Court: Church Discovery – a Lawyer’s Documentation" »
On September 22, 2009, Avery T. "Sandy" Waterman, Jr., Esq. again prevailed before the Virginia Court of Appeals, as it denied the Petition for Rehearing En Banc of Reverend Carr. That renders the decisions adverse to him in this special case of the appellate court and the trial court before it final and unappealable.
This special case is Ricky E. Carr v. Joanne O. Carr, No. 0096-09-1. It still is pending in Circuit Court for the City of Hampton.
Continue reading "Virginia Appeals Court: Petition – a Lawyer’s Denial " »
On September 16, 2009, Newport News Circuit Court denied a Motion to Dismiss in a medical malpractice case of first impression, Andleton v. Connolly, No. 31197. It construed Va. Code Ann. §8.01-335(B).
Section 8.01-335(B) permits reinstatement of a plaintiff’s case within one year of its dismissal under that statute for three-plus years of inactivity. In Andleton, the Court made new law in holding that the claimant was entitled to reinstate within one year of dismissal under §8.01-335(B) even though the statute of limitation for filing the underlying medical malpractice claim had run at the time.
Continue reading "Virginia: Va. Code Ann. §8.01-335(B) – a Lawyer’s Construction" »
On September 3, 2009, Avery T. “Sandy” Waterman, Jr., Esq., prevailed on pending Motions in Circuit Court for York County. The lead special case is Gary W. Routson v. Helen E. Routson, No. CL09-002283-00, and its companion case is Helen E. Routson v. Gary W. Routson, No. CL09-002620-00.
The Court ruled that the two special cases should be consolidated. It also ruled that Gary W. Routson entitled to discover records from the out-of-state employer and bank of Helen E. Routson’s betrothed.
Continue reading "Virginia Circuit Court: Consolidation and Discovery – a Lawyer’s Motions" »
On August 28, 2009, Reverend Carr as pro se Appellant petitioned the Virginia Court of Appeals for hearing en banc. He seeks reversal of the appellate court’s per curiam affirmance of the ruling of the Hampton Circuit Court against him in this special cases.
Petitioner to hear en banc are granted sparingly. His Petition is opposed by his ex-wife Appellee.
Continue reading "Virginia Appeals Court: Petition – a Lawyer’s Opposition" »
On August 18, 2009, the Virginia Court of Appeals of Virginia affirmed a special case taken by Avery T. “Sandy” Waterman, Jr., Esq. The opinion is Carr v. Carr, No. 0096-09-1, arising out of Hampton Circuit Court.
In Carr, an adulterous pastor unsuccessfully sought modification of the spousal support and attorney fees award in favor or Mr. Waterman’s client. The appellate court upheld both awards, finding no abuse of discretion in the trial court rejecting the adulterer’s evidence as “incredible” because Mr. Waterman exposed his claimed income reduction was “voluntary and orchestrated by him”.
Continue reading "Virginia Appeals Court: Opinion – a Lawyer’s Affirmation" »
In medical malpractice suits alleging wrongful death and brain injury, Circuit Court for the City of Newport News, Virginia, has granted plaintiffs leave to amend their Complaints, including after the statute of limitation has run. The cases are Licare v. Riverside Health System, No. 0702452T-01, and Morel v. Mary Immaculate Nursing Center, Inc., No. CL0703905P-03.
Both medical malpractice decisions were predicted on three independent grounds: (1) Plaintiff not being provided all factual patient care records and papers voluntarily; (2) Plaintiff being delayed by defense pleading; and (3) Plaintiff having originally alleged generally “such other tortious acts and/or omissions as may be investigated, discovered and proved”. Orders were entered in the wrongful death case of Licare on February 1, 2008, and in the brain injury case of Morel on September 2, 2008.
Continue reading "Virginia Medical Malpractice – a Lawyer’s Amendments" »
On June 9, 2009, Gloucester Circuit Court ordered over Objection discovery of various person financial records. The Order was entered on June 22, 2009, in a breach of contract case, Altizer.
Continue reading "Virginia Contract Breach: Discovery - a Lawyer’s Financials" »
On May 28, 2009, Gloucester Circuit Court granted over Objection the Plaintiff’s Motion to amend their complaint and to depose the primary Defendant for additional time. The case, Gagnon v. Burns, involves brain injury to a student attacked at Gloucester High School.
