Virginia Injury Attorney Blog

The March 2013 issue of Trial, the monthly magazine of the American Association for Justice (“AAJ”), formerly the American Trial Lawyers Association (“ATLA”), is entitled “Protect the Innocent”. It marquees 3 crime victim writings, the first being “BULLYING BASICS,” which addresses school-related bullying of students as “an emerging area of law”. Id. at 14-19.

The next feature article is “A VIOLATION OF TRUST,” which covers child sexual abuse cases, particularly for negligent hiring, supervision and/or retention against institutions such as religious organizations and childcare centers. Id. at 20-26. Trial also reports a $3,000,000.00 California school settlement for alleged negligent security in “Special-Needs Student Raped”. Id. at 10.

Mr. Waterman successfully represented a student assaulted and battered unto brain injury at Gloucester High School, obtaining in 2010 a $6,100,000.00 jury verdict against the assailant, James Newsome, and high school assistant-principal that was remanded for retrial. Mr. Waterman also has represented Virginia victims of child sexual abuse successfully.

THE VIRGINIA STATE BAR REQUIRES ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN'S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.

The July 2012 issue of Trial reports a favorable verdict entitled “CLERGY NEGLIGENCE: Archdiocese Fails to Protect Student from Abusive Priest”. The jury awarded $1,000,000.00 for the sexual abuse victim’s “post-traumatic stress, depression, and other psychological problems”. Id. at 10.

Over a 2-year period, a Roman Catholic priest allegedly molested the crime victim 21 times. The priest’s archdiocese - a corporation! - was found “negligence and reckless” because it allegedly “failed to supervise [the priest], prevent his access to children, and warn of his history of pedophilia despite a previous sexual abuse complaint against him at another assignment.” Id.

Trial is the monthly magazine of American Association Justice (“AAJ”), www.justice.org, formerly known as the American Trial Lawyer’s Association (“ATLA”). Mr. Waterman has been a member of AAJ for decades, and has represented sexual abuse and other crime victims.

Washington Lawyer is the official monthly publication of the District of Columbia Bar. Mr. Waterman has been an active member in good standing of the D.C. Bar from 1995 to present.

The cover story in its June 2012 issue is “Beyond the Penn State Scandal: Child Abuse Reporting Laws”. That lead article about child sexual abuse includes the following sub-topics: A Culture Divided, Frightening Statistics, Society Mobilized, Mandatory Reporting, False Accusations, Call for Tougher Laws, Public Reluctance, Fostering Culture of Openness, and National Awareness Campaign. Id. at 22-30.

Toward helping such sexual crime victims, “We need to change the norm of silence and standing by to one of openness and engagement,” proclaims the President and Chief Executive of Prevent Child Abuse America. Id. at 25. Yet there is a countervailing fear: “The concern is that if everyone is a mandatory reporter, and if we get the public so enflamed, they may start seeing child abuse everywhere,” observes Thomas I. Hafemeister, Associate Professor specializing in health care law and policy at the University of Virginia School of Law. Id. at 26.

Under D.C., Virginia and other laws, in additional to being criminal, sexual abuse is actionable civilly for monetary damages. Mr. Waterman represents such crime victims.

The Safety Report Spring 2012 issue covers “SEXUAL HARASSMENT: STILL A PROBLEM IN THE WORKPLACE”. A form of sexual abuse, it is reported by a recent AOL Jobs Survey that “one in six persons has been sexually harassed in the workplace” and that of those victims “43 percent say it was by a manager” – yet 65% of sexual harassment victims report it. Id. at 16.

Prohibited workplace sexual harassment occurs “when one employee makes continued, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, to another employee against his or her wishes.” See, Title VII of the Civil Rights Act of 1964. By Federal law, victims of such job-related sexual abuse can “recover damages for loss of income, emotional pain and mental anguish, inconvenience, loss of enjoyment of life and other damages”. Id. at 17.

