Virginia Injury Attorney Blog

Toward evaluating a potential medical malpractice claim, pursuant to Va. Code Ann. §8.01-413(B) Mr. Waterman sought a patient’s “records or papers” from Maryview Nursing Care Center in Suffolk, Virginia. His request was made without any suit pending and included inter alia any so-called incident reports.

Through legal counsel on January 19, 2012, that Bon Secours nursing home provided 16 Quality Care Reports, but redacted from each of them everything under the general heading of “NATURE OF THE INCIDENT” – which constituted more than one-third the informational content of all 16 forms – ostensibly “to remove deliberative analysis” that supposedly was “privileged by Va. Code §8.01-587.17” as amended in 2011. Naturally Mr. Waterman objected to such obviously overbroad redactions.

On January 31, 2012, Maryview/Bon Secours belatedly provided all 16 Quality Care Reports unredacted. Significantly, the unredacted forms disclosed 10 subsections headed “BEHAVIORAL,” “BLOODY/BODY FLUID EXPOSURE,” “BURN,” “COMPLAINT,” “EQUIPMENT RELATED,” “FALL,” “IV/MEDICATION RELATED,” “PROPERTY LOSS/DAMAGE,” “SKIN INTEGRITY” and “TREATMENT/PROCEDURE RELATED” – the format of which was check-the-preprinted-boxes and reflected core facts pertinent inter alia to a patient fall at issue.

On November 23, 2011, Circuit Court for the City of Alexandria, Virginia, rejected defendant healthcare provider’s medical malpractice claim of privilege based on the 2011 Amendment of Va. Code Ann. §8.01-581.17, and ordered the hospital to produce its so-called “incident report”. The pivotal case is Mary Hamill v. INOVA Alexandria Hospital, No. CL-10004231.

Significantly, the healthcare provider in Hamill v. INOVA introduced testimony that the patient’s nurse “reported the incident electronically to Inova Alexandria Hospital’s quality department,” with the purpose ostensibly being “to initiate a peer review of the incident to determine if measures should be taken to improve the quality of care”. Defendant’s Memorandum at 3. INOVA unsuccessfully asserted by deposition that the medical malpractice incident report “automatically goes to Quality,” with the quality department doing a “post-event assessment”. Id. at 6.

Plaintiff patient in Hamill v. INOVA successfully relied chiefly on Mr. Waterman’s landmark medical malpractice appeal, Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006). Therein the Virginia Supreme Court upheld the discoverability and the admissibility of incident reports, rejecting that a healthcare provider routing facts about patient care through a covered committee created privilege. Id. at 532.

Hamill v. INOVA undercuts the medical malpractice defense viewpoint by W. Scott Johnson, Esq. of Hancock, Daniel, Johnson & Nagle, P.C. in his article “2011 General Assembly Amendments to Va. Code §8.01-581.17: Quality Assurance and Peer Review Protection,” Virginia Lawyer, Vol. 60 (Dec. 2011). Plaintiff counsel are invited to contact Mr. Waterman for a copy of the 11/23/11 Order in Hamill v. INOVA.

On October 27, 2011, Mr. Waterman refiled a medical malpractice suit in Circuit Court for the City of Newport News, Virginia, captioned Shirley Frazier Burrell v. Riverside Hospital Inc. and Nurse M. Ames. The original suit was in the now – widowed patient’s then – married name, Shirley Frazier Shakshober v. Riverside Hospital, Inc. and Nurse M. Ames, No. CL0800296P-03.

Burrell/Shakshober is a patient fall case against Riverside and its nurse, alleging their failure to assess and to intervene properly for the patient as a known high fall risk. Despite the patient admittedly suffering from intermittent confusion, having a mobility problem, being under the influence of mind-altering narcotics, being elderly, being very anxious, and even constantly trying to get out of bed; Riverside and its nurse did not activate the patient’s bed alarm system or use any physical restraints before the patient fell (even though Riverside and its nurse did restrain the patient after she fell.

Mr. Waterman previously sued Riverside in Newport News Circuit Court in another patient fall case, Johnson v. Riverside Hosp., Inc., No. CL00-29638-DP. Mr. Waterman obtained a $1,600,000.00 jury verdict against Riverside in Johnson in 2005, which was upheld on appeal by the Virginia Supreme Court in Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006).

In the pending Burrell/Shakshober medical malpractice lawsuit, a UVA neuroradiologist, a MCV anesthesiologist, a Harvard neurologist, a Rothman Institute orhopaedic surgeon, the patient’s own orthopaedic surgeon, a Virginia nursing expert, and a national nursing expert are slated to testify against Riverside and its nurse on the standard of care and/or the causation of the permanent debilitating neurological injuries suffered by the patient fall victim. Jury trial on the merits is expected to be rescheduled for 2012.

The Summer 2011 issue of The Safety Report featured article “Brain Injury – Recognizing a ‘Hidden Disability’”. The Center for Disease Control and Prevention (“CDC”) estimates that annually there are 1,700,000 traumatic brain injury (“TBI”) victims in the United States, causing 1,370,000 emergency room visits, 255,000 hospitalizations, and 52,000 deaths. Id. at 42.

The CDC identifies the following most common causes of TBI: falls (35.2%), motor vehicle accidents (17.3%), assaults (10%), and other impact events (16.5%). The Brain Injury Association of America notes that TBI can have permanent physical, mental, emotional and psychological components, including personality changes. Id. at 42-43.

The crime victim represented by Mr. Waterman in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, on appeal before the Supreme Court of Virginia, No. 110767 c/w No. 110754, suffered such a multi-faceted TBI. That brain injury victim was assaulted on school premises and was awarded over $6,000,000.00 against his student assailant, another instigating student, and an Assistant Principal who did absolutely nothing after being forewarned and assuring he would notify school security.

On October 12, 2011, Plaintiff, Shirley Frazier Burrell, non-suited Shirley Frazier Shakshober v. Riverside Hospital, Inc. and Nurse M. Ames, No. CL08-296 in the Circuit Court for the City of Newport News, Virginia. That was a medical malpractice lawsuit previously filed under her married name.

Va. Code Ann. §8.01-380 and Virginia Supreme Court jurisprudence provides that civil litigants can non-suit their case and then refile it within 6 months. Mr. Waterman will refile this patient fall cause for Ms. Burrell against Riverside and Nurse Melanie Ames within 30 days and promptly seek a 2-week jury trial in Newport News in 2012.

On October 6, 2011, Defendants filed Motions in Limine and Memorandum in Support in Shirley Frazier Shakshober v. Riverside Hospital, Inc., et al., No. CL08-296 in Circuit Court for he City of Newport News, Virginia, toward keeping from the jury twelve (12) points of evidence at trial. Since filing that patient fall lawsuit, Plaintiff has resumed her pre-marital name, Shirley Frazier Burrell.

1. Riverside Defendants seek to preclude evidence of other lawsuits, claims, and verdicts against Riverside. Riverside has been sued for medical malpractice on multiple occasions by Plaintiff’s lawyer (not to mention even more by numerous other attorneys), including particularly for another serious patient fall case that resulted in a roughly $1,670,000.00 verdict for that victim in 2005, which was upheld by the Virginia Supreme Court in 2006, Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006).

2. Riverside Defendants seek to preclude evidence of other patient falls at Riverside. For example, Riverside’s computer database in Riverside Hospital, Inc. v. Johnson indicates that literally hundreds of in-patients fall annually at Riverside Regional Medical Center alone, and that roughly 10% of those result in serious brain or other personal injury.

3. Riverside Defendants seek to preclude evidence its so-called Committee Meeting Minutes for Plaintiff’s patient fall. In addition to various so-called “incident reports” and like documents, Riverside kept minutes of its committee meeting about Plaintiff and her fall, some of which after evidentiary hearing the Court already ruled were not privileged from disclosure.

4. Riverside Defendants seek to preclude evidence of what was taught by nursing faculty to nursing students at Riverside School of Professional Nursing and at Riverside School of Practical Nursing in 2006 before, at, and after the patient fall of Plaintiff. Textbooks, syllabi, videotapes, handouts and/or other course materials of Riverside actually support what Plaintiff and her nursing expert state was the prevailing nursing standard of care in Virginia vis-à-vis fall risk assessment and fall risk intervention at the time of Plaintiff falling and being injured.

5. Riverside Defendants seek to preclude evidence of Riverside’s internal training and orientation materials about patient falls. The fact is that Riverside’s Orientation program, staff development instruction, in-services, and “computer based learning” (“CBL”) materials required for Riverside’s nurses in 2006 actually support what Plaintiff and her nursing expert state is the prevailing nursing standard of care in Virginia vis-à-vis fall risk assessment and fall risk intervention at the time of Plaintiff falling and being injured.

6. Riverside Defendants seek to preclude evidence related to complaints about nursing staffing, nursing shortages or like nursing deficiencies, such as about nurse-to-patient ratios. In particular, they seek to exclude from jury consideration in this medical malpractice case a prior complaint of another patient.

7. Riverside Defendants seek to preclude evidence regarding “causation” by Plaintiff’s standard of care nursing expert. Plaintiff’s expert nurse testified how Defendants giving the patient the narcotic Dilaudid shortly before her patient fall contributed to the patient falling by causing disorientation and confusion; plus Defendants also gave the patient Ambien the evening before.

8. Riverside Defendants seek to preclude from evidence Plaintiff’s orthopaedic surgeon providing causation opinions that are very favorable to her. Specifically, they want to exclude from jury consideration her orthopaedic surgery expert testifying that the repair surgery under general anesthesia necessitated by the patient fall aggravated her neurological condition and increased her neurological deficit.

9. Riverside Defendants seek to preclude from evidence Plaintiff’s anesthesia expert providing causation opinions that are very favorable to her. Specifically, they want to exclude from jury consideration her anesthesia expert testifying the patient suffered a stroke during the repair surgery under general anesthesia that she had to undergo because of the patient fall.

10. Riverside Defendants seek to preclude from evidence Plaintiff introducing testimony by their own nursing standard of care expert about whether physical restraints appropriately were used on her after the patient fall. One of Defendants’ nursing experts already has opined that it was appropriate for Defendants to use a posey vest on the patient after, but not before, she fell.

11. Riverside Defendants seek to preclude from evidence the fact that Defendant Nurse Ames and other healthcare providers of Plaintiff left the employment of Riverside at various points after the patient fall. Instead, they prefer jury expectation, assumption and/or speculation that all of the individual nurses and other healthcare providers of the patient still are (longtime) employees of Riverside.

12. Riverside Defendants seek to preclude from evidence a pharmacy medication issue involving Plaintiff while she was an in-patient of Riverside during 2000. Specifically, although Riverside destroyed all of her patient chart for that 2000 admission, an “incident report” survived and was discovered by Plaintiff after her patient fall in 2006.

Cabiness v. Medical Facilities of Am. VIII (8), L.P., 80 Va. Cir. 425 (Danville Jun. 21, 2010) is a medical malpractice action. It overruled the Demurrer to plaintiff’s claim for punitive damages.

Cabiness found that the First Amended Complaint set forth sufficient facts supporting “willful and wanton negligence”. Id. at 433. Based on plaintiff’s pleading of medical malpractice, “a reasonable jury could conclude that the defendants were actually aware, from their knowledge of existing circumstances and conditions, that their contact probably would cause some injury to another and that despite such actual knowledge, they consciously disregarded the probably harm to the plaintiff.” Id.

Gibson v. Medical Facilities of America, Inc., 80 Va. Cir. 56 (Norfolk Jan. 22, 2010) is a medical malpractice case. It resolved issues of venue and an arbitration clause in favor of the nursing home resident, a victim of sexual molestation.

First, Gibson held there was permissive venue based on Medical Facilities of America (“MFA”) regularly conducting substantial business in Norfolk. It sufficed that MFA was sole general partner in the limited liability partnership that owned a healthcare facility in Norfolk, despite the alleged medical malpractice being committed at another facility in Chesapeake. Id. at 58.

