Virginia Injury Lawyers Blog

February 8, 2018

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

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.

December 27, 2017

Court Rejects Argument That Non-Signing Party Was Bound by Arbitration Agreement

by Sidney Schupak, Esq.

Arbitration agreements have become more and more common over the years, especially in certain contexts. For example, many companies are beginning to include arbitration clauses into their contracts that are provided in advance of the service the company provides. For example, it is very common to see issues involving arbitration clauses come up in Virginia nursing home cases as well as Virginia car accident cases.

Arbitration agreements, if valid, are generally enforceable. However, before a court will hold a party to their obligation to arbitrate a claim, the court must determine that the party was bound by the agreement. Obviously, signing an agreement is usually sufficient. However, in some cases, a non-signing party may be bound by an arbitration agreement as well. A recent case discusses a rental truck company’s attempts to compel a non-signing party to arbitrate a claim against the company.

The Facts of the Case

The plaintiff was a warehouse worker. One day, the plaintiff’s employer rented a truck and asked that the plaintiff deliver some merchandise to the state fair. The employee had not performed delivery services for the employer in the past, but he agreed to do so on this occasion.

December 18, 2017

Court Permits Victim of “Horseplay” to Pursue Punitive Damages Against Fellow Student

by Sidney Schupak, Esq.

Earlier this month, a state appellate court issued a written opinion in an interesting personal injury case involving a student who ran over the feet of another student while engaging in what the court characterized as horseplay. The opinion is an interesting one and raises several issues that are relevant to Virginia car accident plaintiffs, including under which circumstances punitive damages may be available.

The Facts of the Case

The plaintiff was a teenage girl who was the manager of the school’s baseball team. The defendant, a senior at the school, was a player on the team. One day, before the team boarded a bus to go to an away game, the defendant went to move his car so that he would be closer to the bus stop once the team returned.

Once the defendant reached his car and was on his way to re-park it, he saw the plaintiff walking in the parking lot. He approached the plaintiff from behind, and the plaintiff stepped aside to avoid being hit. However, the defendant’s 1.5-ton truck ran over both of the plaintiff’s feet. Another student lifted the plaintiff into the defendant’s truck to get medical attention. The plaintiff claimed that the defendant told her he was “sorry” and that he “only intended to bump her.” The defendant denied making this statement.

December 11, 2017

Court Rejects City’s Assertion of Government Immunity in Recent Premises Liability Case

by Sidney Schupak, Esq.

Earlier this month, an appellate court in Illinois issued an opinion in an interesting case that presents relevant issues to victims who are considering filing a Virginia premises liability case against a government entity. Specifically, the case deals with the state’s recreational use statute and whether the trail where the plaintiff was injured was covered under the statute. Ultimately, the court concluded that the “mixed-use” trail at issue was not covered under the statute, and thus immunity did not apply.

The Facts of the Case

The plaintiff was injured while biking on a mixed-use trail. Evidently, an area of the pavement became cracked after weeds and other vegetation grew up through smaller cracks. The result was a bumpy patch of pavement.

As the plaintiff was riding in a group with her friends, one of the bicyclists ahead of her fell off her bike after running over the bumpy pavement. The plaintiff was unable to avoid a collision with her friend and ended up falling off her bike as well. She sustained serious injuries in the fall and filed a premises liability lawsuit against the city responsible for the maintenance of the trail.

December 5, 2017

Court Discusses Landowner Liability Relating to Injuries Occurring Off Premises

by Sidney Schupak, Esq.

Earlier this month, an appellate court in California issued a written opinion in a personal injury case that required the court to discuss an issue that often arises in Virginia premises liability cases. The case involved a plaintiff who was injured while crossing the street from an off-site parking lot to the church that owned the lot. The court had to determine if the church could be held liable for the plaintiff’s injuries despite the fact that the accident occurred on a public street that was not controlled by the church.

The Facts of the Case

The plaintiff was a member of the defendant church. One evening, the plaintiff planned on attending an evening service at the church. He drove to the church and upon his arrival found that the church’s regular parking lot was full. A volunteer parking attendant directed the plaintiff to the church’s off-site parking lot across a five-lane road.

The plaintiff entered the off-site lot and parked his car. The parking lot was located mid-block, about 100 feet away from either intersection. The plaintiff exited the parking lot and, rather than walk over to the intersection to cross the street, crossed the street mid-block. As the plaintiff was crossing, he was struck by a passing motorist and seriously injured.