Continue reading "Virginia Brain Injury: Discovery - a Lawyer’s Deposition" »
On May 8, 2009, Gloucester Circuit Court granted the Motion for Reconsideration of a brain injury plaintiff. The Court Order entered on May 28, 2009, required Gloucester High School to produce the office computer of the defendant Assistant Principal.
Previously the plaintiff brain injury victim had been denied discovery of the defendant’s computer. The case is Gagnon v. Burns.
Continue reading "Virginia Brain Injury: Discovery – a Lawyer’s Computer" »
Virginia has codified driver liability for personal injury and/or wrongful death of a guest passenger. “Any person transported by the owner or operator of a motor vehicle as a guest without payment for such transportation and any personal representatives of any such guest so transported shall be entitled to recover damages against such owner or operator for death or injuries to the person or property of such guest resulting from the negligent operation of such motor vehicle.” Va. Code Ann. §8.01-63.
However, the Virginia statute does not render a negligent driver absolutely liable for death or injury to his guest passenger in a vehicle accident. §8.01-63 “does not limit any defense otherwise available to the owner or operator”. Id.
Continue reading "Virginia Auto Accident: Passenger Death or Injury – a Lawyer’s Liability" »
In Virginia, a driver in a vehicle accident causing only damage to unattended property must stop at the scene, make a reasonable effort to find the property owner or custodian, and report his identification. Va. Code Ann. §46.2-896. If the owner or custodian is not found, the driver must leave a conspicuous note at the scene and report the vehicle accident in writing within 24 hours to the state police or local law-enforcement agency. Id.
If injuries sustained in the vehicle accident prevent the driver from complying with the foregoing, the driver must report as soon as reasonably possible thereafter. Id. However, if the driver fails to report as required, then every passenger 16 years of age or older has a duty to report within 24 hours to the state police or local law-enforcement agency. §46.2-897.
Continue reading "Virginia Auto Accident : Unattended Property Damage – a Lawyer’s Reporting " »
In Virginia, a passenger in a vehicle accident is responsible for reporting if the driver fails to stop and report the resulting death, personal injury or property damage. Va. Code Ann. §46:2-895. The duty applies to a passenger 16 years of age or older who has knowledge of the vehicle accident.
Such a passenger has 24 hours from the vehicle accident to report to the state police or local law-enforcement agency. The passenger must report his identity and other vehicle accident information known. Id.
In Virginia, a driver involved in any vehicle accident “in which a person is killed or injured or in which an attended vehicle or other attended property is damaged shall immediately stop as close to the scene of the accident as possible without obstructing traffic”. Va. Code Ann. §46:2-894. Any such driver must provide his identification to the state police, a local law-enforcement agency, the person struck and injured, the driver or occupant of another involved vehicle, or the custodian of damaged property; and also shall “render reasonable assistance to any person injured in such accident, including taking such injured person to a physician, surgeon, or hospital if it is apparent that medical treatment is necessary or is requested by the injured person”. Id.
If his own vehicle accident injuries prevent immediate compliance with the foregoing, as soon as reasonably possible the driver shall report his identification to the state police or local law-enforcement agency and make a reasonable effort to locate the person struck, another involved vehicle driver or occupant, or the damaged property custodian. Violation constitutes a class 5 felony if a vehicle accident results in death, personal injury, or at least $1,000.00 property damage; and a class 1 misdemeanor if it only causes less than $1,000.00 property damage.
Continue reading "Virginia Auto Accident: Death, Injury and Damage Stop – a Lawyer’s Reporting" »
Va. Code Ann. §46.2-371 mandates: “The driver of any vehicle involved in an accident resulting in injury to or death of any person, or some person acting for him, shall immediately give notice of the accident to a law-enforcement officer. A willful failure to make the report required in this section shall constitute a Class 4 misdemeanor.”
Immediate auto accident reporting is important to all Virginia victims of wrongful death and personal injury as a practical matter too. Prompt law-enforcement response tends to identify witnesses, preserve evidence, note conditions, etc.
Va. Code Ann. §46.2-376 provides, “The person in charge of any garage or repair shop to which is brought a motor vehicle (i) that shows evidence of having been involved in a serious motor auto accident or (ii) with evidence of bloodstains shall report to the nearest police station or to the State Police within twenty-four hours after the motor vehicle is received, giving the engine number, registration number and the name and address of the owner or operator of the vehicle if known.”