Second, Gibson held: “The Court has discretion in determining whether the defendant has demonstrated good cause to transfer, and the plaintiff’s forum selection should be given favor.” Id. The requisite “good cause” for transferring the case to Chesapeake (where the medical malpractice occurred) was not shown because there was “no demonstration of substantial inconvenience to the parties or witnesses” by the case being in Norfolk. Id. at 59.

Third, Gibson held another defendant was not entitled to transfer venue of the medical malpractice case, despite not having any personal connection to Norfolk. “Venue is proper to all defendants if it is proper to one defendant.” Id.

Fourth, Gibson denied MFA’s motion to compel arbitration of the medical malpractice claim. “When the plaintiff brings an action in tort rather than contract, asserts no claim under the contract, and does not require the existence of the contract to proceed, the arbitration provision of the contract is not applicable to the controversy.” Id. at 63.

Kudos to the Honorable Ronald E. Wilson, Judge of the 1st Judicial Circuit, sitting as temporary Justice on the Supreme Court of Appeals of West Virginia! On July 21, 2011, he authored a most courageous cogent dissent in the medical malpractice case of MacDonald v. City Hospital, Inc., No. 35543.

Judge/Justice Wilson in MacDonald wrote a no-holds-barred dissenting opinion that exposed medical malpractice “cap” legislation for exactly what it is. He also appropriately challenged the state’s highest court to uphold its judicial responsibility and declare the statute unconstitutional on multiple grounds.

There has been some suggestion that his brilliant dissent may prompt West Virginia’s Supreme Court to reconsider the constitutionality. Better yet, perhaps the MacDonald medical malpractice appeal will be taken to the United States Supreme Court!

In Lents v. Vetter, 80 Va. Cir. 268 (Fairfax Apr. 2, 2010); Fairfax County Circuit Court applied Va. Code Ann. §8.01-20.1 in a medical malpractice action. Section 8.01-20.1 requires plaintiffs to have medical expert certification of a prima facie case before requesting service of process.

In Lents, defendant answered the pending medical malpractice complaint voluntarily without plaintiff ever having requested service. Holding that “Section 8.01-20.1 is in derogation of the common law and should be strictly construed,” the court found that by voluntarily answering defendant had waived service of process and thereby could not demand expert certification. Id. at 270-271.

In Addison v. Jurgelsky, No. 092361 (Jan. 13, 2011), the Virginia Supreme Court reversed dismissal of a medical malpractice action. It held that a single co-administrator acting alone as Plaintiff could file, but not maintain, suit under Virginia’s Wrongful Death Act, Va. Code Ann. §8.01-50, et seq. Id. at 3-5.

Justice Mims in Addison continued that the initial filing by the one co-administrator tolled the statute of limitation for the wrongful death claim in Tazewell County, Virginia; and that it was permissible to join the other co-administrator as Plaintiff after the statute of limitation had run. Hence it was error to grant the motion to abate for nonjoinder and the plea of the statute of limitations. Id. at 9.

In the medical malpractice miscellaneous proceeding, In re Carla J. Jones, Nos. CM10-911 and CM10-710 of Circuit Court for Chesapeake, Virginia, petitioner sought pre-suit discovery pursuant to Va. Sup. Ct. Rule 4:2(a)(3). The judge granted pre-litigation depositions of the individual healthcare provider who allegedly was responsible for the conduct in question and of the most knowledgeable person (“MKP”) of Chesapeake Regional Hospital.

Jones found that perpetuating the depositions would “promote judicial efficiency” and might “prevent a delay or a failure of justice”. It also found that the medical malpractice expert certification requirements of Va. Code Ann. §8.01-20.1 could not “reasonably be met without additional information”.

The judge in Jones issued a letter opinion dated July 29, 2010. He also entered a corresponding Order in the medical malpractice proceeding on August 9, 2010.

In Chalifoux v. Radiology Assocs. of Richmond, Inc., No. 100052 (Apr. 21, 2011), the Virginia Supreme Court applied the “continuing treatment rule” in a medical malpractice case. It reversed the trial court finding upon evidentiary plea hearing that Defendant’s serial comparative diagnostic imagings of Plaintiff’s brain were “single, isolated acts,” were episodic care” versus a “care continuum”. Id. at 5,16.

The Virginia Supreme Court looked to Arkansas, Connecticut and especially Missouri precedent in applying the rule to radiologists in Chalifoux. Id. at 12-15. On the facts of this medical malpractice action, it found the requisite “continuous and substantially uninterrupted course of treatment;” and remanded. Id. at 16.

The recent letter opinion in Hairston v. Eliacin of Honorable David A. Melesco, Judge for Circuit Court of Danville, Franklin County and Pittsylvania County, Virginia, reaffirms the continuing vitality of Mr. Waterman’s landmark medical malpractice case, Riverside Hosp., Inv. v. Johnson, 272 Va. 518 (2006), and its progeny. The Virginia Supreme Court in Riverside and numerous circuit courts subsequently pronounce that “factual information of patient care” is not privileged under Va. Code Ann. §8.01-581.17 and, concomitantly, uphold the discoverabililty and even admissibility of facts contained in incident reports, electronic databases, and other materials of peer review and other quality care committees.

Distraught over the transparency ushered by Riverside and its progeny, medical malpractice defense interests spearheaded the Virginia General Assembly’s passage of a compromise amendment to §8.01-581.17 in its 2011 Session. That becomes effective on July 1, 2011.

Significantly, however, Judge Melesco in Hairston opined that all of the patient care factual information in a medical center’s Peer Review and Quality Control Committee (“PR&QCC”) document was not privileged under Riverside or the new §8.01-581.17 amendment. Interestingly, the medical center in the Hairston medical malpractice case unsuccessfully attempted to use a self-serving Affidavit of its PR&QCC head to float its privilege claim; and the medical center moved to quash plaintiff’s witness subpoena for its “most knowledgeable person” on the topic, plus its counsel of record even refused to answer any questions about how the patient’s factual information came to be parked in its PR&QCC document.

Medical malpractice defense counsel have sought to rely on Muhammad v. Commonwealth, 269 Va. 451, 518-519 (2005), the so-called “Capital beltway sniper” case, as authority for introducing self-serving videotape or computer “simulations” created for their own civil cases. But Muhammad obviously is a singular criminal prosecution for 16 serial murders, which in 6 years never has been followed or even cited for the proposition raised by defendants.

In addition to Muhammad being a truly extraordinary case, its opinion discloses at least two distinctions. First, the Muhammad videotape simulation was predicated on independent eyewitness testimony of what occurred; while in most medical malpractice cases, defendants’ simulation less reliably (more biasedly) will be attested by defendants themselves and/or their experts.

Second, in Muhammad the jury got to scrutinize the real thing first hand “by an actual inspection of the trunk,” not simply to see the videotape stimulation. Conversely, in most medical malpractice cases, the jury will not get an actual corroborating inspection of plaintiff’s body, condition and/or process; and instead only will have the defense’s vivid unilateral re-creation imprinted in their psyche.

Besides those significant legal distinctions between the two cases, realistically most defendants cannot duplicate plaintiffs’ idiosyncratic physical conditions medically as of the pertinent times. Hence courts summarily should exclude defense videotape simulations as was done in the medical malpractice suit of Norman v. Williams, No. CL07-4554 (Norfolk May 19, 2009), despite the defense offering to redact video and to abandon audio in unsuccessful last-ditch attempts to salvage simulation.

Finally, less than 2 months after handing down Muhammad, the Virginia Supreme Court found the trial court’s allowance of a defense videotape in a medical malpractice case to be erroneous. Holley v. Pambianco, 270 Va. 180, 185-186 (2005). Thus, despite Muhammad, videotape evidence remains a “hot button” topic in Virginia, the admission of which may constitute reversible error.

Mr. Waterman settled a medical malpractice matter for $1,000,000.00. Additional case details are confidential.

The 2009 landmark Virginia Supreme Court decision of Wynn v. Commonwealth, 277 Va. 92 (2009), severely limited the testimony of expert witnesses who rely on hearsay, particularly facts and opinions from other non-testifying experts. §8.01-401.1 does not allow “the introduction of otherwise inadmissible hearsay evidence during the direct examination of an expert witness merely because the expert relied on the hearsay information in formulating an opinion.” Id. at 100. “The Commonwealth, however, asserts that our holding in McMunn should be limited to ‘hearsay matters of opinion’ upon which an expert relied. We do not agree whether an expert relies upon the opinion of others or allegations of sexual misconduct in formulating an opinion, both constitute hearsay. [T]he trier of fact cannot observe the demeanor of the speaker and the statements cannot be tested by cross-examination. Id. (emphasis added). The trial court properly excluded hearsay facts, in addition to hearsay opinions, of non-testifying experts. Id. at 101 (citations omitted). See, Exhibit 5(attached). “In Wynn, this Court specifically rejected the argument that the details of adjudicated allegations of sexual misconduct offered by an expert on direct examination, supposedly to show the factual basis of an expert’s opinion, are not hearsay.” Lawrence v. Commonwealth, 279 Va. 490, 497 (2010).

In 2007, the Virginia Supreme Court pronounced that application of its Rule 4:1(b)(4)(A)(i) “begins with determining whether the opinion at issue was disclosed in any form.” John Crane, Inc. v. Jones, 274 Va. 581, 591 (2007). “Furthermore, a party is not relieved from its disclosure obligation under the Rule simply because the other party has some familiarity with the expert witness or the opportunity to depose the expert. 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 experts testimony. We reject this reading of Rule 4:1(b)(4)(A)(i).” Id. at 592 (emphasis added). “Rule 4:1(b)(4)(A)(i) requires that the substance of opinions to be rendered be disclosed. Here, while Crane did disclose the topic of Buccigross’ testimony, Crane did not disclose the substance of Buccigross’ opinions in the disclosure or through Buccigross’ report. Crane thus failed to comply with the Rule.” Id. at 593 (emphasis added). John Crane upheld two defense experts’ opinions being excluded by Newport News Circuit Court, where their substance was not disclosed and their reports were not provided.

Va. Code Ann. §8.01-379.1 guarantees Plaintiff the right to plead and argue his pleaded ad damnum to the jury. The weight of Circuit Court jurisprudence, especially more recent cases, support Plaintiff not having to reduce his ad damnum in a medical malpractice case. See, e.g., Wright v. Eli Lilly & Co., 65 Va. Cir. 484, 499-504 (Portsmouth Sep. 21, 2004)(attached)(Davis, J.)(citing Morris v. Commonwealth, 46 Va. Cir 216, 223 ( Albemarle Jul. 17, 1998)(Peatross, J.); Benson v. Lowe, 44 Va. Cir. 85, 86-87 (Norfolk Nov. 25, 1997)(Jacobson, J.); Bennett v. Riverside, 43 Va. Cir. 13, 14 (Newport News Mar. 17, 1997)(Frank, J.); Dell v. French, 38 Va. Cir. 91, 100 (Fairfax Aug 2, 1995)(Roush, J.); Johnson v. Commonwealth, 51 Va. Cir. 311, 318 (Stafford Feb. 9, 2000)(Haley, J.); and see, Amended Judgment, Johnson v. Riverside Hosp., Inc., No. CL00-29638-DP c/w CL01-30571-DP (Newport News Nov. 30, 2005)(attached).

Actually, the medical malpractice opinion of the Virginia Supreme Court upholding the constitutionality of Va. Code Ann. §8.01-581.15 in 1989 suggests that ad damnum should not be reduced prior to trial. Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 96 (1989)(italics in original)(underlining added) (citations omitted). This Etheridge language was reiterated in Supinger v. Stakes, 255 Va. 198, 205 (1998).

As recent Virginia Supreme Court case pronounced “a medical doctor is qualified to give expert testimony about the cause of human physical injury.” Hollingsworth v. Norfolk So. Ry. Co., 279 Va. 360, 364 (2010)(emphasis added). “Code §8.01-581.20 addresses only the qualifications of experts to testify on the standard of care and whether the standard of care is breached in a medical malpractice case. The requirements do not address whether an expert witness is qualified to testify on proximate causation.” Therefore, the trial court abused its discretion by holding that Dr. Corkill was not qualified to testify on proximate causation…” Lloyd v. Kime, 275 Va. 98, 112 (2008)(citation omitted)(emphasis added).