In certain instances of work-related sexual harassment, Virginia law may entitle the victim additional restitution. Mr. Waterman handles select special cases like these.

Commonwealth v. Blaxton, No. 102360 (Va. Mar. 2, 2012) involved the Sexual Violent Predators Act (“SVPA”), Va. Code Ann. 37.2-900, et seq. Defendant committed rape, forcible sodomy and attempted sodomy on a crime victim.

Since his criminal sexual abuse rendered him a sexually violent predator, the Virginia Supreme Court held that as a matter of law that he was ineligible for transfer out-of-state for supervised probation. Id. at 3-4. Hence rules of the Interstate Commission for Adult Supervision (“ICAOS”) under the Interstate Compact, Va. Code Ann. §53.1-176.2, applicable to a mere “sex offender” did not control. Id. at 4.

Trial is the monthly magazine for the American Association for Justice (“AAJ”), formerly the American Trial Lawyer’s Association (“ATLA”), of which Mr. Waterman has been a member for decades. Its March 2012 issue titled “Countdown to Trial” includes Verdicts & Settlements about crime victims.

One case report is entitled “School Fails to Protect Student from Sexual Abuse”. Another is “Sexual Abuse of Minor”.

On January 13, 2012, the Virginia Supreme Court issued its opinion in DeMille v. Commonwealth, 2012 Va. LEXIS 13, a case involving criminal sexual abuse. DeMille affirmed the judgment of Circuit Court for Fairfax County that the defendant rapist was a “sexual violent predator in need of treatment in a secure [civil] facility” after his scheduled release from the Department of Corrections. Id. at *16.

Specifically, DeMille found under Va. Code Ann. §37.2-900, et. seq., the Civil Commitment of Sexually Violent Predators Act (“SVPA”), that the “factual determination of whether a respondent is a sexually violent predator likely to engage in sexually violent acts is to be based on the totality of the record, including but not limited to expert testimony”. Id. at *1 (emphasis added). Mr. Waterman handles personal injury cases for sexual abuse and other crime victims.

The Winter 2011-2012 issue of The Safety Report features as an article “15 WAYS TO PROTECT YOUR CHILD FROM SEXUAL ABUSE”. “Some child abuse studies have reported that as many as 1 in 3 females and 1 and 6 males report experiencing some form of sexual abuse before age 17”. Id. at 38.

The article notes that the overwhelming percentage of child sexual abuse is perpetrated by someone the child knows, usually a relative. Id. at 39. It also notes that for a variety of reasons, such crime victims typically do not disclose sexual abuse for years if at all. Id.

Trial is the monthly magazine of the American Association for Justice (“AAJ”) www.justice.org. Its December 2011 issue features an article on crime victims: “When Torts and Crimes Overlap”.

“When a civil suit involves a criminal act, the perpetrator’s prosecution can be an invaluable source of information,” highlight Trial’s crime victim coverage. “Building a good relationship with the prosecutor is the key to tapping into that resource and obtaining justice for the victim.” Id. at 19.

Mr. Waterman has been a member of AAJ since 1987. He regularly represents crime victims in tort cases, including particularly victims of sexual abuse and most recently a brain injury victim who was awarded $6,100,000.00 by a jury in Circuit Court for Gloucester County, Virginia.

During its 2011 Session, Virginia’s General Assembly passed companion House Bill 1746 and Senate Bill 1145. They extend from 2 to 20 years the limitation period within which an infant or incapacitated victim of sexual abuse can file a civil personal injury lawsuit.

This statutory amendment recognizes that many sexual abuse victims suffer protracted delays in reporting and suing due to a variety of factors such as fear, guilt, repression and/or otherwise caused by the underlying criminal offense. It became effective on July 1, 2011.

In Harris v. Commonwealth, 279 Va. 123 (2010), the Virginia Supreme Court addressed Virginia’s Civil Commitment of Sexually Violent Predators Act, Va. Code Ann. §37.2-900, et seq., In a victory for crime victims, it upheld the civil commitment of an incarcerated sex offender to the custody of Virginia’s Department of Mental Health, Mental Retardation and Substance Abuse Services for “appropriate treatment and confinement in a secure facility”. Id. at 127, 129.

