On June 6, 2008, the Virginia Supreme Court addressed the superseding intervening cause instruction. The medical malpractice case of wrongful death is Williams v. Le, 276 Va. 161 (2008). In Williams, the defendant radiologist failed to communicate directly to the treating physician a positive Dopplar ultrasound, and the patient later...
On June 6, 2008, the Virginia Supreme Court upheld a medical malpractice verdict for roughly $100,000.00 unsupported by a medical expert. The case is Webb v. Smith, 276 Va. 305 (2008). The Virginia Supreme Court in Webb reiterated that “in medical malpractice cases, ‘expert testimony is ordinarily necessary to establish the appropriate standard...
On October 31, 2008, the Virginia Supreme Court decided issues of physician-patient relationship and damages proximate causation. The “wrongful birth” medical malpractice case is Fruiterman v. Granata, 276 Va. 629 (2008). In Fruiterman, the plaintiff mother claimed medical malpractice for her Ob/Gyn failing to inform her about first trimester testing for genetic...
On January 16, 2009, the Virginia Supreme Court handed down an opinion on qualification of out-of-state experts pursuant to Va. Code Ann. §8.01-581.20. The medical malpractice case of wrongful death is Jackson v. Qureshi, 277 Va. 114 (2009). Jackson addressed the statutory presumption, “knowledge” requirement, and “active clinical practice” requirement for medical...
On January 16, 2009, the Virginia Supreme Court resolved a wrongful death action and a survival action for personal injuries. The medical malpractice case is Centra Health, Inc. v. Mullins, 277 Va. 59 (2009). Centra Health upheld an estate representative maintaining concurrent damage causes of action for wrongful death and...
On April 18, 2008, the Virginia Supreme Court opined on the propriety of a roughly $1,000,000.00 damages award to a surviving spouse arising out of a car accident.The wrongful death case is Wright v. Minnicks, 275 Va. 579 (2008). In Wright, the surviving spouse was awarded damages for the...
On January 16, 2009, the Virginia Supreme Court issued an opinion rejecting the “unavoidable accident” and “sudden emergency” doctrines and upholding a $490,000.00 jury award in a car accident scenario. The death and personal injury case is Hancock-Underwood v. Knight, 277 Va. 127 (2009). Hancock-Underwood abrogated the “unavoidable accident” doctrine...
House Bill 3296 and Senate Bill 1142 passed the 2009 Virginia General Assembly. Effective July 1, 2009, they amend Va. Code Ann. §37.2 and §54.1. These amendments constitute extensive revisions to the Virginia Health Care Decisions Act. These include, but are not limited to, appointment and authority of agents, determination...
House Bill 1799 passed the Virginia General Assembly in 2009. Effective July 1, 2009, it amends Va. Code Ann. §2.2-3705.3. The amendment adds the Virginia Fraud and Abuse Whistle Blower Protection Act. A “whistle blower” is a state employee who reports or testifies about fraud or abuse. The act prohibits employers...
Senate Bill 843 failed to pass the 2009 Virginia General Assembly. It was defeated by the wealthy powerful healthcare industry, including the Virginia Hospital and Healthcare Association (“VHHA”), which represents the one hundred leading hospitals and other healthcare institutions in Virginia. Va. Code Ann. §8.01-581.15, the so-called...
Today the University of Virginia (“UVA”) School of Law in Charlottesville, Virginia, conducts First-Year Oral Arguments in its traditional Moot Court Competition. Avery T. “Sandy” Waterman, Jr., Esq. has been invited and is participating as a Judge. Competition ever is stiff and winning always an honor. Senator Edward...
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...
House Bill 2057 passed the Virginia General Assembly in 2009. Effective July 1, 2009, it amends Va. Code Ann. §8.01-52.1 and §8.01-581.20:1. Prior to amendment, the statute rendered certain so-called “gestures expressing sympathy or general sense of benevolence” inadmissible against a healthcare provider in cases of nursing home abuse and...