“[B]y the great weight of authority, a physician or surgeon is not incompetent to testify as an expert merely because he is not a specialist in the particular branch of his profession involved in the case; although this fact may be considered as affecting the weight of his testimony.” Butler v. Greenwood, 180 Va. 456, 462 (1942)(emphasis added)(“orthopedic surgeon of Richmond, Virginia, was permitted to answer a hypothetical question touching the brain condition of Mr. Greenwood,” who “was under the care of another doctor”).

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

Defendant in another medical malpractice case “argues that since Dr. Hall is a general surgeon and is not a radiologist or a pathologist, his opinion [that Defendant’s ‘negligence was a proximate cause of Burke’s death’] rested on mere conjecture and improperly was based on subjects on which he was not qualified to offer an expert opinion. We disagree.” Lo v. Burke, 249 Va. 311, 318 (1995) (emphasis added). “In reaching this conclusion, we reject Dr. Lo’s argument that Dr. Hall improperly was allowed to offer opinion testimony on subjects involving radiology and pathology. Dr. Hall testified that while he is not qualified to examine pathology slides or read radiography films, the duties of a general surgeon include the review of reports of all the medical specialists involved in a case. * * * Therefore, we conclude that Dr. Hall’s evaluation of pathology and radiology reports in formulating his expert opinion did not constitute improper opinion testimony.” Id. (emphasis added).

“Dr. Zimmerman testified that he regularly reviews CT scans, X-ray films, and other tests in evaluating tissue samples for the presence of disease. He explained that, although he has not had formal training in radiology and does not consider himself an expert in that field, he is able to read and interpret CT scans. Dr. Zimmerman further stated that, if he is unable to read a CT scan, he consults with a radiologist. However, he testified that he was able to read and interpret the CT scans of King’s eye without requesting a radiologist’s opinion. Dr. Zimmerman also indicated that, as a pathologist, he is familiar with the cellular manifestations that are characteristic of Sjogren’s syndrome.” King v. Sowers, 252 Va. 71, 78 (1996)(emphasis added). We conclude that the trial court did not err in permitting Dr. Zimmerman’s testimony on these issues, since the evidence showed that he regularly evaluated CT scans in his pathology practice, and that he has skills and experience in recognizing Sjogren’s syndrome. The fact that Dr. Zimmerman did not qualify as an expert in radiology or rheumatology is relevant only to the weight to be given his testimony by the trier of fact.” Id. (citation omitted)(emphasis added).

The Virginia Supreme Court construes Va. Code Ann. §8.01-401.1 strictly, as it is a statute in derogation of the common law against admission of hearsay:

In enacting the 1994 amendments to Code §8.01-401.1, the General Assembly was clearly aware of those dangers and sought to avoid them by inserting two preconditions to the admission of hearsay expert opinions as substantive evidence of direct examination. First, the testifying witness must have ‘relied upon’ the statements contained in the published treatises….

See, Bostic v. About Women OB/GYN, P.C., 275 Va. 567, 576 (2008)(emphasis added)(attached). The Virginia Supreme Court in its Bostic medical malpractice opinion emphasized that “relied upon” means “in forming his opinion,” not “to talk to this jury”:

The statutory standard is not met by an expert’s testimony that he relied upon it only to use ‘to talk to this jury,’ as the testifying witness did in the present case. The statutory term means that the witness must testify that he relied on the article in forming his opinion, which is consistent with the views expressed by the absent author.

Id. at 577 (emphasis added). Bostic follows another medical malpractice decision, May v. Caruso, 264 Va. 358, 361 (2002)(emphasis added), which also speaks in terms of “relied upon” to reach opinion in advance of trial, not just at it: “In that motion [in limine, which was granted and upheld on appeal], he asserted that the executor had failed to identify, as required by Code §8.01-401.1, the specific statements Dr. Waldo had relied upon to reach his opinion….”

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Reliance " »

A Plaintiff once provided Defendants the precise “statements” and citations of his reliable authority more than 30 days before trial in a medical malpractice case. Also, more than 30 days before trial, he gratuitously provided them the full pages of the textbooks and articles in which each of those “statements” appeared.

Va. Code Ann. §8.01-401.1 does not even mention the word “article,” though Defendants still claimed it must be provided. §8.01-401.1 only requires that the discrete specific “statements” relied by a party upon be provided in a medical malpractice suit.

In the medical malpractice trial of May v. Caruso, 264 Va. 358, 361 (2002) (emphasis added), the only authority cited by Defendants, the party “failed to identify, as required by Code 8.01-401.1, the specific statements Dr. Waldo had relied upon to reach his expert opinion.” May simply upheld exclusion for the party failing “to adequately identify the statements,” id. at 363 (emphasis added); it did not hold that the only way to identify statements is to underline/highlight them in an article.

Five years after May, another medical malpractice decision, Budd v. Punyanitya, 273 Va. 583, 588 (2007) (emphasis added), observed that underlining or highlighting is not the only way to adequately identify “statements”. “Budd conceded that he did not provide counsel for Dr. Punyanita with copies of the designated article or otherwise indicate the statement…” Id.

In Healy v. Shegog, No. 00-1249 (Hampton August 2004) (Lerner, J.) and Johnson v. Riverside Hosp., Inc., No. CL002963B-DP c/w No. CL01-30571-DP (Newport News March 2005) (Pugh, J.), Mr. Waterman adequately identified the “statements” simply by providing defendants the typed “statements” with citations. Plaintiffs did not even provide the pages on which the “statements” appeared in those medical malpractice actions, let alone textbooks or articles.

In the medical malpractice case of Johnson v. Riverside Hosp., Inc., No. CL00-29638-DP c/w CL01-30571-DP (Newport News Mar. 7, 2005)(Pugh, J.), defense counsel unsuccessfully objected to Mr. Waterman subpoenaing the corporate Defendant as a trial witness to testify through its most knowledgeable representatives designated by it in discovery. See¸ 3/7/05 Johnson v. Riverside, Final Pre-Trial Order at 2 and 5 (“Plaintiff is entitled to call Defendant through its previously identified Rule 4:5(b)(6) designated representatives” and even new “testimony…outside the scope of the new corporate designation is taken under advisement,” and subsequently was granted at trial). In Johnson, Plaintiff’s first several trial witnesses were Defendant, Riverside Hospital, testifying through its personnel.

“A litigants’ attendance upon the trial may be compelled by the issuance and service upon him of a subpoena …, as is the case with any other witness.” Robertson v. Commonwealth, 181 Va. 520, 532 (1943). Va. Code Ann. §8.01-407. Of course, common sense dictates it must be so that Plaintiff can subpoena the corporate Defendant to testify at trial; otherwise, Plaintiff would be precluded from calling the corporate Defendant in person to testify ore tenus, and instead would be limited to only a deposition.

Court hearing in the medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County and Town of Poquoson, Virginia, showed there is no dispute that: (1) Defendants never charged Plaintiff anything for the 10/5/06 repair surgery, despite charging him for the other 4 surgeries before and after it [“No-Charge”]; and (2) Defendants wrote off as “bad debt” $1,963.53 of bills for the other 4 surgeries [Write-offs”]. That information comes from Defendants’ office computer and is summarized by Plaintiff. See, Defendants’ Charges/No Charges/Write-offs Composite.

First, Defendants’ counsel previously represented to the Court at prior hearing in Marshall that the 10/5/06 no-charge supposedly was “bundling of services” by Defendants, despite none of the other 4 surgeries having been “bundled” with one another. Moreover, the corporate Defendants’ designated representative, Ms. Schwartzlow, had testified she conferred with and received authorization from Dr. Moniz about Write-Offs, prior to any medical malpractice suit being filed. See, Williamsburg Surgery (by Schwartzlow) Deposition at 63-66.

Second, the two cases cited by Defendants are distinguishable on their facts. Both involve “offers” of compromise or remedial assistance in cases not involving medical malpractice. See, Lewis v. Kim, 46 Va. Cir. 227 (Alexandria Jul. 22, 1998) and Novick v. Dillon, 44 Va. Cir. 111 (Richmond Nov. 24, 1997); But in Marshall, the Write-Offs were unilateral conduct by Defendants.

Third, contrary to Defendants’ representation in Marshall, Richmond Circuit Court actually upholds the admissibility of write-offs, where as here, they are unilateral by Defendants versus “offers” to Plaintiff. In another medical malpractice action of Mr. Waterman, Schuster v. Posner, No. LA-134-3 (Richmond Mar. 24, 1997), Judge Markow ruled that Defendants’ medical bill write-off was admissible against interest, that Defendants were free to try explaining it away, and that “it’s up to the jury to decide who to believe”. See, 3/24/97 Schuster v. Posner Transcript at 75. 11-96.20.

Fourth, the day before hearing in Marshall Defendants inconsistently filed to admit their Write-Offs in evidence to reduce Plaintiff’s medical bills at their medical malpractice trial beginning on March 28, 2011. See, Defendants’ Memorandum in Opposition to Plaintiff’s Second Motion in Limine regarding Write-Offs. But it is hornbook law that Defendants cannot approbate and reprobate.

On March 24, 2011, various pre-trial motions again were heard in Circuit Court for York County and the Town of Poquoson, Virginia, in the medical malpractice suit of Marshall v. Moniz, No. CL08-2018. The case goes to jury trial at the Yorktown Courthouse during March 28-April 7, 2011.

The Marshall Court denied Defendants’ Motion to Strike Claim based on Surgery for Lack of Causation. Defendants wanted to keep from the jury evidence supporting the medical malpractice allegation that in the face of patient complaints Defendants delayed in seeing and operating on Plaintiff; but the Court ruled Plaintiff was entitled to present that evidence.

The Court in Marshall also denied Defendants’ Motion to Quash Rule 4:5(b)(6) Trial Subpoena of Williamsburg Surgery, P.C. Defendants tried to prohibit Plaintiff from calling corporate Defendant in person at trial through its most knowledgeable persons previously designated in deposition, but the Court ruled that Williamsburg Surgery, P.C. must honor the subpoena and testify at the medical malpractice trial through its representatives.

Additionally, the Court denied Defendants’ Motion to Reduce Plaintiff’s ad damnum. Defendants unsuccessfully attempted to limit the patients’ medical malpractice suit to $1,850,000.00 instead of the $12,000,000.00 he claimed, but the Court ruled Plaintiff was entitled to maintain and argue for the full amount pleaded in his lawsuit.

Further, the Court granted Defendants’ Motion in Limine concerning Neurology Testimony by Dr. Swartz and Dr. Morgan. That means in the Marshall medical malpractice suit Plaintiff’s general surgeons will not be allowed to corroborate Plaintiff and his neurologist that the patient’s protracted hospitalization and its incidents caused his permanent painful disabling peripheral neuropathy, despite Sr. Swartz and Dr. Morgan having knowledge of and experience with other surgical patients sustaining substantially similar neuropathy from the same cause.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Pre-Trial" »

On March 25, 2011, additional pre-trial motions were heard in the medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County and the Town of Poquoson, Virginia. Among other things, the Court denied Defendants’ Motion regarding Blog of Plaintiff’s Counsel filed by Jason R. Davis, Esq. and Mary Elizabeth Sherwin, Esq. of Kaufman & Canoles, P.C., a defense-oriented law firm based in Norfolk, Virginia.

Defendants through their counsel sought “during the course of trial to require plaintiff’s counsel to immediately remove all information this case from his website and any other public material, discontinue blogging or otherwise publishing about this case, and deactivate the blog.” Jury trial of the Marshall medical malpractice case on the merits is scheduled for March 28 – April 7, 2011, at the Yorktown Courthouse.