Hence perpetrators and victims of motor vehicle accidents in Virginia alike should expect garage men and other repairmen to report serious motor vehicle damage to law-enforcement authorities promptly. Such third party reporting obviously can expose vehicle drivers to criminal liability under §46.2-371 for not reporting a vehicle accident resulting in injury or death to a law-enforcement officer first.
In vehicle accident cases, Virginia permits proof of vehicle property damages by affidavit. That is an exception to the general hearsay rule against affidavits.
“[E]vidence to [recover motor vehicle] damages may be presented by an itemized estimate or appraisal sworn to by a person who also makes oath (i) that he is a motor vehicle repairman, estimator or appraiser qualified to determine the amount of such damage or diminution in value; (ii) as to the approximate length of time that he has engaged in such work; and (iii) as to the trade name and address of his business and employer.” Va. Code Ann. §8.01-416(A). However, when the vehicle damages are in excess of $1,000.00, a true copy of the affidavit must be “mailed or delivered to the adverse party or his counsel not less than seven days prior to the date fixed for trial”. Id.
Continue reading "Virginia Auto Accident: Property Damages Proof – a Lawyer’s Affidavit" »
On April 18, 2008, the Virginia Supreme Court addressed the admissibility of “reliable authority” under Va. Code Ann. §8.01-401.1. The medical malpractice case is Bostic v. About Women OB/GYN, P.C., 275 Va. 567 (2008).
In Bostic, defense counsel read article quotes and questioned his client about the same while on the stand as a fact witness. Defense counsel overcame plaintiff’s objection by representing that the defense expert subsequently would lay the necessary evidentiary foundation for the article. Id. at 572-573.
The Virginia Supreme Court in Bostic recounted that the 1994 Ammendment to §8.01-401.1 inserted “two preconditions to the admission of hearsay expert opinions as substantive evidence on direct examination: First, the testifying witness must have ‘relied upon’ the statements contained in the published treatises; Second, the statements must be established as ‘a reliable authority’ by testimony or by stipulation.” Id. at 576. “The statutory term means that the witness must testify that he relied on the article in forming his opinion….” Id. at 577.
Thus, in Bostic the defendant’s foundation was insufficient where her medical malpractice expert accepted the article “only partially” and was “candidly uncertain”. Id. Moreover, the Virginia Supreme Court ruled that plaintiff’s request for a cautionary instruction after that expert’s insufficient testimony was not too late, where plaintiff had objected to the article when first introduced. Id. at 577-578 (reversing and remanding defense verdict).
Continue reading "Virginia Medical Malpractice: VSC Reliable Authority – a Lawyer’s Usage" »
On June 6, 2008, the Virginia Supreme Court addressed the superseding intervening cause instruction. The medical malpractice case of wrongful death is Williams v. Le, 276 Va. 161 (2008).
In Williams, the defendant radiologist failed to communicate directly to the treating physician a positive Dopplar ultrasound, and the patient later died from pulmonary embolism. Asserting arguendo that the alleged proximate causation of any failure to communicate directly was broken completely by the treating physician’s subsequent failure to read the diagnostic report, the defendant radiologist obtained a jury instruction on superseding intervening cause.
The Virginia Supreme Court in Williams delineated for medical malpractice cases: “In order to relieve a defendant of liability for his negligent act, the negligence intervening between the defendant’s negligent act and the injury must so entirely supersede the operation of the defendant’s negligence that it alone, without any contributing negligence of the defendant in the slightest degree, causes the injury.” Id. at 167. But an “intervening cause does not operate to exempt a defendant from liability if that cause is put into operation by the defendant’s wrongful act or omission.” Id.
“On this record,” observed the Virginia Supreme Court in Williams, “it cannot be said that Dr. Le’s alleged negligence was not contributing ‘in the slightest degree’ to the death of Williams. The trial court therefore erred in granting the superseding intervening causation instruction.” Id. at167-168 (reversing and remanding defense verdict).
On June 6, 2008, the Virginia Supreme Court upheld a medical malpractice verdict for roughly $100,000.00 unsupported by a medical expert. The case is Webb v. Smith, 276 Va. 305 (2008).
The Virginia Supreme Court in Webb reiterated that “in medical malpractice cases, ‘expert testimony is ordinarily necessary to establish the appropriate standard of care, to establish a deviation from the standard, and to establish that such a deviation from the proximate cause of the claimed damages’.” Id. at 308. “Exceptions to this rule exist only in ‘those rare cases in which a healthcare provider’s act or omission is clearly negligent within the common knowledge of laymen’.” Id.
