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Sometimes an unscrupulous adversary lulls another into a false sense of security and inaction, and then seeks to capitalize on technicalities implicated thereby, such as time deadlines missed by the unsuspecting victim. Fortunately Virginia courts are empowered to resolve such injustices based on equity instead...

The General Assembly enacted the Statute of Frauds, making certain oral contracts unenforceable. It explicitly required a contract be “in writing and signed by the party to be charged” in enumerated cases. Va. Code Ann. § 11-2. For well over a century however, the Commonwealth’s Courts have...

On February 23, 2009, Gloucester Circuit Court ruled that a Plaintiff brain injury victim was entitled to all school records concerning his attack, despite Gloucester High School keeping them solely in the files of his attacker, another student named Co-Defendant with its Assistant Principal. The case is Gregory...

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...

Virginia defense counsel can file a Motion to Strike various aspects of a lawsuit in vehicle accident, sexual abuse, product liability, premises liability, and all other personal injury cases. Such Motions may strike at particular claims, exhibits, etc. A Motion to Strike “requires the trial court to...

Virginia defense lawyers can demur that a lawsuit fails to state a legally cognizable claim in vehicle accident, wrongful death, brain injury, and all other personal injury cases. Although a Demurrer does not admit purely legal conclusions, it does admit all pleaded facts, and inferences therefrom;...

Virginia defense attorneys can interpose a wide variety of potentially dispositive issues on Special Plea in Bar in vehicle accident, brain injury, wrongful death, and all other personal injury cases. On Plea, the asserting party bears the burden of proof on the issue raised. E.g., Geographic Network...

Virginia jurisprudence holds that an owner may be liable for “negligent entrustment” by permitting an unfit driver to use his vehicle if it causes a vehicle accident. “The correct test of liability is whether the owner knew, or had reasonable cause to know, that he was...

Some parents and others allow underage children to drive the family car. But by Virginia statute, that exposes them to personal liability for vehicle accidents. Va. Code Ann. §8.01-64 reaches any owner who allows and any other person who furnishes a minor who is under 16 years old...

Under Virginia common law, motor vehicle operators are liable for all wrongful death, personal injury, and property damages caused by their negligence. Under Virginia statute, they also are liable for exemplary (or punitive) damages for malicious or willful or wanton conduct showing a conscious disregard for...

Car accidents occur constantly. But many crash-related wrongful deaths and brain injuries can be avoided by wearing seatbelts. In September, 2008, the National Highway Transportation Safety Administration (“NHTSA”) noted for passenger vehicle accidents: “Research has found that lap/shoulder seat belts, when used reduce the risk of fatal injury...

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 malpracticecases. Mary Immaculate (thrice), Riverside (twice), Sentara (once), and Carilion (once)...

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)...

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....

Another defense tactic in medical malpractice case is attempting to fabricate a distinction between “paper” and “electronic” records. But Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006), the landmark case of Avery T. “Sandy” Waterman, Jr., Esq., also upheld the admissibility of such electronic database materials, extensive...

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 ofRiverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006),...

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...

“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...

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...

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...

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....

In a §1983 civil rights wrongful death suit, Avery T. “Sandy” Waterman, Jr., Esq. recently survived a federal court challenge to 755 days elapsing from filing to service of the pro se complaint. One unsuccessful defense line of attack was that the clerk’s multiple extensions were not granted within the original...

In a §1983 civil rights suit for wrongful death, Avery T. “Sandy” Waterman, Jr., Esq. recently withstood challenge in federal court to the pro se complaint not having been served for 755 days after filing. In Webb v. Stevens, 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008), the clerk had...

Recently, wrongful deaths were reduced by almost 50% and untoward personal injuries were reduced by over 35% by a 19-item non-cardiac surgical safety checklist. The New England Journal of Medicine reported this on January 29, 2009, by article, “A Surgical Safety Checklist to Reduce Morbility and Mortality in a...

The standard of review by a District Judge for a nondispositive motion decided by a Magistrate is whether the decision is “clearly erroneous or is contrary to law”. See, Fed. R. Civ. P. 72(a); and 28 U.S.C. §636(b)(1)(A). In Webb v. Stevens, No. 5:05-CV-33-BO(1) Order (E.D.N.C. May 22,...