The Marshall Court denied the aggressive Motion of the defense, which is covered by Sentara’a $1,850,000.00 medical malpractice policy, as Sentara has purchased the assets of the corporate Defendant, Williamsburg Surgery, P.C., and Sentara employs the individual Defendant, Dr. Moniz. York Circuit Court followed Suffolk Circuit Court in finding the blog postings of plaintiff’s counsel outside of its purview.

In an earlier medical malpractice matter, Mahone v. Sentara Hospitals, No. CL-09-560 in Suffolk, Sentara similarly filed an Emergency Petition to terminate the blog postings by Plaintiff’s counsel about his fruits of a hearing against it. That Petition was denied, and Mr. Waterman was free to continue posting on his blog.

On March 16, 2011, additional pre-trial motions were heard in Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County, Virginia, which is scheduled for jury trial in Yorktown beginning March 28, 2011. Marshall is a medical malpractice lawsuit seeking $12,000,000.00 for a victim who after ostensible routine out-patient surgery, suffered 3 surgical injuries at the hands of Defendants; underwent 5 repair surgeries; was hospitalized for over 8 months; almost died several times while an in-patient; incurred about $1,000,000.00 in medical bills; and is permanently, painfully, and debilitatingly disabled with 4-appendage neuropathy.

Among other things, Defendants continued their Motion to Quash Trial Subpoena to Mr. F. Jay Sweeney, IV to a subsequent pre-trial hearing. Plaintiff subpoenaed Mr. Sweeney as a trial witness to prove financial interest and bias of Sentara, since Plaintiff had no choice but to call so many of his Sentara healthcare providers as his witnesses: as Claim Manager for Sentara, Mr. Sweeney knows that Sentara’s $2,000,000.00 in medical malpractice liability insurance is at risk, thereby giving Senatra a significant financial stake in Marshall’s outcome.

Also, the Court denied Mr. Marshall his request that a spoliation instruction be given about destruction of evidence by Defendant, Dr. Moniz; which explicitly would have entitled the jury to infer negatively about the evidence destruction in deciding liability for medical malpractice. Nonetheless, Mr. Marshall still is entitled in Marshall to have his daughter testify that after his third repair surgery on October 24, 2006, Dr. Moniz drew a picture of Mr. Marshall’s internal anatomy to illustrate his understanding and mistake, but then threw away the diagram.

Additionally in Marshall, the Court granted in part Mr. Marshall’s Second Motion in Limine, precluding the non-treating neurologist hired by Defendant’s from speculating about causation of Mr. Marshall’s 4-appendage neuropathy in this medical malpractice case, since that retained expert admitted he did not know the cause. But the Defendants’ paid expert still is allowed to venture that Mr. Marshall’s neuropathy was not caused by his prolonged hospitalization and its incidents (as opined adamantly by his regular treating neurologist of 4 years) and instead supposedly is just a coincidence with the same.

Further, the Court in Marshall denied Defendant’s Motion to Exclude Reliance on Additional Materials. Thereby, Defendant’s inequitably had sought to preclude Mr. Marshall’s long-time treating neurologist from reviewing and testifying in rebuttal about the same additional patient records on which Defendants’ hired neurologist relied so heavily in the medical malpractice suit.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Evidence" »

On March 15, 2011, Mr. Waterman was recognized for membership in the prestigious Multi-Million Dollar Advocates Forum. This follows a Gloucester jury verdict for $3,250,000.00 for assault and battery, which was coupled with companion jury verdicts of $1,250,000.00 and $500,000.00 plus pre-judgment interest of approximately $1,100,000.00.

Membership is exclusive, strictly limited to those lawyers who have obtained a multi-million dollar verdict or settlement that is final. Initially, Mr. Waterman had been a member of the Million Dollar Advocates Forum for a decade based on a $1,250,000.00 jury verdict he was awarded for a medical malpractice lawsuit in Hampton, Virginia.

In the medical malpractice lawsuit of Marshall v. Moniz, No. CLO8-2018 in Circuit Court for York County and the Town of Poquoson, Virginia, seeking $12,000,000.00 in alleged damages, Defendants have hired a Massachusetts doctor, David W. Rattner, to testify about the “standard of care” here in Virginia. Among other things, Defendants hope to impress the jury by Dr. Rattner being a Harvard doctor with a big resume.

Defendants also hope to keep from the jury in Marshall that Dr. Rattner himself has been sued successfully unto settlement recovery for medical malpractice in Massachusetts. Defendants have moved in limine requesting the Judge to exclude from evidence at trial Dr. Rattner admitting that around 2004-2005 he operated on the wrong site of his patient; that he was sued for his mistake; that approximately $1,000,000.00 was paid to the victim patient; and that the Court record of his case has been sealed from public view.

Conversely, Plaintiff argues that such evidence of mistake by a “standard of care” expert is relevant and even material to the jury in Marshall evaluating the credibility of Dr. Rattner from standpoints of bias, proficiency and/or otherwise. Historically, Dr. Rattner testifies in favor of Defendants at least 85-90% of the time, and is not happy and even has repressed about having been sued by a patient for medical malpractice.

Tellingly, Defendants in Marshall cite no Virginia case excluding the admitted medical malpractice, huge payment, record sealing, and personal humiliation of an expert. Instead, Defendants cite Virginia authority excluding “prior bad acts” of the defendant on “collateral” matters, and just overgeneralize them as supposedly pertaining to any “physician”. E.g., Graham v. Stottlemeyer, 268 Va. 7, 13 (2004).

Significantly, another medical malpractice cited by Defendants, Smith v. Frenkel, No. L03-2784 (Norfolk 2004), underscores the material distinction on this point between a “party” and an “expert”: the Order obtained by Defendants’ counsel in Smith expressly was based on “the representation that the defense does not intend to elicit standard of care testimony from Dr. Frenkel” (emphasis added); whereas conversely in Marshall, the defense intends to elicit “standard of care” plus “causation” testimony from Dr. Rattner. Defendants’ counsel impliedly concedes in Smith that a “standard of care” and “causation” expert committing a mistake, a huge payment being made for it, and being so self-conscious as to a sealed record, is not just a “collateral” matter, but rather is a core one going to credibility, bias, proficiency, etc.

Continue reading "Virginia: Medical Malpractice Expert Bias – a Lawyer’s Impeachment" »

On February 28, 2011, pre-trial Motions were heard in the medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in Circuit Court for the County of York and Town of Poquoson, Virginia. The patient claims $12,000,000.00 in damages arising from a supposedly routine out-patient incisional hernia repair at Sentara Williamsburg Community Hospital allegedly leading to 5 surgeries in 30 days, hospitalization for 8 months, several near-death experiences, approximately $1,000,000.00 in medical expenses, and permanent painful disabling neuropathy.

The Court granted Plaintiff’s Third Motion for Entry of Order in Marshall, memorializing its rulings at hearing on February 14, 2011. Sentara Hospitals and Sentara Williamsburg Community Hospital (collectively “Sentara”) unsuccessfully sought entry of a short Order that did not cover all facets of the medical malpractice “privilege” issue decided previously, versus the comprehensive Order drafted by Mr. Waterman that was factually correct.

The Court also granted Plaintiff’s Motion for Order for Original Records in Marshall, which required Sentara to produce the patient’s original records at the Courthouse in Yorktown for the medical malpractice jury trial beginning on March 28, 2011. Sentara had opposed the patient, even though Defendants admitted that Sentara providing only copies might preclude the patient from being able to bear his burden of proof due to lack of dates on the copies.

Additionally, the Marshall Court required Sentara promptly to identify and provide Plaintiff last known contact information for all requested past and present staff of Sentara. Without timely production by Sentara, the patient may not have been able to subpoena the necessary witnesses to the 2-week medical malpractice trial.

At hearing, Defendants withdrew a doctor who had been named by them as a medical malpractice expert, but who never submitted to discovery deposition by Plaintiff. Plaintiff agreed that one of his key wound care nurses from Riverside would not give opinions in Marshall about dexterity problems that his post-hospitalization neuropathy had caused him.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Hearing" »

On February 14, 2011, St. Valentine’s Day, Mr. Waterman prevailed in substantial part against Sentara Hospitals and Defendants at medical malpractice “privilege” hearing pursuant to Va. Code Ann. § 8.01-581.17. The case is Marshall v. Moniz, No.CL08-2018 in Circuit Court for the County of York and Poquoson, Virginia.

The Surgical Management Committee (“SMC”) of Sentara Williamsburg Community Hospital reviewed the treatment and care of the Plaintiff patient by Dr. Moniz, who operated on him 5 times within a 30-day period. Sentara, Dr. Moniz and his Defendant practice, Williamsburg Surgery, P.C., sought to keep the SMC’s 3-page document from Plaintiff in the Marshall medical malpractice lawsuit.

But the Court in Marshall found that Plaintiff was entitled to all of the factual patient care information in the SMC document, despite accepting that the SMC was a protected peer review committee under §8.01-581.16. It followed Mr. Waterman’s landmark medical malpractice case, Riverside Hosp., Inc. v Johnson, 272 Va. 518 (2006), and its progeny before Judge Pugh in Newport News Circuit Court.

Notably, the favorable ruling by York County Circuit Court effectively reversed the contrary 2008 letter opinion on the identical point by the Circuit Court for the City of Williamsburg and James City County. The predecessor suit to the current Marshall medical malpractice action in York was Marshall v. Sentara, No. 07-614 in Williamsburg/James City, which was non-suited after refiling in York.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Valentine" »

On February 2, 2011, discovery and other pre-trial matters were heard at the Yorktown Courthouse in the medical malpractice case of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County and Poquoson, Virginia. That suit seeks more than $12,000,000.00.

The Court granted Defendants’ Motion to Exclude Veterinarian Experts in Marshall, precluding both Dr. Leonard and Dr. Alexander from testifying as expert or even fact witnesses concerning the medical malpractice alleged. Plaintiff noted his exceptions of grounds of relevance, materiality and undue prejudice, as those veterinarians had disabused Plaintiff’s daughter regarding the assurances given by Defendants about Plaintiff’s deteriorating post-operative condition.

The Court in Marshall also denied Plaintiff’s Motion to Exclude Extra Defense S.O.C. Expert “at this time”. Significantly, however, it ruled further that in all likelihood Defendants would be limited to calling 2 medical malpractice “standard of care” (“SOC”) experts at trial; and that Defendants must pay the costs (including expert fees, court reporter fees, transportation and lodging expenses, and attorneys fees) associated with Mr. Waterman deposing one of the two out-of-state SOC retained by Defendants.

Additionally, the Court in Marshall granted Plaintiff’s Motion to Compel Discovery regarding certain “prior expert consultation history” for Defendants’ experts. Because they had been retained as medical malpractice experts by Defendants’ counsel before, Defendants were required to identify those prior cases.

Further, the Court granted Plaintiff’s Motion to Compel as to Virginia Supreme Court Rule 4:5(b)(6) deposition of the corporate Defendant, Williamsburg Surgery P.C., vis-à-vis it having to tender co-Defendant, Dr. Moniz, as its most knowledgeable person (“MKP”) on multiple topics noticed. Following the medical malpractice precedent of Woodcock v. O’Connell, No. 32067, Order at 2 (Hampton Mar. 25, 1997) and Seibert v. Riverside Hosp., Inc., No. 40366-DP, Second Order at 2 (Newport News Jul. 23, 2007) and Third Order at 1 (Newport News Jul. 23, 2007); the Court in Marshall accepted Defendants stipulating the prior individual deposition testimony of Dr. Moniz as deposition testimony of the Williamsburg Surgery, P.C., but allowed Plaintiff to depose the Defendant corporation through Dr. Moniz on “new items”.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Rulings" »

During January 29-February 1, 2011, Mr. Waterman travels to Montana for the discovery deposition of one of his medical malpractice experts in Marshall v. Moniz, et al., No. CL08-2018 in Circuit Court for the County of York and Town of Poquoson, Virginia. Plaintiff patient in Marshall went in for routine out-patient surgery for incisional hernia repair, but instead ended up hospitalized for 8 months straight, incurred $1,000,000.00 in medical bills, and was disabled permanently; for which he seeks $12,350,000.00 in damages.