Such a “rare case” involves the medical malpractice doctrine of res ipsa loquitur. That translates to “the thing speaks for itself”.
In Webb, a surgeon was supposed to perform a hysterectomy and a bilateral salpingo oophorectomy, but simply forgot to perform the latter. In upholding the medical malpractice award, the Virginia Supreme Court concluded in Webb: “A reasonably intelligent juror did not need an expert to explain why Dr. Smith’s negligence was the proximate cause of Webb’s damages because the issue of causation was within the common knowledge of laymen.” Id.
Continue reading "Virginia Medical Malpractice: VSC Res Ipsa Loquitur – a Lawyer’s Sufficiency" »
On October 31, 2008, the Virginia Supreme Court decided issues of physician-patient relationship and damages proximate causation. The “wrongful birth” medical malpractice case is Fruiterman v. Granata, 276 Va. 629 (2008).
In Fruiterman, the plaintiff mother claimed medical malpractice for her Ob/Gyn failing to inform her about first trimester testing for genetic defects for which she would have elected to terminate her pregnancy. The plaintiff father in Fruiterman made a parallel claim. Id. at 633.
The Virginia Supreme Court dismissed the mother’s medical malpractice claim for her failing to prove proximate causation by expert testimony. Specifically, she “did not prove to a reasonably degree of medical probability that, if she had undergone CVS, the result would have shown the chromosomal abnormality indicative of Down syndrome.” Id. at 638.
Additionally, the Virginia Supreme Court that the father failed to prove the requisite physician-patient relationship requisite for a medical malpractice claim, since he never entrusted, and the Ob/Gyn never accepted, his treatment. Id. at 644. Significantly, however, Fruiterman may leave open the possibility of a medical malpractice claim by a father if and to the extent that a Ob/Gyn advised “as a couple about genetic counseling or … recommend[ed] genetic screening tests that either [the father] alone or both of them would need to undergo. Id.
Continue reading "Virginia Medical Malpractice: VSC Wrongful Birth – a Lawyer’s Insufficiency" »
On January 16, 2009, the Virginia Supreme Court handed down an opinion on qualification of out-of-state experts pursuant to Va. Code Ann. §8.01-581.20. The medical malpractice case of wrongful death is Jackson v. Qureshi, 277 Va. 114 (2009).
Jackson addressed the statutory presumption, “knowledge” requirement, and “active clinical practice” requirement for medical malpractice standard of care experts. First, the out-of-state expert was presumed to know Virginia’s statewide standard of care by having met the “educational and examination requirements of the statute,” per the “letter from the Commonwealth of Virginia Department of Health Professions”. Id. at 122. Second, the statutory “knowledge” requirement was shown by the out-of-state expert’s “area of qualification and certification” having “certain overlapping and medical practices and similar standards of care” with the defendant’s “area of qualification and certification”; which essentially was established by the out-of-state expert’s own testimony. Id. at 122-123. Third, the out-of-state expert satisfied the statute’s “active clinical practice” requirement where in his “clinical practice the expert performs the procedure at issue and the standard of care for performing the procedure is the same,” with no “minimum threshold amount of time” beyond deminimis being required. Id. at 124-125.
On January 16, 2009, the Virginia Supreme Court resolved a wrongful death action and a survival action for personal injuries. The medical malpractice case is Centra Health, Inc. v. Mullins, 277 Va. 59 (2009).
Centra Health upheld an estate representative maintaining concurrent damage causes of action for wrongful death and for survival for personal injuries through jury verdict. “In this particular [medical malpractice] case, the circuit court correctly determined that compelling an election [prior to or even at trial] would put the administrators in the untenable, and manifestly unjust, position of having to elect between two potentially viable claims, which Centra Health was contesting on separate and independent grounds.” Id. at 79.
Additionally, Centra Health upheld the survival action award of $325,000.00 for personal injury damages as not reflecting any confusion, undue sympathy, or other excessiveness. The Virginia Supreme Court found that the trial court was painstaking in its instructions and that the defendant’s characterization of the personal injuries arising from medical malpractice minimized them unduly. Id. at 81-82.
