Virginia Injury Lawyers Blog

October 12, 2017

Plaintiff’s Case Against Insurance Company Survives At-Fault Driver’s Bankruptcy Filing

Insurance companies are supposed to make life after a Virginia car accident easier, although in reality, that is not always the case. In too many cases, insurance companies look for ways to avoid paying out on an accident victim’s claim, leaving the accident victim without any real means of recovery.

Earlier this month, an appellate court in Alabama issued a written opinion in a car accident case that provides valuable insight to Virginia car accident victims. The case illustrates how difficult it can be to deal with an insurance company following a car accident – even a driver’s own insurance company.

The Facts of the Case

The plaintiff was involved in a car accident with another driver and sustained serious injuries as a result of the accident. Believing that the other driver was at fault for the accident, the plaintiff filed a personal injury lawsuit against the other driver as well as that driver’s insurance company. Since the plaintiff was unsure whether the other driver’s insurance limits would cover all of his expenses, the plaintiff also named his own insurance company in the lawsuit, citing his policy’s underinsured motorist provision.

October 5, 2017

Statutes of Limitations in Virginia Personal Injury Cases

by Sidney Schupak, Esq.

When someone is injured due to the alleged negligence of another party, the injured party may be entitled to compensation for their injuries from the at-fault party through a Virginia personal injury case. All personal injury cases, however, must be filed within a certain amount of time. If a plaintiff files their case after the applicable statute of limitations has expired, the court will have no choice but to dismiss the case.

Often, when a Virginia personal injury case is filed more than two years after the date of the injury, there is significant litigation over statutes of limitations. This is because the general statute of limitations for all Virginia personal injury cases is two years. Of course, in some cases, there are exceptions to the two-year rule, but these exceptions are rarely obvious and often must be determined by the courts.

A recent appellate court opinion illustrates the difficulties two plaintiffs encountered when they filed a personal injury lawsuit after the two-year statute of limitations.

September 26, 2017

Plaintiff’s Lack of Diligence in Pursuing Claim Results in Dismissal with Prejudice

by Sidney Schupak, Esq.

When hearing Virginia medical malpractice cases, courts enforce a strict set of procedural rules to ensure that cases proceed through the system in an orderly and efficient manner. While perhaps most cases are resolved without significant litigation over one party’s compliance with a procedural rule, occasionally the question of whether a party complied with a rule is the focus of significant litigation.

Virginia procedural rules are very important because a party’s failure to follow the rules may result in serious sanctions, including the dismissal of a case or a judgment entered in favor of the opposing party. A recent appellate decision in a medical malpractice case illustrates how one plaintiff’s failure to diligently pursue her case resulted in her case’s dismissal.

The Facts of the Case

The plaintiff claimed that the defendant hospital was responsible for an injury she received while being treated at the hospital in 2003. In 2005, the plaintiff filed her first medical malpractice case against the hospital, but, since she failed to attached a required expert affidavit, the plaintiff voluntarily withdrew her case in 2007 with the intention of obtaining the affidavit and refiling the case.

September 18, 2017

Court Affirms Product Liability Case in Favor of Plaintiff, Despite Potentially Conflicting Jury Verdict

by Sidney Schupak, Esq.

When a Virginia personal injury trial has concluded, and after the jury’s verdict has been rendered, the parties have an opportunity to file post-trial motions seeking relief for perceived errors that occurred during the trial. Most often, these post-trial motions seek to preserve certain rights for appeal or seek judgment as a matter of law on claims that were not established by the evidence. A recent product liability case illustrates the complex issues that may arise when arguing post-trial motions.

The Facts of the Case

The plaintiff owned a van manufactured by the defendant. One day, as the plaintiff was driving his sons and their fellow Boy Scouts home from a camping trip, the van rolled, and the plaintiff was paralyzed as a result. The plaintiff filed a product liability lawsuit against the van’s manufacturer, claiming that the van’s seatbelt mechanism was defective and that the manufacturer was negligent for failing to conduct safety testing on the mechanism.

The case proceeded to trial, where the jury rendered a verdict in favor of the plaintiff on only the claim regarding the manufacturer’s failure to conduct safety testing. However, despite the very serious nature of the plaintiff’s injuries, the jury awarded him only $1 million for past damages. No award was provided for future damages, despite evidence that the plaintiff will suffer from permanent paralysis for the rest of his life.