The Montana expert deposition in Marshall highlights two significant impediments to a patient maintaining a medical malpractice lawsuit in Virginia and elsewhere. The first is the relative scarcity of quality experts who are willing to testify for patients; the second is the substantial cost of pursuing a claim.

It has been coined that there is a “conspiracy of silence” and a “circling of wagons” by doctors, nurses, and other healthcare providers when it comes to testifying as a patient expert in a medical malpractice case. Most Virginia doctors will not even consider testifying for any patient, regardless the case’s merits; such that victim patients often have to rely upon experts who reside and practice out-of-state.

Second, when serving as experts, doctors typically charge $300.00 - $1,000.00 per hour for all time spent on a medical malpractice case, from record review to conference, from deposition to travel, and everything else. Moreover, experts being located afar incurs significant cost to the Plaintiff patient for travel, accommodations, etc., in addition to valuable attorneys time.

Conversely, Virginia and other healthcare defendants in a medical malpractice case have a comparatively easy time with experts. Doctors, nurses, and other healthcare providers will testify in favor of a colleague much more readily; plus the defendant is backed financially by the much deeper pockets of his insurance company and/or healthcare institution.

On January 11, 2011, The Virginian-Pilot headlined “Deal Would Raise Cap on Malpractice Suits in VA”. It covers a compromise hammered out between the Medical Society of Virginia and the Virginia Trial Lawyers Association to increase the Commonwealth’s statutory limitation of $2,000,000.00 on medical malpractice awards by $50,000.00 per year beginning in 2012 to a maximum of $3,000,000.00 in 2031.

On January 12, 2011, the General Assembly came into session. House Bill 1459 (which may be heard on the house floor by January 21st) and Senate Bill 771 are identical bills incorporating the medical malpractice agreement, which have been filed.

The Virginian-Pilot reported that a Senior Vice President of the Virginia Medical Society said it did not see a pressing need to increase the medical malpractice cap, because only 7, claims in 2008 were greater than $1,500,000.00. But that self-serving angle ignores the caps perennial chilling effect: as defense interests know and intend, the cap tends to operate a “glass ceiling” on many settlements, depressing the dollar amounts of awards and settlements alike versus what they would have been without any cap.

The medical malpractice cap is “pork barrel” legislation for the monied privileged healthcare and insurance industries. The other citizens of Virginia do not get to limit their liability for wrongdoing, and the cap re-victimizes the most severely injured victims of medical malpractice.

Significantly, The Virginian-Pilot also reported in the same article that the Virginia Hospital and Healthcare Association (“VHHA”) still seeks special legislation to “address a 2006 decision by the Virginia Supreme Court that allows factual documents about hospital incidents to be admitted as evidence at trial.” More specifically, VHHA wants the General Assembly legislatively to overrule Mr. Waterman’s landmark medical malpractice case of Riverside v. Johnson, 272 Va. 518 (2006).

Continue reading "Virginia: Medical Malpractice Legislation – a Lawyer’s Perspective " »

On January 10, 2011, Virginia Lawyer’s Weekly recognized Mr. Waterman for obtaining the 8th largest jury verdict in the Commonwealth of Virginia during 2010. On August 26, 2010, he received a jury award of $6,100,000.00 (including pre-judgment interest of $1,100,00.00) for a brain injury victim in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

This is the second time Mr. Waterman has been recognized by Virginia Lawyers Weekly for a top Virginia jury verdict. In 2005, his $1,600,000.00 jury award in the landmark medical malpractice case of Riverside Hosp., Inc. v. Johnson in Newport News, which he successfully defended on appeal to the Supreme Court of Virginia in 2006, was the 13th highest across the state and remains the largest ever in Virginia for a patient fall.

In Virginia, victims of medical malpractice are entitled to know the dollar amount and other terms of liability insurance covering a defendant healthcare provider. However, as a general rule such victims and their lawyers are prohibited from disclosing such insurance coverage at trial.

Virginia’s approach to insurance coverage in personal injury cases is not followed by all states. Indeed, for differing policy reasons, other states not only allow jurors to know about the defendant’s insurance coverage, some even allow the insurer to be named as a defendant.

Despite the courtroom shroud of secrecy, it is truly rare in Virginia for a medical malpractice defendant not to have sufficient coverage. The overwhelming majority of Virginia doctors, nurses, and other individual healthcare providers either have their own insurance policies or are covered by the entity for which they work.

Insurance polices typically are in the full amount of the so-called medical malpractice “cap,” which by Virginia law is the most money for which a negligent healthcare can be held liable, regardless how much actually is awarded by the jury as fair compensation. Currently, Virginia’s “cap” for medical malpractice liability is $2,000,000.00, though that inequitable limit is expected to be increased later in 2011.

Newport News Circuit Court ruled on discovery matters in a patient fall suit, Shakshober v. Riverside Hospital, Inc., alleging medical malpractice and resulting brain injury. That was at contradictory hearing on February 9, 2009.

The primary sweep of the impending Discovery Order was disgorging from Riverside materials and of its Nursing Schools. Included were materials, other information and witnesses on Nursing School policies, procedures, protocols, presentations, and all teaching or instruction about patient falls.

Having its Nursing Schools’ material, information and testimony helps greatly in exposing the truth about what goes on vis-à-vis nursing error and holds Riverside to it. Evidence which otherwise arguably may not be introduced in a medical malpractice case when offered as that of the Riverside entity employing a substandard nurse, still may be admissible as that of Riverside’s Nursing Schools. Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 528-530 (2006).

Secondarily, but importantly, the Discovery Order compels Riverside to tender appropriate corporate representatives for deposition. Riverside unfairly continues not to tender its most knowledgeable personnel for its deposition, which dodges patient fall and other medical malpractice victims pinning down the corporation in testimony.

Healthcare providers uniformly have resisted production of factual patient care records they claim ostensibly are “quality care” and/or “peer review” papers. But they uniformly have lost under Va. Code Ann. §8.01-413 in pending but unserved medical malpractice cases.

Mary Immaculate (thrice), Riverside (twice), Sentara (once), and Carilion (once) has lost contesting the applicability of § 8.01-413(B) to “quality care” and/or “peer review” materials and the propriety of §8.01-413(C) subpoena enforcement during medical malpractice suit. At hearing on March 15, 2007, Williamsburg/James City Circuit Court “FINDS that § 8.01-413(C) is clear and prevails over Va. S. Ct. Rule 4:9(b) and that plaintiff’s Subpoena Duces Tecum is not procedurally flawed. The Court FINDS further that the case law is clear about incident reports and that the Quality Care Control Report in question does not appear to be privileged under Va. Code Ann. §8.01-581.76 or §8.01-581.17 or under Virginia’s ‘work product’ doctrine.” See, 4/30/07 Justis v. Sentara Order (emphasis added). Judge Ford rejected Sentara’s objections despite its Medical Affairs Vice-President and Quality Board Chairman testifying. Id.; 3/5/07 Justis v. Sentara Hearing Transcript Excerpt at 15. No incident report database, sentinel event report or investigative materials were at the issue in Justis.

Likewise, at hearing on July 10, 2007, Newport News Circuit Court “FINDS that § 8.01-413 is clear and prevails over Va. S. Ct. Rule 4:9(b); that the patient’s Subpoena Duces Tecum is not procedurally flawed; and that the patient’s Subpoena is proper. The Court FINDS FURTHER that ‘facts [and] information related to patient care’ are not privileged under Va. Code Ann. § 8.01-581.17 or work product doctrine.” See, 8/3/07 Licare v. Riverside Order (underlining added). Judge Tench ordered Riverside produce in camera “all ‘hospital records and papers’ … of or relating to the patient , Rosemary A. Licare, including particularly without limitation any Quality Management System database entries and any Sentinel Event Report, Root Cause Analysis , investigations email and/or other printed electronic materials whatsoever.” Id. (underlining added). Judge Tench then redacted and disseminated Riverside records. See, 10/31/07 Licare v. Riverside Judge’s Letter.

Similarly, at hearing on January 30, 2008, Newport News Circuit Court “FINDS that patient’s Va. Code Ann. §8.01-413(C) Subpoena Duces Tecum is proper on the ground a statute is superior to a rule, and …ORDERS… that Mary Immaculate Nursing Center, Inc. shall provide the patient all fact-based materials responsive to the Subpoena, even if claimed to be ‘quality’ ones”. See, 2/26/08 Morel v. Mary Immaculate Order at 1 (underlining added). Incredibly, Mary Immaculate had withheld 9 categories of documents – quality care reports, investigative files, incident logs, weekly fall committee meeting minutes, narrative reports, 24 hour nursing reports, fall data collection forms, daily communication tools, and skin tear investigative forms – with 6 of the 9 categories withheld proving to be 590 pages of purely fact-based patient records. Judge Pugh expedited to the bottom-line: “And if it’s fact based, I don’t care if it’s in a quality control document or not, if it’s fact based, he’s entitled to it.” See, 1/30/08 Morel v. Mary Immaculate Hearing Transcript Excerpt at 20.21-33 (emphasis added).

Another evidentiary hearing in Morel was held on April 7, 2008, because Mary Immaculate claimed another 56 pages of records about the patient’s care were protected. After in camera review and evidentiary hearing, Judge Pugh opined that most of those 56 pages were not privileged either for not being “associated with a protected committee,” not being “part of the deliberative process” and/or not being “made in anticipation of litigation”. See, 5/5/08 Morel v. Mary Immaculate Order at 2-4. Subsequently, Mary Immaculate supplemented with more ostensibly privileged records, astoundingly aggregating to over 700 pages with a medical malpractice case pending!

Continue reading "Medical Malpractice: Va. Code Ann. §8.01-413 – a Lawyer’s Application" »

Some healthcare providers strenuously deny the applicability of Va. Code Ann. §8.01-413(B & C) while suit for medical malpractice is pending. But tellingly, others have admitted its applicability, even with suit unserved.

After Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), Riverside thrice admitted the applicability of §8.01-413(B) to ostensible “quality care” records – all while medical malpractice suit was “pending”. First, for pre-suit and post-suit §8.01-413(B) requests in Shakshober v. Riverside, Riverside voluntarily produced multiple ostensible “quality care” papers. See, 11/16&21/06 & 3/17/08 Shakshober v. Riverside Letters of Waterman and Defense Counsel; 2/16/06 Shakshober v. Riverside Fall Quality Care Control Report (“QCCR”); 2/26/08 Shakshober v. Riverside Midas Risk Management Worksheets; 2/17/06 Shakshober v. Riverside Procedure/Practices Quality Care Control Report; 2/16/06 Shakshober v. Riverside Falls Abstraction Data Tool; and 2/26/08 Shakshober v. Riverside QMS Transaction Summary Report Excerpt.

Second, with another medical malpractice case, Seibert v. Riverside, pending in response to pre-service §8.01-413(B) request for incident reports, Riverside voluntarily provided the QCCR. See, Seibert v. Riverside 11/29/06 & 1/2/07 Letters of Waterman and Defense Counsel; and 7/14/05 Seibert v. Riverside RHS Quality Care Control Report. Riverside admitted its QCCR actually was created by its medical malpractice insurer; “contains factual information that is provided…in the ordinary course of its business”; and is “a factual record that pursuant to [8.01-581.17] now is discoverable.” See, 3/13/07 Seibert v. Riverside Hearing Transcript Excerpt at 13.13-24 & 21.3-8

Third, with yet another medical malpractice case, Licare v. Riverside, pending in response to Licare’s pre-service § 8.01-413(B) request for the deceased’s incident reports and database, Riverside belatedly provided voluntarily part of the Quality Management System (“QMS”) incident report database. See, 2/16/07, 2/27/07 & 7/2/07 Licare v. Riverside Letters of Defense Counsel to Waterman; and 2/5/07 Licare v. Riverside QMS Database Transaction Summary Report. At hearing, Riverside admitted: “it’s my understanding that that Indicator Text [of the database] is essentially a transposition of what was in the incident report [‘not currently in existence’].” See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 27.3-19.