On April 18, 2008, the Virginia Supreme Court opined on the propriety of a roughly $1,000,000.00 damages award to a surviving spouse arising out of a car accident.The wrongful death case is Wright v. Minnicks, 275 Va. 579 (2008).
In Wright, the surviving spouse was awarded damages for the decedent’s care, treatment and hospitalization, funeral expenses, and loss of income, services, protection, care and assistance; but absolutely nothing for sorrow, mental anguish and solace. Id. at 582. The Virginia Supreme Court held that the zero award for sorrow, mental anguish and solace was not inconsistent or inadequate on the facts of the particular wrongful death.
“Here…there was evidence to support a finding by the jury that the Wrights’ marriage was dysfunctional. *** The Defendants’ evidence was that the Wrights were permanently living apart, both were unhappy with their marriage and intended to ‘go see a lawyer [and] sign papers to be separated’.” Id. at 585. However, the surviving spouse “was entirely dependant upon her husband for support. The jury could reasonably infer that she could have continued to rely upon him for support despite their separation.” Id.
Continue reading "Virginia Auto Accidents: VSC Wrongful Death Damages – a Lawyer’s Limitation" »
On January 16, 2009, the Virginia Supreme Court issued an opinion rejecting the “unavoidable accident” and “sudden emergency” doctrines and upholding a $490,000.00 jury award in a car accident scenario. The death and personal injury case is Hancock-Underwood v. Knight, 277 Va. 127 (2009).
Hancock-Underwood abrogated the “unavoidable accident” doctrine in Virginia. “In consideration of the prevailing concerns of the [majority] states that have rejected the instruction – that it merely restates the law of negligence, overemphasizes the defendant’s case and is apt to confuse and mislead – we join those states and hold that it is error to grant an unavoidable accident instruction.” Id. at 136.
Also, the Virginia Supreme Court upheld the “sudden emergency” doctrine in vehicle accident cases, but found that the “particular instruction tendered by Administrator concerning sudden emergency was not supported by the evidence”. Id. at 139. Specifically, the defendant driver experiencing a medical event that rendered him unconscious did not fit the following formulation: “when the driver of an automobile, without prior negligence on his part, is confronted with a sudden emergency and acts as an ordinarily prudent person would have done under the same or similar circumstances, he is not guilty of negligence.” Id. at 726.
House Bill 1799 passed the Virginia General Assembly in 2009. Effective July 1, 2009, it amends Va. Code Ann. §2.2-3705.3.
The amendment adds the Virginia Fraud and Abuse Whistle Blower Protection Act. A “whistle blower” is a state employee who reports or testifies about fraud or abuse.
The act prohibits employers from retaliating or otherwise discriminating against a whistle blower. State employers also are required to post notices of the protections.
Progressively, the Act creates a Reward Fund. Whistle blowers who disclose information of fraud or abuse saving at least $10,000.00 are entitled to a monetary award of 1% of the cost savings (up to a total reward of $5,000.00).
Continue reading "Virginia Whistle Blowing: Va. Code Ann. §2.2-3705.3 (Amended) – a Lawyer’s Fund" »
Senate Bill 843 failed to pass the 2009 Virginia General Assembly. It was defeated by the wealthy powerful healthcare industry, including the Virginia Hospital and Healthcare Association (“VHHA”), which represents the one hundred leading hospitals and other healthcare institutions in Virginia.
Va. Code Ann. §8.01-581.15, the so-called “medical malpractice cap,” limits the amount that any victim patient actually can recover from an offending healthcare provider, regardless how much appropriately is awarded by a jury or judge at trial. Virginia’s cap has been fixed at $2,000,000.00 since July 1, 2008.
Virginia’s medical malpractice cap is protectionist special interest legislation of healthcare providers, which no other citizen of Virginia enjoys. It inequitably limits the fair compensation awarded by juries and judges to victim patients who have been injured most profoundly by nursing home abuse and other medical malpractice.
The VHHA and other healthcare providers successfully lobbied against increasing the current inequitable limit of victim compensation for nursing home abuse and other medical malpractice. In fact, if the VHHA and others in the health industry had their way, the amount recoverable by victim patients would be decreased regardless how disabling and otherwise severe the injuries inflicted upon them.
Indeed, as a foil to Senate Bill 843, health industry proponents sought passage of their own special interest legislation, House Joint Resolution 658. That would have commissioned a sub-committee to study the supposed “current and impending severe shortage” of medical doctors ostensibly due to “the effect of excessive malpractice insurance premiums, malpractice laws and caps…”.
