Virginia Injury Attorney Blog

On October 4, 2011, Mr. Waterman attended an ethics and professional program in Richmond, Virginia, presented by the Virginia State Bar and Attorney Liability Protection Society, Inc. (“ALPS”). The hot topic was “social media,” which surfaces with increasing frequency as key evidence in personal injury and wrongful death cases.

Rule 8:4(c) of Virginia’s Code of Professional Responsibility prohibits “dishonesty, fraud, deceit or misrepresentation” by a lawyer online; and companion Rule 8:4(a) prohibits a lawyer perpetrating the same through employees and contractors. But those limitations do not necessarily protect victims of personal injury and wrongful death against opposing parties, their insurers, and others “friending,” downloading and otherwise gaining material and information through social media such as Facebook, MySpace, LinkedIn, and the like.

Clients beware! Be circumspect!

Like the rest of America, Virginia is exploding with “social media” – from YouTube to Facebook to Myspace to Twitter to LinkedIn to Lester v. Alliance Concrete to you-name-it! Most of the younger generation and increasing numbers of the older generation are expressing themselves online – including after being victims of car accidents, medical malpractice, assault and battery, and other personal injury.

In the 2010 brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, which now is on appeal before the Virginia Supreme Court, Nos. 110754 and 110767; social media was a would-be cornerstone of the defense. Defendants introduced into evidence various printouts they claimed were threatening profane communications and image posting of Plaintiff on Myspace.com.

Ultimately, the jury was not persuaded by the social media claimed in Gagnon. But like some other personal injury and wrongful death victims, Plaintiff was put to substantial expense and risk in proving that he was not responsible for the supposed Myspace.com materials.

Extensive expert computer forensics costing Plaintiff over $10,000.00 were required to show that the supposed Myspace communications and image posting of the brain injury Plaintiff actually were created by others. Fortunately for Plaintiff in Gagnon (but unfortunately for plaintiffs in other personal injury and wrongful death cases), social media messages and postings leave trails of evidence on hard-drives that usually are recoverable.

It always is important to be very careful about use of social media, particularly when one is victim of car accident, medical malpractice, other personal injury, or wrongful death. But as in Gagnon, it also may be important for victims to preserve and analyze hard-drives.

Social media burst onto the radar of most lawyers in 2011 with repeated headline news coverage of a notorious truck accident case, Lester v. Allied Concrete. But Mr. Waterman has been wrangling with it for years.

In a confidential 2009 Williamsburg special case in Court, a party printed the other party’s Facebook photographs, surprised the opposition on cross-examination, and introduced them as key evidence. Since that social media irrefutably showed excessive drinking and apparent neglect, it carried the day.

Social media usually is intended for family and friends. But victims of car accidents, medical malpractice, other personal injury, and wrongful death seriously need to think twice and even thrice about what is posted by them innocently falling into enemy hands unwittingly.

Most victims of vehicle accidents and medical malpractice are unaware that anything posted may be held against them in Court. But defendants, defense lawyers, insurance companies, claim representatives, risk managers and other opponents now are very savvy to this and routinely search for, save, and download potentially incriminating information that is on social media.

All victims of personal injury or wrongful death immediately should consider privatizing all social media, scrutinizing all existing posts for content, and limiting all future posts. Of course, such prudence may be superseded by pending discovery requests, court orders, etc.

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.

House Bill 3296 and Senate Bill 1142 passed the 2009 Virginia General Assembly. Effective July 1, 2009, they amend Va. Code Ann. §37.2 and §54.1.

These amendments constitute extensive revisions to the Virginia Health Care Decisions Act. These include, but are not limited to, appointment and authority of agents, determination of incapacity and restored capacity, and other advance directive provisions.

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).

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…”.

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.

House Bill 1876 passed the 2009 Virginia General Assembly. Effective July 1, 2009, it amends Va. Code Ann. §46.2-1078.1.

Toward avoiding vehicle accidents, the new amendment prohibits operating a motor vehicle while using any hand held personal communication device to enter or read a text message. However, it exempts GPS, reporting an emergency, or reading caller identification information.

The new law will carry a traffic fine of $20.00 for first-time offenders and $50.00 for repeat offenders. More importantly, violating it while involved in a vehicle accident will constitute negligence per se.

Pre-trial mediation has enjoyed such success and popularity that increasingly Virginia circuit courts are requiring litigants to submit to it shortly before trial. In Newport News, Hampton, York County and other venues in Hampton Roads, parties must mediate vehicle accidents, medical malpractice, and many other cases.

The format of court-facilitated mediation is the same as that of private mediation. The main difference is that the court provides the mediator, who always is a retired Virginia circuit court judge, at its own expense – a real saving to the parties.

Across Virginia, the success rate of court-facilitated mediation apparently is around 70%. On the Peninsula, some of the more popular mediators boast success rates of 85%+.

Federal courts in Virginia also are mandating mediation in personal injury, employment, and other civil cases. Federal magistrates, current and senior, routinely serve as mediators there.

Circuit court mediators tend not to be as successful in resolving vehicle accident, medical malpractice, and other personal injury or wrongful death cases involving substantial injuries and damages; which the parties themselves commonly take to private mediation, except in “no offer” cases. But court-facilitated mediation shines in resolving the small and moderate size vehicle accident cases, with them usually settling within an hour or two (or not at all).

Continue reading "Virginia Mediation: Court-Facilitated – a Lawyer’s Requirement " »

Mediation is a dispute resolution process as an alternative to trial. It is similar to arbitration, but significantly is voluntary and non-binding.

Over the past decade in Virginia, mediation has gained in popularity. Competing private companies comprised principally by many retired judges and secondarily by some practicing lawyers sprout yearly.