Despite refusing to comply with Va. Code Ann. §8.01-413(B) in medical malpractice, wrongful death, vehicle accident, and other personal injury cases, some healthcare providers try to avoid enforcement by companion §8.01-413(C). Their threshold argument that statutory enforcement under §8.01-413(C) constitutes impermissible litigation discovery is unfounded.

Va. S. Ct. Rule 4:9 (c) is inapplicable to a statutory enforcement proceeding under §8.01-413(C). Most Subpoenas are issued pursuant to Rule 4:9(c) as litigation discovery. But a §8.01-413(C) Subpoena is different. Contrary to Rule 4:9(c) subpoenas, it enforces patient’s pre-service statutory right to healthcare provider “records or papers” without resort to ordinary litigation discovery after service. Significantly, §8.01-413(C) specifically directs issuance of this Subpoena pursuant to it as the sole remedy for non-compliance with §8.01-413(B).

It is hornbook law that a specific statute of the General Assembly takes precedence over general Rules of the Court. See, e.g., Virginia Constitution, Art. ¬6, Sec. 5. Indeed, Riverside and Mary Immaculate have so conceded on point in medical malpractice cases. See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 29.3-14; 1/30/08 Morel v. Mary Immaculate Hearing Transcript at 18.18-21. Further, it also is hornbook law that §8.01-413(C) and Rule 4:9(c) should be harmonized; and the only way to harmonize them is to recognize §8.01-413(C) as an entirely different and independent source of authority for issuance of a Subpoena from Rule 4:9(c) or, at the least, that §8.01-413(C) is a limited statutory exception to the general, Rule 4:9(c).

Holding Rule 4:9(c) superior and preemptive would eviscerate the clear letter and intent of §8.01-413(B&C), thereby encouraging, facilitating and countenancing potential and/or actual defendants to withhold all or at least key records or papers of victim patient plaintiffs in violation of statute. Also, in medical malpractice cases, it inequitably would force a patient plaintiff to meet his statutory pre-service expert certification requirements under §8.01-20.1 and/or §8.01-50.1 without the benefit of the facility records and papers to which he is entitled by statute, frustrating the same. Additionally, it violates the procedural and substantive due process rights of victim patients against offending defendants.

Medical malpractice, vehicle accident, wrongful death, product liability, premises liability, sexual abuse, and all other personal injury cases depend on complete prompt access of victims to their healthcare records. That critical access is guaranteed by Va. Code Ann. §8.01-413.

§8.01-413(B) requires provision of “records or papers” to a patient: “copies of hospital, nursing facility, physician’s or other health care provider’s records or papers should be furnished within 15 days of receipt of such request to the patient….” Notably, §8.01-413(B) speaks of all “records or papers,” not some amorphous “patient chart”. The latter just is an artificial construct of facilities, insurers and their lawyers; and self-servingly excludes whatever they choose. As Judge Tench observed in a recent medical malpractice case, “Medical records are much more than just the chart hanging there.” See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 38.16-23 (emphasis added). §8.01-413(B) is broad, encompassing and not susceptible of such convenient defense abuse.

§8.01-413(C) requires the patient in a pending civil case to issue a Subpoena for his records or papers if the healthcare provider fails to comply with a written request under §8.01-413(B). “[U]pon the failure … to comply with any written request made in accordance with subsection B…, the patient …may cause a subpoena duces tecum to be issued. The subpoena may be issued…in a pending civil case .... *** The subpoena shall be returnable within 20 days of proper service, directing the [healthcare provider] … to produce and furnish copies of the reports and papers to the clerk who shall then make the same available to the patient....” (emphasis added). The letter of §8.01-413(C) mandating enforcement through a “pending” case evinces the intent of companion §8.01-413(B) mandating provision of records and papers during a “pending” case. Also, the Court can award attorney’s fees, court costs and all other expenses for non-compliance. §8.01-413(C).

§8.01-413 is analogous to §2.1-340, et seq., with purpose, motivation and litigation status likewise being irrelevant. Va. Code Ann. §2.1-340, et seq. is the Virginia Freedom of Information Act (“FOIA”). The Virginia Supreme Court held “the purpose or motivation behind a [FOIA] request is irrelevant to citizen’s entitlement to requested information.” Associated Tax Servs., Inc. v. Fitzpatrick, 236 Va. 181, 187 (1988). Following Fitzpatrick, Justice Lemons ruled a requestor’s status as medical malpractice plaintiff was irrelevant to and did not disqualify her Virginia FOIA request. Stevens v. Lemmie, 40 Va. Cir. 499, 513-514 (Petersburg 1996). “The broad policy of FOIA mandates that public information be made available to all citizens regardless of their interest in the information,” wrote Justice Lemons. “This Court finds no exception to FOIA that precludes its use where the information sought may become evidence in a pending or contemplated civil suit.” Id. at 514. §8.01-413 is analogous to §2.1-340: it too reflects a broad exception-less policy mandating availability of information. A requestor’s litigation status under §8.01-413 likewise is irrelevant.

Historically in medical malpractice cases, the defense enjoyed knee-jerk success with convincing Courts to treat so-called “sentinel event reports” differently than other “incident reports”. But that has changed this decade, and stands to erode further in the face of Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006), the landmark case handled by Avery T. “Sandy” Waterman, Jr., Esq.

In two of Mr. Waterman’s medical malpractice cases, Courts have ruled that the factual information of sentinel event reports is not protected. First, in Brown v. Riverside, Judge Hubbard found discoverable Riverside’s Sentinel Event Quality Assurance Report, even though the underlying incident occurred one month earlier. See, 1/8/02 Brown v. Riverside Order. Second, in Seibert v. Riverside, Judge Pugh found all factual information in Riverside’s sentinel event and other investigative materials discoverable, even though the underlying incident occurred weeks earlier and Riverside had tried to avoid disclosure with a “quality care” Affidavit. See, 6/11/07 Seibert v. Riverside Hearing Transcript Excerpt.

The defense spin is sentinel event reports are unique and sacrosanct. But Mr. Waterman debunked that through the Riverside School of Professional Nursing Director in the Seibert medical malpractice case. It’s director admitted that a “sentinel event” just means a “significant event,” like a death or other serious injury, about which statistics are kept and inter alia taught to students routinely. See¸ 4/20/07 Seibert v. Riverside Rule 4:5(b)(6) Deposition of Riverside (Deborah Sullivan-Yates) Excerpt at 25.14-27.19. Moreover, the fact that facilities are supposed to report sentinel events to the Joint Commission on Accreditation of Health Organizations (“JCAHO”) raises two significant points. First, the requirement of routine reporting eviscerates any ostensible “work product” claim that a true Sentinel Event Report instead was made in anticipation of litigation. Second, facilities hate to report incidents as sentinel events, so often do not – which puts the facility at risk with JCAHO for not reporting as required and its counsel at risk with the Court for not being candid as required. When the initial gambit of false name-dropping as a sentinel event report fails to evoke knee-jerk protection, defense counsel then recharacterizes the same as investigative materials supposedly covered by “work product;” as unsuccessfully was attempted in Seibert.

Following the landmark case of Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), handled by Avery T. “Sandy” Waterman, Jr., Esq., healthcare providers routinely are being forced to provide their incident reports and other investigative materials for medical malpractice cases. Toward stemming the changing judicial tide, some defense counsel are extending themselves with representations.

In the medical malpractice case of Seibert v. Riverside, for example, defense counsel represented to the Court that there was “no sentinel event report” and that only an “incident report” was involved in Brown v. Riverside, see, 6/11/07 Seibert v. Riverside Hearing Transcript Excerpt at 42.24-43.6; that the document withheld in Seibert was a “sentinel event report,” which supposedly was sui generis; id. at 27.13-28.16; and that plaintiff already had all factual information by the incident report. Id. at 29.8-30.4. Further, defense counsel crafted a “quality care” Affidavit, claiming the materials in question were privileged “quality care” documents issued by a protected committee. See, 4/3/07 Seibert v. Riverside Affidavit of Delana Merenda.

But all were inaccurate defense representations to the Court. There was a sentinel event report in Brown, Judge Hubbard found it not privileged, and it was produced –which defense counsel in Seibert knew from being defense counsel in Brown. See, 1/5/02 Brown v. Riverside Order; and 3/8/97 Brown v. Riverside Sentinel Event Quality Assurance Report. Also, there was more factual information not in the Seibert incident report. Compare 7/14/05 Seibert v. Riverside RHS Quality Care Control Report with 6/22/07 Seibert v. Riverside Judge’s Letter with 7/27/05-8/24/05 Redacted Investigative Materials. Additionally, there was only investigative materials and not a true sentinel event report in Seibert. Id. Further, the Seibert investigation issued at the behest of the Risk Manager. See, 7/9/07 Seibert v. Riverside Rule 4:5(b)(6) Deposition of Riverside (Delana Merenda) Excerpt at 1-4 & 32.34-46.21. Deposition of Merenda exposed her Affidavit as a farce. Such misrepresentations in medical malpractice cases should be sanctioned and not condoned by Courts.

Patients have a fundamental right to know the facts of what a commissioned third-party did to his or her body and mind. Patient care inherently is an invasion of privacy interests, the medical malpractice of which denies life, liberty and/or the pursuit of happiness. Because these patient rights are of constitutional proportions, they are inalienable and cannot be abrogated, abridged and/or infringed by statute or common law for the special interest benefit of those hired third-parties. The fact that healthcare providers are paid servants of the patients cuts against any protectionism. §8.01-581.17 is unconstitutional as drafted and as applied. It impacts most the class of patients who need disclosure most. It also denies them procedural and substantive due process.

Claimed “privilege does not permit a litigant to commit a fraud upon a court.” Owens-Corning Fiberglass Corp. v. Watson, 243 Va. 128, 141 (1992). Peterson v. Fairfax Hosp. Sys., Inc., 32 Va. Cir. 294 (Fairfax 1993)(medical malpractice misrepresentation vitiates privilege). Moreover, defense discovery frauds are admissible in evidence. John Crane, Inc. v. Jones, 274 Va. 581, 589-590 (2007); Owens-Corning, 243 Va. at 141-142. “[W]hen deciding whether a fraud has been committed . . . a controlling factor is ‘whether the misconduct tampers with the judicial machinery and subverts the integrity of the court’.” Id. at 142.

Eppard v. Kelly, 62 Va. Cir. 57, 59-61 (Charlottesville 2003), another medical malpractice case, exposed the “quality” scheme of the University of Virginia Medical Center (“UVMC”). In 1991, UVMC’s “Incident/Occurrence Reports” summarily were retitled “Quality Reports” and claimed “generated to initiate quality review of Health System processes, practices, and procedures for quality assurance purposes.” Id. at 60. Retitled Reports were routed to various committees ostensibly concerned “primarily with health care improvement activities,” but whose membership included and/or was reported to by “risk management and insurance” and “legal” personnel. Id. at 60-61. UVMC and PLT also maintained “patient databases” and “incident report with medical chart review material in a database format” accessible by the Risk Manager. Id. at 60, 65.

Eppard found “there may be incentives to immediately commingle the creation of an incident report with healthcare evaluation by using § 8.01-581.17 to avoid discovery of damaging information or documents.” Id. at 64. Further, “since the University’s Risk Management staff as well as the PLT staff assigned to the healthcare committees have become part of the healthcare improvement process, the system appears to be designed to wrap large segments of the patient treatment review investigation under a blanket of privilege.” Id. “However, ‘peer review’ should not be used to shield from disclosure medical records not generated initially for peer review objectives.” Id. at 63. Eppard held “commingling” the “healthcare improvement committee” with legal, risk management and insurance interests did not create privilege under § 8.01-581.17. Id. at 64. Eppard ordered discovery of “Case Notes,” i.e., “an incident report with medical chart review material in a database format,” and “Database Notes,” including “medical discussions [that] list investigative facts unearthed by the various parties involved.” Id. at 65.

