Articles Posted in Virginia

Virginia Lawyers Weekly reports on an insane case in Virginia where an emergency room doctor in Hampton received a defense verdict.

After a night of partying, the decedent and his friend got into a dispute over whether the decedent would drive drunk from Hampton back home to Atlanta with his 4-year-old son. The best friend did what best friends usually do – he stabbed him in the thigh.

The decedent was taken to the emergency room. Plaintiff’s malpractice lawsuit claimed that the emergency room doctor should have sought out detailed information about the length of the knife. The defendant was told only that the decedent was stabbed with a knife and that the length of the blade was unknown. The defendant assumed it was a small blade.

Virginia Lawyers Weekly reports in a $5 million settlement in a motorcycle accident case involving car that crossed the double yellow lines and struck a motorcycle head-on, causing catastrophic injuries, including an above-the-knee amputation. The injured motorcycle victim received $4.5 million; his wife received an additional $500,000.

The motorcycle accident victim required $116,265.14 in medical bills and is expected to incur over $700,000 in future medical bills.

The Baltimore Injury Lawyer Blog has a post on a Maryland Daily Record article looking at how President-Elect Barack Obama might change the 4th Circuit Court of Appeals which includes Maryland, Virginia, West Virginia, North Carolina, and South Carolina.

I’ve spent far more time thinking about how President Obama will change the country than his impact on lawyers or even my own clients. But President Obama will nominate judges that I will stand before and argue. While I think President Bush has nominated a lot of good judges, this fact makes me a little happier to be a lawyer today. I’m not saying every plaintiffs’ lawyer will have a better shot at success in front of judges nominated by Obama. I just think they are likely to be fair and reasonable judges.

There are NuvaRing lawsuits pending in an MDL (cases consolidated around the country in Missouri) and in New Jersey. Even though Organon is a New Jersey defendant, it sought to remove the NuvaRing cases because Organon was not “properly joined and served” under §1441(b) because Organon was not served with a tracking assignment number as required by New Jersey law.

No tracking assignment number? Who thinks of these things? Sure, strictly construed void of any sense of fairness or context, the statute the rule would preclude removal by an in-state defendant who has not been “properly joined and served” at the time of removal. But would a judge be such a foolish hypertechnical slave to the language beyond logic, reason, and the legislative intent of the statute? Thankfully, no. The New Jersey District Court found that strict adherence to the statute’s plain language would defeat the legislative intent and, accordingly, the law should not be interpreted to produce an absurd result.

Get the latest update as of August 2013 in these cases here.

Florida lawyers have filed a lawsuit on behalf of children who are supposed to be compensated pursuant to a well intentioned by awful program Florida has for children with birth injuries. The purpose of Florida Birth-Related Neurological Injury Compensation Association (NICA) is to compensate children with birth injuries. This statutory scheme, which was created 20 years ago in Florida, also insulates doctors from medical malpractice in many of the most significant medical malpractice cases in Florida. This means if you have a cerebral palsy case in Florida, you have little chance of getting compensation for the child. Virginia has a similar scheme that is just as awful.

According to the recently certified class-action lawsuit, parents have been misinformed about their rights, and NICA has refused to make payments. So not only are children who are suffering the most egregious injuries not being fairly compensated, but they are also – at least according to this lawsuit – being victimized by the very law that takes their rights away.

Last month, I wrote about the Virginia Supreme Court’s expected ruling regarding whether tax-exempt physician foundations should have immunity from medical malpractice liability. The TortsProf Blog reports today that the Virginia Supreme Court did the right thing (my words, not theirs) and found that tax-exempt doctor foundations are not immune from medical malpractice liability.

This is an important victory for medical malpractice victims in Virginia who would have been left without a remedy and in most Virginia medical malpractice cases had the Virginia Supreme Court found that these doctor foundations were immune from medical malpractice lawsuits.

In Smigelski v. Potomac Insurance Co., the Maryland Court of Appeals affirmed a Montgomery County trial court’s judgment in favor of an insurer, finding that under the terms of a workers’ compensation policy that excluded coverage outside of Virginia a Virginia resident is not entitled to workers’ compensation for injuries sustained while performing work in Maryland.

Claimant, a Virginia resident, was injured installing a roof in Maryland. The Maryland Court of Appeals held that the workers’ compensation insurance policy, by its own terms, excluded coverage in states other than Virginia for activities requiring the employer to procure workers’ compensation insurance for work outside of Virginia. The Maryland high court also found that because Claimant was an illegal alien, who cannot bring claims under Virginia workers compensation law, there was no basis to extend coverage. In other words, because Claimant could not bring a claim in Virginia, he cannot bring a workers compensation claim in Maryland.

The Virginia Supreme Court is expected to rule soon on whether tax-exempt physician foundations should have immunity from malpractice liability.

The arguments on both sides are easy to predict. The hospitals’ claim that the purpose of their work- helping people who are hurt and sick – is being compromised by medical malpractice liability. Virginia is already one of just a few states that have a hard cap on economic damages in medical malpractice cases. Regardless of the economic damages or future medical care cost, the cap on malpractice awards now stands at $2 million. (In other words, Virginia limits damages only in catastrophic cases. This makes absolutely no sense.)

Obviously, medical malpractice lawyers (both plaintiffs’ lawyers and defendants’ lawyers, who fear the loss of business, too) take a very different view, contending that charitable is an end-run around what is a very profitable business. What is to stop a doctors’ group from forming a non-profit and then having the “charitable foundation” pay the doctors the same handsome wage they had in private practice while becoming immune from medical malpractice lawsuits? So, if the Virginia Supreme Court decides that tax-exempt physician foundations should be exempt from medical malpractice liability, the 1200 physicians and 3 Virginia medical schools might be just the tip of the iceberg.

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