Continue reading "Virginia Medical Malpractice Cap: Va. Code Ann. §8.01-581.15 – a Lawyer’s Claim" »
House Bill 2057 passed the Virginia General Assembly in 2009. Effective July 1, 2009, it amends Va. Code Ann. §8.01-52.1 and §8.01-581.20:1.
Prior to amendment, the statute rendered certain so-called “gestures expressing sympathy or general sense of benevolence” inadmissible against a healthcare provider in cases of nursing home abuse and other medical malpractice. The amendment expands that to include “commiseration, condolence, compassion . . . together with apologies.”
At common law and in court rules, such admissions of liability or other statements against interest by a wrongdoer could be introduced in cases of nursing home abuse and other medical malpractice. Hence, the statute and its amendment is protectionist legislation enjoyed by healthcare providers and no other citizens of Virginia.
Studies have shown that healthcare providers guilty of nursing home abuse and other medical malpractice who admit liability to their patients after-the-fact are less likely to be sued for their wrongdoing and resulting damages. Thus, this special interest legislation essentially lets all offending healthcare providers admit liability with impunity toward avoiding being sued, but then to duplicitously deny liability to unknown jurors and to gag the knowing victims at trial if still sued.
If you or a loved one is victim of nursing home abuse or other medical malpractice, 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.
Senate Bill 1275 passed the 2009 Virginia General Assembly. Effective July 1, 2009, it amends Va. Code Ann. §8.01-399.
That statute codifies the so-called “physician-patient” privilege. That privilege renders confidential from disclosure communications between patients and physicians in the course of treatment for brain injuries and other personal injuries.
Before the amendment, overly aggressive physicians asserted that the privilege was theirs to waive, and disclosed confidential information of their patients to help defense-oriented interests, such as other healthcare providers committing medical malpractice, vehicle accident offenders, defective product manufacturers, defective premises owners, sexual abuse perpetrators and other criminals. But the statutory amendment is clear that the patient alone will control whether any privilege is waived and confidential communication is disclosed.
Senate Bill 1154 passed Virginia General Assembly in 2009. Effective July 1, 2009, It amends Va. Code Ann. §8.01-413.
Prior to the amendment, healthcare providers routintely were charging a flat fee of $10.00 plus $0.50-$1.00 per page for providing their patients their account statements. That obviously cost victims of vehicle accidents, nursing home abuse, other medical malpractice, product or premises defect, sexual abuse or other crimes who simply were trying to get their bills paid.
After the amendment, healthcare providers must provide all patients an itemized listing of charges and account balance at no cost. Indeed, a victim patient will be entitled to request free printouts up to three times every twelve months.
For many patients the cost savings will be multiplied across numerous healthcare providers. Most victims of vehicle accidents, nursing home abuse, other medical malpractice, product or premises defect, sexual abuse or other crimes have to consult the variety of healthcare providers.
On March 24, 2009, Gloucester Circuit Court denied an Amended Motion to Dismiss, which asserted that an Amended Complaint seeking installment and other payments was time-barred upon the statues of limitation for breach of contract and fraud. The case is Altizer v. Altizer, No. CL08-584.
The Gloucester Circuit Court also overruled on Amended Demurrer to the Amended Complaint. Among other things, Defendant has asserted that the suit failed to state a claim on a valid enforceable contract.
Continue reading "Gloucester Contract/Fraud: Statute of Limitation – a Lawyer’s Case" »
In Virginia, the statute of limitation for a fraud is two years from the time when a reasonable person should have discovered it. But when exactly the statute begins to run depends on whether there were multiple occurrences.
“A cause of action for breach of a contract or duty accrues on the date of breach. Va. Code Ann. §8.01-230. Virginia recognizes that multiple breaches or occurrences can give rise to separate causes of action.” Park v. Alcon Surgical, Inc., 1993 U.S. App. LEXIS 8419, * 9 (4th Cir. 1993).
