Virginia Injury Lawyers Blog

March 11, 2018

Virginia Appellate Court Reverses Plaintiff’s Jury Verdict Based on a Lack of Causation Testimony

Earlier this year, an appellate court issued a written opinion in a Virginia medical malpractice case requiring the court to determine if the plaintiff presented sufficient evidence that the defendant’s alleged negligence was the cause of the plaintiff’s injuries. The court considered the evidence presented by the plaintiff, and it ultimately determined that there was a gap in testimony. As a result, the jury verdict rendered in the plaintiff’s favor was reversed.

The Facts of the Case

The plaintiff was a patient of the defendant doctor and arranged to have a laparoscopic hysterectomy performed. The defendant went over the risks of the procedure, and the plaintiff acknowledged the risks and opted to proceed nonetheless.

As a part of the procedure, the defendant needed to insert a small tube into the plaintiff’s abdomen. The first time the defendant attempted to do this, she realized it was too close to one of the organs in the abdomen, so she removed the tube and tried to insert it in a different location.

March 5, 2018

Obviousness of the Hazard in Virginia Premises Liability Cases

by Sidney Schupak, Esq.

In premises liability claims, the plaintiff must present evidence of each element in order for a judge to submit the case to a jury. If a plaintiff fails to establish each element of his claim, the judge will grant a defense motion for summary judgment, if made.

One element that is frequently contested in premises liability cases is the obviousness of the hazard. Obviousness is less an element of a claim than it is a defense. Essentially, if a defendant in a premises liability case can establish that the hazard that caused the plaintiff’s injuries was open and obvious, the plaintiff’s case will be dismissed.

A recent case illustrates how a plaintiff’s knowledge of the hazard that caused his injuries can defeat the plaintiff’s claim.

February 26, 2018

Bad-Faith Insurance Claims Following Virginia Car Accidents

by Sidney Schupak, Esq.

Every motorist in Virginia is required to obtain a certain amount of car insurance. The idea behind this requirement is to ensure that anyone injured in a Virginia car accident will have a means of recovering compensation to help them cover the costs of the injuries they sustained in the accident.

Car insurance companies, however, operate on a for-profit basis and rely on taking in more money in monthly premiums than they pay out in approved claims. Thus, it is not uncommon for an insurance company to deny borderline cases in hopes that the accident victim will not file a personal injury lawsuit.

Virginia lawmakers have enacted a law to discourage insurance companies from acting in bad faith, contained in the Code of Virginia section 8.01-66.1. Under section 8.01-66.1, an insurance company that is found to have denied “a claim of $3,500 or less in excess of the deductible” in bad faith is liable to the insured for double the amount otherwise due. This law applies both to the insured that is named in the policy as well as to any third parties injured by the insured’s negligence.

February 20, 2018

What Injury Victims Need to Know About Virginia’s Recreational Use Statute

by Sidney Schupak, Esq.

As a general rule, landowners owe a duty of care to those whom they allow onto their property. The extent of any duty owed is dependent on several factors, including the purpose of the visit as well as the relationship between the parties. Perhaps the most common example of a Virginia premises liability lawsuit is when a customer is injured while shopping at a business.

A recent case illustrates a different type of premises liability lawsuit. In this case, a young girl was seriously injured after she fell nearly 30 feet after slipping between the bleachers at a youth football game. The girl’s parents filed a premises liability lawsuit against the city, which operated the stadium, claiming that the city was negligent in the construction of the bleachers and also for failing to warn visitors of the dangers that were present.

The city claimed that it could not be held liable under the state’s recreational use statute. Specifically, the statute prevented anyone from holding a landowner liable if their injury occurred while engaging in recreational activity. In order for the statute to apply, the landowner cannot charge a fee for the use of their land. However, in this case, the city charged the plaintiffs $2 admission into the game, but did not charge their daughter any admission fee because she was under six years old at the time.

February 8, 2018

Court Rejects Medical Malpractice Plaintiff’s Case Based on Lack of Expert Witness Testimony in Support of Her Claim

by Sidney Schupak, Esq.

In Virginia medical malpractice cases, the issues presented to the jury are often of a complex nature that may be beyond the understanding of the average juror. For that reason, Virginia lawmakers passed Virginia Code section 8.02-20.1, which outlines when expert witness testimony is required.

The idea is that in cases in which there are complex issues beyond the understanding of the average juror, an expert in the field can view the facts and present their opinion. Unlike the opinion of lay witnesses, an expert’s opinion can be used by the jury as substantive evidence.

Under section 8.02-20.1, an affidavit of support from a qualifying expert is required in all medical malpractice cases. However, “if the alleged act of negligence clearly lies within the range of the jury’s common knowledge and experience,” an expert is not needed. This leaves two questions for prospective medical malpractice plaintiffs. First, is a claim truly one of medical malpractice? And second, if it is a medical malpractice claim, are the issues presented within the range of a jury’s common knowledge? A recent appellate opinion wrestles with these issues.

February 1, 2018

Court Applies the “Continuing Storm Doctrine,” Dismissing Slip-and-Fall Plaintiff’s Case

by Sidney Schupak, Esq.