In a recent medical malpractice case, Judge Tench in Newport News seized upon the old scam: “It seems to be that what the healthcare providers does is they try to couch all this as confidential and say the only thing that the patient gets is the patient’s chart … .” See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 38.16-23 (emphasis added). After in camera review, Judge Tench and redacted and disseminated Riverside records. See, 10/31/07 Licare v. Riverside Judge’s Letter.

“The protection provided by § 8.01-581.17 is a qualified privilege similar to the privilege afforded by Rules of Court 4:1(b)(3),” observed Justice Lemons in Stevens v. Lemmie, 40 Va. Cir. 499, 512 (Petersburg 1996)(Lemons, J.)(emphasis added), a medical malpractice case. The limited privilege for certain “committee” communications pertains only “unless a Circuit Court, after a hearing and for good cause arising from extraordinary circumstances being shown, orders the disclosure of such proceedings, minutes, records, reports, or communications.” Va. Code Ann. § 8.01-581.17 (emphasis added).

For the analogous work-product privilege, determination of “good cause” is “a matter within the trial court's discretion and will be reversed only if the action taken was improvident and affected substantial rights.” Rakes v. Fulcher, 210 Va. 542, 546 (1970). Applying a Rule 4:1(b)(3) “substantial hardship” analysis, the claimed patient “quality care” documents and data should be disclosed under § 8.01-581.17(B), regardless whether they are not discoverable under § 8.01-581.17(C). See, e.g., McMillan, 45 Va. Cir. at 397; McGuin v. Mount Vernon Nursing Ctr. Assocs., L.P., 45 Va. Cir. 386, 386-387 (Fairfax 1998); Benedict, 10 Va. Cir. at 438.

The McGuin medical malpractice case found the incident report was not privileged and, alternatively, Plaintiff had substantial need and no equivalent where the patient had died. 45 Va. Cir. at 386. McMillan is broader, recognizing incident reports as sui generis – a unique source of contemporaneous corroborating factual information – regardless patient and/or nurse availability. “Where, as here, the document constitutes a source of information relevant to the inquiry which is not reasonably discoverable from other sources, it may be ordered produced. * * * From other testimony and argument, it is clear that incident reports are prepared whenever there is a fall, and thus they would constitute the only reasonable source of facts to challenge or corroborate the expert’s contention.” 45 Va. Cir. at 397 (emphasis added). Benedict is to the same effect.

“The injured patient . . . is at such an unfair [dis]advantage: one single individual, sick and weak, pitted against a colossal corporate giant with staff and resources unlimited and personnel schooled in the techniques of avoiding or minimized losses for claimed negligence. Already incapacitated and perhaps further damaged by the incident and at the complete mercy of the personnel from whom she seeks recovery and relief, she is hardly in a position to undertake critical investigation of what happened. * * * * [T]he Court is satisfied that enough substantial need has been shown to require the production of these documents and that obtaining their substantial equivalent could not only not be obtained ‘without undue hardship’ but could probably not be obtained at all. * * * * When the input by one party to an issue in dispute has been so handicapped at the outset because of the conditions of health and the location and environment in which the incidents occurred and when measured against the relative investigative strengths of the parties, natural notions of fair play lean heavily toward opening rather than closing doors that might balance the contest. The potential harm to the Claimant in refusing the discovery sought far outweighs the benefit to the Defendant.” 10 Va. Cir. at 438.

More recently in a medical malpractice case handled by Avery T. “Sandy” Waterman, Jr., Esq., Seibert v. Riverside on June 11, 2007, the court found “good cause arising from extraordinary circumstances being shown,” based on Riverside’s malpractice rendering the patient brain-damaged. See, 6/11/07 Seibert v. Riverside Hearing Transcript Excerpt at 37.7-49.22; and 7/23/07 Seibert v. Riverside Second Order. Seibert was followed and extended in Licare v. Riverside on July 10, 2007, another medical malpractice case of Mr. Waterman, with the court finding good cause “arising from extraordinary circumstances being shown,” based on Riverside’s malpractice killing the patient and, alternatively, on Riverside’s document “retention” policy of destroying its original incident reports. See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 50.20-51.15; and 8/3/07 Licare v. Riverside Order.

The last sentence of § 8.01-581.17(C) provides another broad exception that negates any privilege for routine incident reports, electronic incident data, sentinel event reports and investigative materials in medical malpractice cases: “nor shall this section preclude or affect discovery of or production of evidence relating to hospitalization or treatment of any patient in the ordinary course of hospitalization of such patient.” (emphasis added). Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 534 (2006), the landmark case of Avery T. “Sandy” Waterman, Jr., Esq., held that a “QCCR, or incident report,” was not privileged because it was “a factual recitation of a fall that occurred during Johnson’s hospitalization and the immediate action taken when Johnson was found on the floor.”

“Any evidence, then, that relates to the treatment of any patient or his hospitalization ... is discoverable, notwithstanding whatever privilege the preceding language may have granted.” Johnson, 9 Va. Cir. at 199. “How can these words be given any other meaning than what they clearly say: this section shall NOT preclude, it mandates, or affect discovery of evidence that relates to a patient's hospitalization or treatment. And this relation is not quantified; any relation to treatment or hospitalization, however infinitesimal, however generalized, is all that is required.” Id. at 199-200 (emphasis in original). An “Incident Report . . . contains facts and evidence relating to the hospitalization or treatment of said patient in the ordinary course of her hospitalization.” Atkinson, 9 Va. Cir. at 23. “Because a hospital may . . . contend that various reports are not [of] a patient’s treatment does not make it so.” Benedict, 10 Va. Cir. at 437.

The Riverside medical malpractice case held that an incident report database excerpt not privileged because it was a “factual description of Johnson’s fall and that of another patient, which according to [the Risk Manager’s testimony], was based on a QCCR. Like the QCCR, the information on this [QMS database] page related to the raw data about the hospitalization and treatment of specific patients.” 272 Va. at 534. Post-Riverside courts similarly find unprotected incident report databases, see, e.g., 6/24/08 Shakahober v. Riverside Order; 8/3/07 Licare v. Riverside Order; 7/23/07 Seibert v. Riverside Second Order; and 2/15/05 Riverside v. Johnson Order; “sentinel event” reports and investigative materials. See, e.g., 8/3/07 Licare v. Riverside Order; 7/23/07 Seibert v. Riverside Second Order; 1/8/02 Brown v. Riverside Order; and 5/5/08 Morel v. Mary Immaculate Order at 3-4.

The last sentence of § 8.01-581.17(C) provides a broad exception negating privilege for routine incident reports, electronic incident data, sentinel event reports and investigative materials in medical malpractice cases. “Nothing in this section shall be construed as providing any privilege to the hospital medical records kept with respect to any patient in the ordinary course of business of operating a hospital . . . .” (emphasis added). Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 534 (2006), landmark case of Avery T. “Sandy” Waterman, Jr., Esq., held Riverside’s “QCCR, or incident report,” was not privileged because it was “written documentation of the circumstances of Johnson’s fall, kept in the normal course of business”. (emphasis added).

Institutions “have tried to classify routine accident or incident reports which are completed by employees on a regular basis as quality assurance documents.” Messerly v. Avante Group, Inc., 42 Va. Cir. 26, 27 (Rockingham 1996). But they “do not rise to the level as contemplated by the statute of being quality assurance deliberative documents.” E.g., Bradburn v. Rockingham Mem’l Hosp., 45 Va. Cir. 356, 360 (Rockingham 1998); Huffman v. Beverly California Corp., 42 Va. Cir. 205, 216 (Rockingham 1997); Messerly, 42 Va. Cir. at 27-28. “The QCCRs, QCCRs, or ‘Pink Sheets’ (. . . ‘Incident Reports’) are prepared by staff personnel whenever there is an untoward incident which occurs at the hospital.” Bradburn, 45 Va. Cir. at 358. “They are simply recitations of the accident that occurred, the witnesses who were present, and other objective facts that can be ascertained from the eyewitnesses to the incident.” Id. at 360. They “will likely have been produced by a person with the background and training to know what questions to ask and what information to collect. The person preparing the report is also likely to have access to those people most knowledgeable about the incident at a time the incident is fresh in mind.” Hurdle, 49 Va. Cir. at 329. They are standard in all health care facilities. E.g., Eppard v. Kelly, 62 Va. Cir. 57, 63 (Charlottesville 2003); Huffman, 42 Va. Cir. at 216; Messerly, 42 Va. Cir. at 26. Cf., Riverside v. Johnson, 272 Va. at 530-531.

Healthcare institutions essentially assert that them self-servingly choosing to keep their patient incident reports, incident report databases, sentinel event reports and/or investigative materials separate from the patient’s chart is self-proving of their privileged status in medical malpractice cases. But “the Incident Report in question falls within the purview of the last sentence of Section 8.01-581.17. It is a hospital medical record kept with respect to the patient . . . in the ordinary course of the business of [Defendant] operating its hospital . . . .” Atkinson, 9 Va. Cir. at 23. Bradburn, 45 Va. Cir. at 360; Huffman, 42 Va. Cir. at 216; Messerly, 42 Va. Cir. at 28. Defendant in Hurdle even conceded the point. 49 Va. Cir. at 329. “Because a hospital may not choose to call a document ‘medical record’ or may contend that various reports are not maintained in the ordinary course of a hospital's business . . . does not make it so.” Benedict, 10 Va. Cir. at 437.

“What are, or should be, records kept in the ordinary course of treating a patient or operating a hospital with respect to patients, that is the ultimate question. The ordinary course of a hospital’s function surely includes the prevention of accident or mishaps to those who have been entrusted to its care. Charting the ordinary course of a patient’s treatment would or should require description of events out of the ordinary that relate to a patient’s health and well-being.” Benedict, 10 Va. Cir. at 436 (emphasis added).

“Clearly, injuries to a patient, whether in a hospital or a nursing home, need to be included in the patient’s medical chart and cannot be shielded from discovery by the mere expediency of forwarding these ‘reports’ to a so-called quality control committee.” Messerly, 42 Va. Cir. at 28; Eppard, 62 Va. Cir. at 63; Bradburn, 45 Va. Cir. at 361; Huffman, 45 Va. Cir. at 216. Significantly, incident reports sometimes bear a telltale badge: like other patient medical records kept in the chart, they may be stamped (in the upper right-hand corner) with the patient’s identification plate, medical record number and/or the like.

Continue reading "Medical Malpractice: Va. Code Ann. § 8.01-581.17(C) – a Lawyer’s Exception (I)" »

Toward frustrating medical malpractice claims, hospitals, nursing homes and other healthcare institutions routinely keep “double books” about personal injury incidents – a laundered “patient chart” and other trenchant facility records about the patient. Healthcare institutions routinely withhold the latter from patients, claiming statutory quality-care/peer-review privilege under Va. Code Ann. §8.01-581.17. But Avery T. “Sandy” Waterman, Jr., Esq. champions victim patient rights and debunks ostensible privilege in succeeding posts.

The “statutory language [of §8.01-581.17] is clear, unambiguous, and unqualified.” HCA Health Servs. of Virginia, Inc. v. Levin, 260 Va. 215, 220 (2000). “When statutory language is clear and unambiguous, there is no need for construction by the court; the plain meaning of the enactment will be given it. Courts must give effect to legislative intent, which must be gathered from the words used, unless a literal construction would involve a manifest absurdity.” Id.

8.01-581.17 “provides a privilege in plain language which is limited narrowly to medical staff committees, utilization rule committees, and other committees specified in § 8.01-581.16.” Klarfeld v. Salsbury, 233 Va. 277, 284 (1987)(italics in original)(underlining added). “[T]he scope of § 8.01-581.17 is more limited [than § 8.01-581.16]. Stated differently, § 8.01-581.17 does not include an ‘other entity’ referred to in § 8.01-581.16 which is not a ‘committee’.” Id.

