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On June 10, 2016, Circuit Court for Fairfax County, Virginia ordered that Plaintiff’s counsel was entitled to videotape by professional videographer the neurological/physical examination of the Plaintiff personal injury victim pursuant to Va. S. Ct. Rule 4:10.  The case is Cohen v. Dziorlor, No. CL2015-0014084,...

On June 27, 2016, the Supreme Court of the United States of America vacated and remanded in McDonnell v. United States, No. 15-474, Slip Op., 579 U.S. ___ (Sep. 27, 2016). Writing for a unanimous Court, the Chief Justice overturned the criminal convictions of Virginia’s...

On June 23, 2016, the Virginia Supreme Court issued Commonwealth v. Virginia Ass’n of Counties Group Self Insurance Risk Pool, No. 150930.  It is a New Kent County declaratory judgment action between insurance companies over coverage, arising out of a state medical malpractice and federal...

On June 22, 2016, the United States Attorney General announced the largest combined Medicare, Medicaid and Tricare fraud take-down of healthcare professionals and others in history.  The 2016 record-setting $900,000,000.00 bust involved 301 doctors, nurses, pharmacists, physical therapists, occupational therapists, clinic operators, patient recruiters, patients,...

On June 16, 2016, the Virginia Supreme Court issued Dorman v. State Indus., Inc., No. 151088, a special case of product liability for personal injuries.  Defendant manufacturer’s atmospheric heater emitted carbon monoxide (“CO”) that rendered plaintiff apartment dwellers unconscious. First, Dorman held that “absence of other...

Trial is the monthly journal of the American Association for Justice (“AAJ”), formerly the American Trial Lawyers Association (“ATLA”).  Its issue for June, 2016, marquees “Protecting Workers’ Rights”. June 2016 Trial’s “Verdicts & Settlements” section highlights “MOTOR VEHICLE LIABILITY: Rental car company employee rear-ends motorist.”  Id....

On June 2, 2016, the Virginia Supreme Court handed down Pike v. Hagaman, No. 151193, a Richmond medical malpractice case.  By 5-2 split, it upheld the sovereign immunity of a V.C.U. nurse applying the 4-factor test of James v. Jane, 221 Va. 43 (1980).  Id....

On July 6, 2016, Mr. Waterman argued before the Virginia Supreme Court in favor of Plaintiff/Appellants in his consolidated declaratory judgment action appeals, Patrick Lee Cherrie, Administrator of the Estate of Greda A. Harvey, Deceased, and Hubbard A. Davis, Executor of the Estate of James...

The peer-reviewed Journal for Patient Safety estimates that medical malpractice causes more than 440,000 deaths in the United States each and every year.  John T. James, A New, Evidence-Based Estimate of Patient Harms Associated With Hospital Care, 9 J. Patient Safety 122-28 (Sept. 2013).  That...

On April 21, 2016, in the Spotsylvania appeal of Haynes v. Haggerty, No. 150666, the Virginia Supreme Court held that Plaintiff’s personal injury claims for child sexual abuse which accrued during 1971-1975 and expired in March, 1977 (2 years after her 18th birthday) were time-barred...

The Trial Lawyer is the quarterly legal journal of The National Trial Lawyers Top 100 Trial Lawyers.  Its issue for Spring 2016 has two feature articles involving medical malpractice and the special case of product liability: “OPIOID EPIDEMIC SPINNING OUT OF CONTROL,” id. at 30-32,...

On May 24, 2016, Circuit Court for City of Newport News entered Opinion and Order in the wrongful death case of Hicks v. Pruden, No. CL15-10365. It found that an Automobile Loss Notice of the allegedly offending motorist and the related interview notes of his...

Trial is the monthly journal of the American Association for Justice (“AAJ”), formerly the American Trial Lawyers Association (“ATLA”).  Its issue for May, 2016, is dedicated to “Medical Negligence”.   Under “CAPPING Plaintiffs’ Rights,” two articles in Trial cover statutory caps on damages of medical malpractice victims,...

On April 14, 2016, the Virginia Supreme Court affirmed in the Fairfax appeal of Lopez-Rosario v. Habib, No. 150587, that Plaintiff lacked standing to file medical malpractice suit in her own name because co-guardians already had been appointed for her.  Id. at 7.  The Court...