Earlier this month, a state appellate court issued a written opinion in a personal injury case, raising an important issue that frequently comes up in Virginia slip-and-fall cases. Specifically, the court was tasked with determining whether a business owner was reasonable in waiting until a storm passed to clear ice deposited by the storm. Applying what has come to be known as the continuing storm doctrine, the court determined that the business owner was entitled to wait a reasonable time until after the storm to clear any snow or ice left behind.

The Facts of the Case

The plaintiff was employed as a driver for a retirement home. Primarily, the plaintiff operated a shuttle van that was used to transport residents. On one particularly rainy and cold day, the plaintiff stopped to get gas at the defendant gas station at around 7:00 a.m. At this point in time, the gas station had been open for about an hour.

As the defendant exited the shuttle to fill up the gas tank, he slipped on a patch of ice that was undisputedly caused by the freezing rain. As it turns out, moments before the plaintiff slipped and fell, a gas station employee had fallen on the ice. The employee notified her supervisor of the ice and arranged for a third-party snow-removal company to clear the ice. Of course, the ice was not cleared by the time the plaintiff fell.

January 23, 2018

Plaintiff’s Bicycle Injury Case Dismissed Due to State’s Recreational Use Immunity Statute

by Sidney Schupak, Esq.

A few weeks ago, a state appellate court issued a written opinion in a bicycle injury case that illustrates an important point for Virginia bicycle accident victims. The case required the court to determine if the state government could be legally liable for the plaintiff’s injuries, or if the state was entitled to immunity from the lawsuit. Ultimately, the court concluded that the accident fell within the state’s recreational use statute and dismissed the case.

The Facts of the Case

The plaintiff was riding his bicycle on a mixed-use trail. The trail was designed for bicyclists as well as pedestrians. As the plaintiff approached a pedestrian, the plaintiff rang the bicycle’s bell and began to move toward the middle of the trail to pass the pedestrian.

While the plaintiff was passing the pedestrian, the bicycle’s tire got caught in a crack in the pavement, and the plaintiff lost control of the bike. The plaintiff then fell off the bike and onto the pavement, injuring his shoulder. The crack was about three inches wide, two inches deep, and three feet long, running parallel to the path itself.

January 17, 2018

Virginia Supreme Court Finds Plaintiffs Were Too Late in Amending Complaint

by Sidney Schupak, Esq.

Virginia personal injury plaintiffs have to be careful in following the procedural rules in any case. In a recent Virginia Supreme Court decision, after a jury found in the plaintiffs’ favor, the Court determined the plaintiffs had amended their pleadings too late and sent their case back for a new trial in their carbon monoxide poisoning case.

The Facts of the Case

The carbon monoxide detector went off in an apartment rented by four tenants, and a maintenance worker came and replaced the batteries. The alarm sounded again, and the tenants called the gas company. An inspector came and measured the carbon monoxide (CO) levels in the apartment. He found the CO levels were hazardous, turned off the gas supply to the furnace, and “red tagged” the furnace as the suspected source of the leak.

The apartment’s property management company then sent a maintenance worker to the apartment, who stated that he had found a loose vent pipe in the attic, reattached it, and rechecked the CO level. He repaired the vent pipe by using zip screws, which was contrary to manufacturer specifications. A city code enforcement officer later came, who found the CO levels were within the acceptable range and removed the red tag, but he did not go into the attic or inspect the furnace or vents.

January 10, 2018

Virginia’s Expert Affidavit Requirement in Medical Malpractice Cases

by Sidney Schupak, Esq.

Medical malpractice cases are often complex, and in most instances, they require the testimony of at least one expert witness to explain certain medical or scientific issues to the jury. In an effort to ensure that only meritorious cases are filed and heard by the court, Virginia law makers passed a rule requiring Virginia medical malpractice plaintiffs to obtain a certification from an expert stating that the plaintiff’s case has merit.

Under section 8.01-20.1 of the Code of Virginia, the expert certification is required in all medical malpractice cases unless “the alleged act of negligence clearly lies within the range of the jury’s common knowledge and experience.” When a certification is required, it must state that the care provided by the named defendant “deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed.”

A plaintiff’s failure to include an expert’s certification can result in the dismissal of an otherwise meritorious case. A recent case served as a major warning to one medical malpractice plaintiff, whose case was nearly dismissed with prejudice for the failure to file the necessary expert affidavit.

January 3, 2018

Virginia Product Liability Claims

by Sidney Schupak, Esq.

When a consumer purchases a product, they expect not only that the product will function as it is supposed to function, but also that it will be safe and free from potentially harmful or dangerous defects. However, history has shown that not all products are safely designed or manufactured, and sometimes a product will be damaged in transit, making it unreasonably dangerous even when used for its intended purpose. In these situations, anyone who is injured as a result of the use of the product may be able to purse a claim for compensation through a Virginia product liability claim.

In Virginia, there are several types of product liability claims that can be brought against a number of parties. For example, a claim may be brought based on the defective design of a product, the negligent manufacturing of a product, or a company’s failure to warn the consumer about a known defect. As a general rule, a Virginia product liability claim can be brought against any person or business in the product’s chain of commerce, from the manufacturer to the retailer.

A recent case illustrates the trend toward holding all actors in the chain of commerce responsible for the safety of a product.