“Ambiguities in the [medmal] statutes should not be extended to enlarge the privilege.” Johnson v. Roanoke Mem’l Hosps., Inc., 9 Va. Cir. 196, 199 (Roanoke 1987). “Any ambiguities in [§ 8.01-581.17] must be strictly construed for, as the U.S. Supreme Court has noted, ‘exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth’. United States v. Nixon, 418 U.S. 683, 709-10 (1974).” Curtis v. Fairfax Hosp. Sys., Inc., 21 Va. Cir. 275, 277 (Fairfax 1990). Recently writing for the Virginia Supreme Court, Justice Lemons reiterated that a statute (such as §8.01-581.17) “in derogation of the common law… must be ‘strictly construed and not…enlarged in [its] operation by construction beyond [its] express terms’.” Univ. of Va. Health Servs. Found. v. Morris, 275 Va. 319 (2008)(Lemons, J.)(denying immunity to a hospital healthcare provider in the context of medical malpractice).

Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), a landmark medical malpractice case of Mr. Waterman, held “communications … provided to” covered committees were “not privileged”; “factual information of patient care” is not confidential or privileged; and use of factual patient care information in the peer review or quality care committee process does not render it privileged. “These limitations on the application of the privilege are consistent with preserving the confidentiality of the quality review process while allowing disclosure of relevant information regarding specific patient care and treatment. *** It is the deliberative process and the conclusions reached through that process that the General Assembly sought to protect. *** The deliberative process involving evaluation of patient safety conditions and the design of initiatives to improve the health care system both necessarily begin with factual information of patient care incidents occurring within the health care facility. The use of this factual information in some way in the peer review or quality care committee process alone is insufficient to automatically cloak such information with the protection of no-disclosure. Factual patient care information that does not contain or reflect any committee discussion or action by the committee reviewing the information is not the type of information that must ‘necessarily be confidential’ in order to allow participation in the peer or quality assurance review process. Rather such information is the type, contemplated by Subsection (C) of Code §8.01-581.17, which the General Assembly has specifically instructed should not be brought within the scope of those items entitled to the privilege under any other part of the section. Applying these principles, we conclude that the documents at issue here are of the nature of those described in Code §8.01-581.17(C) and are not privileged.” 272 Va. at 532-533 (emphasis added). Cf., Stevens v. Lemmie, 40 Va. Cir. 499, 508 (Petersburg 1996)(Lemons, J.).

Continue reading "Medical Malpractice: Va. Code Ann. § 8.01-581.17 – a Lawyer’s Overview" »

Use of neuroradiology is critical to diagnosis of traumatic brain injuries in general. Use of the best imaging techniques may be crucial to accurate evaluation of mild and diffuse axonal injury in particular.

Computerized Axial Tomography (“CAT”), renamed Computer Tomography (“CT”), scans still are entrenched as the front-line neuroradiological imaging for many because of their relative availability and low cost. But “CAT fever” has its limitations and detractors, with CT scans showing false negatives in virtually all cases of mild traumatic brain injuries and in some others too.

Magnetic Resonance Imaging (“MRI”) is more sensitive than CT. But most traditional clinical MRI also show mild traumatic brain injuries as normal, because it relies on signs of edema and structural abnormalities, which are just the tip-of-the-iceberg fordiffuse axonal injury.

The vast majority of MRIs are low resolution 0.15-1.5 Tesla (“T”); relatively few are the “gold standard” high-resolution 3T available by 2004. In the United States, there are only a half-dozen 7T (located in Boston, New York City, Philadelphia, Pittsburgh, Minneapolis and Portland); and a single 9.4T in Chicago, the world’s most powerful medical one, which hopefully soon will offer real-time view of metabolic processes safely.

New MRI-based diffusion tensor imaging (“DTI”) advances sensitivity toward micro-structural lesions and changes implicated thereby. This brilliant cutting-edge technique measures fractional anisotropy variations and fiber bundle discontinuity in white matter locations.

Functional imaging techniques of positron emission tomography (“PET”) Single Photo Emission Computed Tomography (“SPECT”) and MRI-based spectroscopy (“MRS” or “MRSI”) are complementary to the foregoing anatomical imaging. PET measures cellular function, SPECT measures blood flow, and MRS/MRSI measures chemical changes – all as metabolic markers of neuronal integrity or damage.

Continue reading "Virginia Traumatic Brain Injuries – a Lawyer’s Diagnostic" »

Traumatic brain injuries frequently are closed-head sequelae of high-velocity acceleration, deceleration and/or rotational force incidents, such as vehicle accidents or patient falls. Significantly, no direct impact is necessary for causation, although often it is present and intensifies injury.

Rapid external acceleration, deceleration and/or rotational forces propel the unprotected soft brain within the hard bony skull. Those forces strain, stretch and finally shear delicate minute blood vessels and nerve fibers irrepairably, and are followed by biochemical degradation.

Much traumatic brain injury consists of diffuse axonal injury. Lesions and lacerations dispersed throughout the brain are the observable tip-of-the-iceberg of such injury and ultimately result in permanent degeneration, scarring and/or cavities.

With injury occurring at the neuronal level, the damage may not be discernable using only a CT scan, particularly in cases of mild traumatic brain injury. That primary diagnostic technique may have to be supplemented with other more expensive neuroimaging, such as MRI and even PET, SPECT or EEG; so not to overlook demonstrable injury.

Despite many victims having an outwardly normal appearance, clinically-observable damages flowing from traumatic brain injury are numerous, wide-ranging, and frequently permanent, increasing and disabling, such as persistent postconcussive syndrome – hence the national Center for Disease Control refers to it as the “silent epidemic”. Classic neurobehavioral symptoms, deficits and disorders include but are not limited to: physical (headaches, neck/back pain, tinnitus, hearing loss, aural-sensitivity, blurred vision, diplopia, photo-sensitivity, diminished taste, diminished smell, fatigue, drowsiness, seizures, tremors, sleep disturbance, vertigo/dizziness, imbalance, decreased appetite, and increased risk of altzheimer’s disease and morbidity); psychological/affective (personality change, depression, anxiety, irritability, agitation, aggression, impulsivity, moodiness, disinhibition, altered sexuality, and limited self-awareness); cognitive (visual-perceptual alteration, attention/concentration impairment, memory dysfunction, decreased processing/reaction, decreased understanding/insight, decreased reasoning/judgment, language/communication difficulties and learning problems); and socioeconomic (increase risks of interpersonal disputes, regression/dependency, suicide, divorce, substance abuse, vocational problems, occupational problems, chronic unemployment/underemployment, and economic strain).

On November 27, 2008, The Daily Press featured authority about patient falls in Virginia. That expert authority on medical malpractice was introduced by Avery T. “Sandy” Waterman, Jr., Esq., who has obtained a record verdict and record settlements in Virginia patient fall cases. Per The Daily Press, over 20 years, published reliable expert authority has emphasized the following.

“A review of fall literature confirms that various researchers have identified risk factors (measurable patient characteristics, medical or nursing diagnoses) that have a potential to predict falls in elderly population, thus suggesting preventability. Falls are one of the most common reasons that nurses…and hospitals are sued for medical negligence. Many falls are predictable and should not be considered to be an expected sequela of the aging process. Hospitalization can pose a major risk for older persons….”

“Falls are a common problem and nurse should be aware of patients who many fall. Various safety precautions can be taken to prevent falls.”

“Older adults…are a high-risk group for falls with resulting injuries. More aggressive measures seemed necessary to prevent further patient falls. These measures included additional patient safely devices [such as ‘bed alert’ systems], more stringent staff education in patient fall prevention, and the development of a written protocol of nursing intervention levels….”

On December 26, 2008, The Daily Press featured medical malpractice cases of Avery T. “Sandy” Waterman, Jr., Esq., including three patient fall cases settled for $2,600,000.00 in 2008. The article is “Attorney fights to get the facts on patient care in hospitals,” subtitled “He contends most institutions keep ‘double books’ that can conceal details about injuries”.

It covers Mr. Waterman’s landmark medical malpractice case decided by the Virginia Supreme Court, Riverside Hospital, Inc v. Johnson, 272 Va. 518 (2006) . That decision mandated healthcare institutions provide patients their factual medical records, including particularly incident reports and electronic databases. But Riverside and other institutions continue to resist Johnson and attempt to overturn it legislatively through their activist trade association, Virginia Hospitals & Healthcare Association. To date, however, their attempts to “couch” factual patient medical records as confidential have been unsuccessful in Newport News Circuit Court. The article recounted Mr. Waterman’s courtroom successes in compelling healthcare institutions, including most notably a facility that withheld over 700 pages of factual patient care records.

Virginia law provides compensation for wrongful death caused by vehicle accidents, patient falls, other medical malpractice, defective products or other negligence. A wrongful death action must be brought by the personal representative of the deceased’s estate, i.e., the administrator, administratrix, executor or executrix. Generally any Virginia wrongful death lawsuit must be filed within two years of death, though there are some very limited exceptions.

Virginia statute specifies a jury or judge may award compensation for the damages of wrongful death. Those include, but are not limited to: (1) sorrow, mental anguish and solace of certain family members; (2) loss of income of the deceased; (3) services, protection, care and assistance of the deceased to those family members; (4) hospital and other healthcare expenses of the deceased; (5) funeral expenses; and for willfulness, wantonness or recklessness showing conscious disregard for the deceased’s safety (6) punitive damages up to $350,000.00. Solace of family members includes loss of society, companionship, comfort, guidance, kindly offices and advice of the deceased.

Family members entitled to compensation in Virginia wrongful death cases are classes of so-called “statutory beneficiaries”. The primary class consists of any surviving spouse, all surviving children and any child of a predeceaseing child of the deceased. If nobody is in that class, the secondary class is any parent, any sibling, and any other relative living with and finically dependent on the deceased. Adopted children and step-siblings are covered. See generally, Va. Code Ann. 8.01-50, et seq.

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Patient falls are a leading cause of personal injury in Virginia hospitals, nursing homes and other healthcare facilities. In larger hospitals, patient falls are daily incidents. Most patient falls are predictable and avoidable, so constitute medical malpractice.

Each Virginia patient must be assessed for risk of falls upon admission and during shifts. A patient is scored as a low, high or extreme fall risk. All patients are entitled some protections from falls.

Patients are assessed on known fall risk factors. Leadings factors are advanced age, diminished mentation, unsteady gait, and especially non-compliance. Additional factors include medications, incontinence and diagnoses.

Low-risk interventions for all include periodic checks, call buttons, patient instruction, family education, non-skid slippers, night lights, and beds lowered and locked. High-risk interventions add alarm systems, side rails, mats, and color-coded magnet, sticker and band symbols. Extreme-risk interventions are sitters and physical restraints of torso, wrists and/or ankles.

Brain injury and hip or femur fracture are frequent serious personal injuries from patient falls and often cascade the patient into a downward spiral. Brain injury often prematurely condemns a patient to institutionalization in nursing homes unto death. The majority of elderly patients who fall and break a hip die within the year.

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Medical malpractice in Virginia often results in serious personal injury. Common examples of medical malpractice are patient falls, medication errors, surgical oversights, condition misdiagnoses, and treatment failures. All healthcare providers are liable to patients for personal injury damages caused by medical malpractice.

The Virginia Medical Malpractice Act covers hospitals, HMOs, nursing homes, physicians, dentists, pharmacists, registered nurses, licensed practical nurses, optometrists, podiatrists, chiropractors, physical therapists, physical therapy assistants, clinical psychologists, clinical social workers, professional counselors, and licensed dental hygienists. See, Va. Code Ann. 8.01-581.1, et seq. The Act requires all such healthcare providers to use the “degree of skill and diligence practiced by a reasonably prudent practitioner in the [same or related] field of practice of specialty”. Otherwise, the healthcare provider is guilty of medical malpractice in Virginia for causing personal injury.

The Virginia Medical Malpractice Act inequitably “caps” all personal injury awards to patients. The medical malpractice cap was increased to $2,000,000.00 effective July 1, 2008. Any award for personal injury in excess of the cap must be reduced to it by the court. The cap should be increased legislatively to cover catastrophic personal injuries in Virginia in excess of it and the ravages of compounding annual inflation.

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