On April 14, 2016, in the Fairfax wrongful death appeal of Gerald F. Ragland, Jr. and Andrew J. Narod v. Gyoengyver Soggin, Administrator of the Estate of Evan M. Soggin, Deceased, two Leclair Ryan attorneys were able to avoid the monetary sanctions imposed on them...

On April 21, 2016, in the Fairfax appeal of Mikhaylon v. Sales, No. 150552, the Virginia Supreme Court held that the principles of judicial estoppel did not preclude Defendant from denying assault and battery in a civil suit after pleading guilty to assault and battery...

On March 31, 2016, the Virginia Supreme Court disposed of the Roanoke appeal in Jones v. Slate, No. 150789, by unpublished Order.  By providing only a written statement of facts in lieu of a transcript, which “often creates difficulty for the Court and the litigants...

On April 27, 2016, respected JAMA Surgery published a peer-reviewed article entitled “Seven procedures account for 80% of emergency general surgery operations, deaths, and complications, US study finds”.  Those suspect surgeries, all of which involve the digestive system, are: (1) partial colectomy; (2) small bowel...

On May 3, 2016, world-renown British Medical Journal published “Medical error – the third leading cause of death in the US,” authored by a medical professor and a medical research fellow at Johns Hopkins University, one of America’s most respected medical institutions.  As the cause...

In medical malpractice cases, Defendant seek to strike or dismiss punitive damages claims, arguing inter alia that the alleged misconduct was not malicious, intentional, etc.  However, the proper focus is not on the highest (or even the higher) levels of scienter that obviously suffice for...

Trial is the monthly journal of the American Association of Justice (“AAJ”), formerly the American Trial Lawyers Association (“ATLA”).  Its issue for April, 2016, headlines “Our Aging Population,” and features four articles on nursing home cases, a genre of medical malpractice litigation.  Id. at 20-35.   First,...

By letter opinion on April 21, 2016, Newport News Circuit Court granted Plaintiff patient’s Motion to Enforce §8.01-413(C) Subpoena Dues Tecum and denied Defendant hospital’s Motion to Quash Subpoena Duces Tecum and for Protective Order in the alleged wrongful death case of Myers v. Riverside...

This past week alone, multiple doctors and other healthcare providers across the nation were prosecuted, convicted and/or sentenced criminally for misconduct that also constitutes medical malpractice civilly.  For example:   On April 14, 2016, a Texas federal court jury unanimously convicted a Dallas doctor (Dr. Jacques Roy)...

On April 19, 2016, Motions were heard in the medical malpractice case of Eason v. Sentara Hospitals and Sentara CarePlex Hospital, No. CL12000470 in Circuit Court for the City of Hampton, Virginia.  The Court in Eason denied Sentara’s Defendants’ Motion for Protective Order regarding all...

A demurrer is used solely to make “the contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted.” Va. Code §8.01-273(A). “Because a demurrer goes to a whole...

A third-party beneficiary patient must be “an intended beneficiary under the contract;” the contracting parties “clearly and definitely intended that the contract confer a benefit upon him”. Environmental Staffing Acquisition Corp. v. B&R Constr. Mgmt., Inc., 283 Va. 787, 793 (2012)(emphasis in original). Yet Virginia’s...

Senate Bill 1619 was passed by Virginia’s General Assembly in 2019, and becomes Va. Code §8.01-379.2:1 effective July 1, 2019. It establishes that a party or potential litigant has a duty to preserve evidence that may be relevant to reasonably foreseeable litigation. It further provides...

Medical malpractice Defendants often seek transfer to more conservative defense-friendly juror venues, claiming forum non convenieus. “Defendants’ Motion and affidavits to the contrary notwithstanding, I suspect that the possible composition of the jury is the primary motivation.” Morris v. City of Harrisonburg, 42 Va. Cir....

On April 6, 2016, Mr. Waterman’s medical malpractice case for alleged wrongful death in Joanne T. Rauchfuss, Administratrix of the Estate of George William Rauchfuss, Jr., Deceased v. Peninsula Radiological Associates, Ltd. and Benjamin J. Pettus, M.D. No. CL1302754V-04(DP) in Circuit Court for Newport News,...

On April 4, 2016, Mr. Waterman filed Opening Brief of Appellants in his consolidated nursing facility appeals, Cherrie/Davis v. Virginia Health Servs., Inc., No. 151758 in the Supreme Court of Virginia, which now is posted on this website under “Practice” and thereunder “Nursing Homes”.  It...