Given the delays, expenses and risks of trial and appeal, lawyers increasingly are resorting to mediation after discovery in substantial nursing home, other medical malpractice, vehicle accident, product or premises defect, sexual abuse and other personal injury cases. Of course, mediation costs are not trifling: mediators command from a low of $200.00 to more than $500.00 per hour for all time expended on the case.

Typical mediation protocol is lawyers submit confidential concise case summaries and possibly limited materials the mediator and briefly confer with the mediator shortly before the parties and they are convened in a law office. At the mediation session itself, the mediator provides a brief overview of the process; all present sign a confidential mediation agreement; each side may present an abbreviated opening/closing-type statement; the parties retire to separate rooms; and the mediator then runs “shuttle diplomacy” between the two camps, pointing out strengths and weaknesses to each, giving personal opinion and valuations, and trying to bring the parties together on some common if not middle ground.

The injection of the neutral mediator into the adversial and off-times acrimonious or distrustful dynamic between the parties and their lawyers provides a critical modicum of objectivity and confidence. Hence, cases of wrongful death, brain injuries, and other significant personal injury with a seemingly insurmountable gulf between the parties often is bridged by a skillful proactive mediator.

Virginia jurisprudence holds that an owner may be liable for “negligent entrustment” by permitting an unfit driver to use his vehicle if it causes a vehicle accident. “The correct test of liability is whether the owner knew, or had reasonable cause to know, that he was entrusting his car to an unfit driver likely to cause injury to others.” Denby v. Davis, 212 Va. 836, 838 (1972).

In Denby, weak, though not inherently incredible, testimony was “sufficient to show that Denby turned over his car to Pretlow with reason to know that Pretlow would use it and with knowledge that Pretlow had no operator's permit and was physically unfit to drive an automobile without endangering himself and others [because of his impaired vision]”. Id. at 839. By its verdict for the plaintiff, the jury impliedly found that both Pretlow’s impaired vision and Denby’s negligent entrustment were proximate causes of the accident. Id.

The Virginia Supreme Court found sufficient evidence and jury instructions to uphold the jury verdict. Hence the vehicle owner was held liable for the wrongful death resulting from the vehicle accident in Denby.

Some parents and others allow underage children to drive the family car. But by Virginia statute, that exposes them to personal liability for vehicle accidents.

Va. Code Ann. §8.01-64 reaches any owner who allows and any other person who furnishes a minor who is under 16 years old and lacks a valid driver’s permit a motor vehicle to use. Such owners and others are liable with the minor for all damages negligently caused by vehicle accident.

Under Va. Code Ann. §8.01-65, proof of vehicle use without the owner’s “knowledge or consent, express or implied,” is a defense to liability. But the owner bears the burden of proving that.

Such vehicle entrustment to underage children also may implicate insurance coverage for vehicle accidents. Speak to the insurance agent – better yet, never entrust so!

Many motorists have a bad attitude about bicyclists, horsemen, and others non-motorists riding on the state highways, incorrectly thinking they have no business being on the road. But Virginia law is clear that bicyclists, horsemen, and some other vulnerable riders have equal rights to the road, so a vehicle accident with them may be the motorist’s fault.

"Every person riding a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, moped, or an animal or driving an animal on a highway shall . . . have all of the rights and duties applicable to the driver of a vehicle . . . .” See, Va. Code Ann. § 46.2-800. Indeed, in Virginia local ordinance may prohibit bicyclists from riding on sidewalks and crosswalks, forcing them onto the highways. See, e.g., § 46.2-904.

Of course, bicyclists have some special highway limitations. Generally, they must “ride as close as safely practicable to the right,” must “move into a single file formation as quickly as practicable when being overtaken,” see, § 46.2-905; must not carry any article that “prevents… keeping at least one hand on the handle bars,” or “carry more persons at one time than the number of persons for which [the bicycle] was designed” (except a child under 6 years old in special seat or trailer), see, § 46.2-906; and by local ordinance if under 14 years old may have to wear a special helmet. See, § 46.2-906.1.

Despite overwhelming statistics that seatbelt use greatly reduces wrongful death and brain injuries in car accidents, some drivers and passengers make up unfounded excuses for not wearing them. Some common erroneous thinking is:

A. I am, or am riding with, a good driver;

B. I am not driving far from home;

C. I am not driving on the highway; and

D. I rather be thrown away from the crash than trapped inside the vehicle.

A military “Safety Training 2005” publication based on statistics from the National Highway Transportation Safety Administration states the real facts:

1. Even good drivers have vehicle accidents beyond their control due to vehicle, weather, road and/or other driver conditions;

2. Most vehicle accidents happen within 25 miles of home;

Continue reading "Car Accidents, Wrongful Death & Brain Injury – A Lawyer’s Facts" »

Car accidents occur constantly. But many crash-related wrongful deaths and brain injuries can be avoided by wearing seatbelts.

In September, 2008, the National Highway Transportation Safety Administration (“NHTSA”) noted for passenger vehicle accidents: “Research has found that lap/shoulder seat belts, when used reduce the risk of fatal injury by front-seat passenger car occupants by 45 percent and the risk of moderate-to-critical injury by 50 percent. In 2006 alone, seat belts saved an estimated 15,383 lives.”

NHTSA statistics show general seat belt usage up incrementally and wrongful deaths decreasing. This Valentine’s Day, be sure that your loved ones and you “buckle up” to minimize the chance of wrongful death and brain injury.

What really happens in a vehicle accident should govern case outcome. But too often liability and/or damages for personal injuries in Virginia actually are affected by what happens after the accident.

10. Contact an experienced lawyer as soon as possible to discuss your case.

Continue reading "Virginia Vehicle Accidents – a Lawyer’s Advice" »