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...
enate 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...
On March 24, 2009, Gloucester Circuit Court denied an Amended Motion to Dismiss, which asserted that an Amended Complaint seeking installment and other payments was time-barred upon the statues of limitation for breach of contract and fraud. The case is Altizer v. Altizer, No. CL08-584. The Gloucester Circuit...
In Virginia, the statute of limitation for a fraud is two years from the time when a reasonable person should have discovered it. But when exactly the statute begins to run depends on whether there were multiple occurrences. “A cause of action for breach of a contract or...
In Virginia, the statute of limitation for a breach of written contract is five years and of oral contract is three years. But when exactly the statute starts to run depends on whether there are multiple breaches. Over half a century ago, the Supreme Court of...
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...
House Bill 1876 passed the 2009 Virginia General Assembly. Effective July 1, 2009, it amends Va. Code Ann. §46.2-1078.1. Toward avoiding vehicle accidents, the new amendment prohibits operating a motor vehicle while using any hand held personal communication device to enter or read a text message. However, it exempts...
Pre-trial mediation has enjoyed such success and popularity that increasingly Virginia circuit courts are requiring litigants to submit to it shortly before trial. In Newport News, Hampton, York County and other venues in Hampton Roads, parties must mediate vehicle accidents, medical malpractice, and many other cases. The...
Mediation is a dispute resolution process as an alternative to trial. It is similar to arbitration, but significantly is voluntary and non-binding. Over the past decade in Virginia, mediation has gained in popularity. Competing private companies comprised principally by many retired judges and secondarily by some...
In 1986, Virginia codified the Uniform Arbitration Act. Va. Code Ann. §8.01-581.01, et seq. The 16-section Act presumptively governs arbitration agreements in Virginia absent clear contractual provisions to the contrary. Arbitration is a binding dispute resolution procedure whereby a “judge” agreed upon by the parties decides a...
Lawsuits for wrongful death, brain injury, and other personal injuries contain an ad damnum, i.e., the dollar amount of damages sought by the plaintiff victim. Unlike some other states, Virginia allows a plaintiff’s lawyer to mention the ad damnum to jurors during trial. By statute, a plaintiff’s lawyer in state...
Virginia Supreme Court Rules 4:8 and 4:9 specify time deadlines – usually 21 but sometimes 28 days – for a party to object or to answer and produce. Thus, a failure to object on time maybe deemed a waiver of the objection, particularly in medical malpractice cases where counsel...
Principles of equitable estoppel apply to all areas of Virginia law. Virginia’s Premarital Agreement Act (“Act”), Va. Code Ann. § 20-147, et. seq., is no exception. Under the Act, a spouse need not sign the agreement at the same time as the other spouse, or even before...
Today begins the annual convention of the Virginia Trial Lawyer’s Association (“VTLA”) in Williamsburg, Virginia. Avery T. “Sandy” Waterman, Jr., Esq. is one of its Williamsburg Society members and will be attending. VTLA is an association of trial lawyers from throughout Virginia, many of whom practice vehicle accident,...
Defendants routinely oppose motions for leave to amend in wrongful death, brain injury and other cases against them. But Virginia courts routinely grant leave, consistent with the liberal mandate of Virginia Supreme Court Rule 1:8. “Leave to amend shall be liberally granted in furtherance of the ends of justice.” Va....
Virginia defendants may cite Pulte Home, Inc. v. Parex, 265 Va. 518 (2003) for allegedly impermissible conclusory pleading, in hopes of a quick summary dismissal without addressing the merits of a suit. But Pulte Home usually is readily distinguishable on its extreme facts. In Pulte Home, the plaintiff’s “allegation merely...
This is the last of three posts covering duties of care for protection under Virginia law against criminal conduct of third-parties causing wrongful death, brain injury, and other personal injuries. Virginia recognizes (gratuitously) assumed duties of care. The Virginia Supreme Court recently reaffirmed that one can assume...