“Adopting [Plaintiff’s] contention,” the Virginia Supreme Court observed, “the trial court ruled that ‘each [tortious] discharge was a separate actionable event’ for which [Plaintiff] was entitled to seek recovery ‘during the 5 years preceding the filing of suit’. We agree.” Hampton Roads Sanitation Dist. v. McDonnell, 234 Va. 235, 239 (1987)(repeated trespass). “If the wrongful act is of a permanent nature and one that produces all the damage which can ever result from it, then the entire damages must be recovered in one action, and the statute of limitations begins to run from the date of the wrongful act. Conversely, when wrongful acts are not continuous but occur only at intervals, each occurrence inflicts a new injury and gives rise to a new and separate cause of action. In the latter situation, a plaintiff’s right of recovery . . . is limited by the statute of the damages sustained during the five years preceding the institution of the suit.” Id. (emphasis added)( brackets omitted).
The Virginia Supreme Court recently embraced Hampton Roads in Am. Physical Therapy Ass’n v. Fed’n of State Bds. of Physical Therapy [“APTA”], 271 Va. 481, 484-485 (2006). In reversing and remanding a trial court that incorrectly had applied a single unitary statute of limitation period to discrete occurrences, the Virginia Supreme Court in APTA reiterated “if the wrongful acts are not continuous and ‘occur only at intervals, each occurrence inflicts a new injury and gives rise to a new and separate cause of action’.” Id. at 484.
“Since the statute of limitations is an affirmative defense, [Defendant] has the burden of proving facts that bar [Plaintiff’s] claim.” Park, supra, 1993 U.S. App. LEXIS 8419, * 11. When there is conflict over when a plaintiff should have discovered that the defendant committed fraud, the defensive pleading must be denied. See, Bd. of Dirs. of the Lessner Pointe Condominium on the Chesapeake Bay Ass’n, Inc. v. Harbour Point Bldg. Corp., 2002 Va. Cir. LEXIS 422, * 27-28 (Virginia Beach Jun. 18, 2002).
Continue reading "Virginia Fraud: Statute of Limitation – a Lawyer’s Occurance" »
In Virginia, the statute of limitation for a breach of written contract is five years and of oral contract is three years. But when exactly the statute starts to run depends on whether there are multiple breaches.
Over half a century ago, the Supreme Court of Virginia declared, “It is well settled that in the absence of [an acceleration] provision [obligations payable in installments] are payable as they are written, and the time of payment is not accelerated by the happening of other events not specifically agreed upon.” Holcomb v. Webley, 185 Va. 150, 156 (1946). Correspondingly, the applicable statute of limitation runs from the time each individual installment payment matures and falls due according to its terms. Id. at 158. Hence, the Virginia Supreme Court in Holcomb overruled a plea of the statute of limitations as to each individual installment payment falling due within the pertinent limitation period preceding the filing of suit, reversing and remanding the trial court’s decision to the contrary. Id. at 159.
Prior Virginia Supreme Court decisions and subsequent Virginia Circuit Court decisions embody Holcomb. “Courts generally have agreed that for [breach of contract] claims based on an installment contract, a cause of action accrues, and the statute of limitations begins to run, when each installment becomes due. See, 15 Richard A. Lord & Samuel Williston, Williston on Contracts §45:20 (4th Ed. 2000).” Gilliam v. Gilliam, 2003 Va. Cir. LEXIS 173, * 3 (Fairfax Aug. 14, 2003).
“Virginia follows this general rule. See, Ten Braak v. Waffle Shops, Inc., 542 F.2d 919, 924 n.6 (4th Cir. 1976)(‘We note that Virginia does follow the majority rule recognizing contracts for installment payments are divisible, thereby permitting separate actions to be maintained to recover installment as they fall due.’ (citation omitted)); Jones v. Morris Plan Bank of Portsmouth, 168 Va. 284, 191 S.E. 608 (1937)(stating that Virginia does follow the majority rule recognizing that contracts for installment payments are divisible, thereby permitting separate actions to maintain to recover installment payments as they fall due); Williams v. Matthews, 103 Va. 180, 48 S.E. 861 (1904)(holding that the statute of limitations on claim to recover five unpaid installments of stock subscription land from dates on which unpaid installments were due).” Gilliam, 2003 Va. Cir. LEXIS 173, * 3-4.
Thus, in the Virginia domestic law case of Gilliam, where one spouse promised to pay the other monthly installment payments over twenty years, it was “a divisible installment contract, and the statute of limitations for each payment due under the Note began to run when each installment became due.” Id. at * 4. “As a result,” concluded Gilliam, “the statute of limitations has not yet run for any installments or other payments due from [five years prior to suit filing] to the present date, which include any unpaid principal and interest”. Id.