The Commonwealth of Virginia had identified the wrong predicate criminal offense in its Petition for inclusion in its “database as a prisoner incarcerated for a sexually violent offense”. Id. at 126-127. But Harris found no error in the trial court allowing the Commonwealth to amend and not dismissing the Petition, id. at 129-130; thereby safeguarding potential crime victims from a potential recidivist being released after serving his criminal sentence.

On December 9, 2009, Mr. Waterman obtained confidential settlement of a sexual abuse case. It resolved the Federal civil lawsuit of Zaruba v. Brooks, No. 4:09cv86 in the Newport News Division of United States District Court for the Eastern District of Virginia.

The sexual abuse victim in Zaruba sued for being molested as a child. The Defendant previously had pleaded guilty criminally to the reduced offense of “aggravated sexual battery”.

The victim having a criminal guilty plea by the accused is invaluable to a successful civil suit. Otherwise, the sexual abuse alleged stands to be a hotly disputed core issue at civil trial.

Senate Bill 1275 passed the 2009 Virginia General Assembly. Effective July 1, 2009, it amends Va. Code Ann. §8.01-399.

That statute codifies the so-called “physician-patient” privilege. That privilege renders confidential from disclosure communications between patients and physicians in the course of treatment for brain injuries and other personal injuries.

Before the amendment, overly aggressive physicians asserted that the privilege was theirs to waive, and disclosed confidential information of their patients to help defense-oriented interests, such as other healthcare providers committing medical malpractice, vehicle accident offenders, defective product manufacturers, defective premises owners, sexual abuse perpetrators and other criminals. But the statutory amendment is clear that the patient alone will control whether any privilege is waived and confidential communication is disclosed.

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Senate Bill 1154 passed Virginia General Assembly in 2009. Effective July 1, 2009, It amends Va. Code Ann. §8.01-413.

Prior to the amendment, healthcare providers routintely were charging a flat fee of $10.00 plus $0.50-$1.00 per page for providing their patients their account statements. That obviously cost victims of vehicle accidents, nursing home abuse, other medical malpractice, product or premises defect, sexual abuse or other crimes who simply were trying to get their bills paid.

After the amendment, healthcare providers must provide all patients an itemized listing of charges and account balance at no cost. Indeed, a victim patient will be entitled to request free printouts up to three times every twelve months.

For many patients the cost savings will be multiplied across numerous healthcare providers. Most victims of vehicle accidents, nursing home abuse, other medical malpractice, product or premises defect, sexual abuse or other crimes have to consult the variety of healthcare providers.

House Bill 2035 passed the 2009 Virginia General Assembly. Effective July 1, 2009, it amends Va. Code Ann. §8.01-419.

That statute routinely is introduced unto evidence in cases of vehicle accidents, nursing home abuse, other medical malpractice, product liability, premises liability and other cases involving wrongful death, brain injury and other personal injuries. Its actuarial table of life expectancy helps a jury or judge quantify the duration of a victim’s damages.

Virginia citizens generally living longer translates into higher life expectancy figures. That means victims of wrongful death, brain injury and other personal injury generally will suffer longer and deserve greater damage awards.

Senate Bill 39 passed the Virginia General Assembly in 2009. Effective July 1, 2009, it amends Va. Code Ann. §46.2-373.

The new amendment increases the threshold at which motor vehicle accidents are subject to written reports by the police. The vehicle damage threshold moves from $1,000.00 to $1,500.00 to be reportable.

From a personal injury standpoint, the amended statute stands to create more “he said, she said” disputes after-the-fact, because no independent officer will be taking statements or otherwise recording facts independently. Hence, the onus will be on victim’s of such vehicle accidents to identify witnesses themselves, which may prove a daunting if not impossible task given the accident circumstances and their personal injuries.

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.

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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