September 12, 2017

Statutes of Limitations in Virginia Medical Malpractice Cases

by Sidney Schupak, Esq.

When a patient suffers an injury due to the negligence of a medical professional, the patient may be entitled to compensation for their injuries through a Virginia medical malpractice lawsuit. However, as with other personal injury cases, medical malpractice cases must be filed within a certain amount of time.

The time limits for medical malpractice cases in Virginia are outlined in Code of Virginia section 8.01-243. Under section 8.01-243, a plaintiff generally has two years from the date of the alleged negligent act to file a claim of medical malpractice. However, in some cases, that time frame can be extended. For example, in cases in which a foreign object is left in a patient’s body or the defendant is alleged to have engaged in any activity to prevent the plaintiff from discovering the alleged negligence of the defendant, the statute of limitations is extended until one year after the alleged act of negligence was discovered.

In certain cases in which the alleged act of negligence involved a “negligent failure to diagnose a malignant tumor,” the filing deadline is extended to one year after a medical professional properly diagnoses the tumor or cancer. A recent case out of Florida illustrates this principle.

September 6, 2017

Court Upholds Slip-and-Fall Plaintiff’s Verdict over Defendant’s Sufficiency Challenge

by Sidney Schupak, Esq.

When someone is injured in a Virginia slip-and-fall accident and files a personal injury case seeking compensation for their injuries, the case will be heard by either a judge or a jury. Even if the case is heard by a jury, the judge will have an important role throughout the process by making determinations of which evidence will be presented to the jury, which substantive rules apply, and how the jury is instructed upon deliberation.

In Virginia personal injury cases that are heard by a judge, the judge will have the final say in the ultimate determination of liability. In some cases, a different judge may make certain pre-trial evidentiary rulings in order to not unduly sway the mind of the judge hearing the case. Once a judge makes a determination as to liability, that decision will be final; however, the losing party may have several appealable issues that can be brought to the attention of a higher court. A recent slip-and-fall case illustrates a defendant’s unsuccessful attempt at reversing a judge-issued verdict.

The Facts of the Case

The plaintiff tripped on a defect in the sidewalk when exiting the defendant hospital. As a result of her fall, she broke her toe and sustained a serious back injury. She filed a premises liability lawsuit against the hospital, arguing that the hospital was negligent in failing to properly maintain the sidewalk. As a part of her claim, the plaintiff had to establish that her injury was a reasonably foreseeable consequence of allowing the defect in the sidewalk to remain. Additionally, she had to establish that the defect in the sidewalk was the actual cause of her injuries.

August 29, 2017

Medical Malpractice Case Dismissed Due to Plaintiff’s Failure to Prove the Defendant’s Negligence was the Cause of Death

by Sidney Schupak, Esq.

Virginia medical malpractice cases are often won or lost on the issue of causation. While legal causation is an extremely complex concept, the basic idea behind it is simple: did the defendant’s actions cause the plaintiff’s injuries? Earlier this month, the U.S. Court of Appeals for the Eighth Circuit issued a written opinion in a medical malpractice case requiring the court to determine if the lower court was correct to dismiss the plaintiff’s case for a failure to establish causation. Ultimately, the court concluded that the plaintiff’s causation witnesses failed to meet the threshold requirement necessary to give their testimony weight. As a result, the lower court’s decision to dismiss the plaintiff’s case was affirmed.

The Facts of the Case

The plaintiff was the surviving spouse of a man who died as a result of liver cancer. The plaintiff’s husband was initially seen by the Veteran’s Administration (VA) hospital in 2011 for elevated liver function. A CT scan was conducted, and the results were interpreted by a VA doctor. The doctor noted that the patient had cirrhosis of the liver, but no additional findings were noted.

Two years later, the patient was hospitalized, complaining of painful urination, incontinence, slurred speech, and confusion. A second CT scan was ordered, and this time the results showed a suspicious mass that turned out to be cancerous. Since the patient was too weak, he could not receive medical treatment and was placed on palliative care until he passed away a short time later.

August 22, 2017

Medical Malpractice Plaintiff’s Award Reversed Based on Failure to Include Medical Battery Language in Complaint

by Sidney Schupak, Esq.

Last month, a Virginia appellate court issued a written opinion in a personal injury case illustrating how diligent and precise Virginia medical malpractice plaintiffs must be when filing their complaint. The case required the court to determine if the jury’s verdict in favor of the plaintiff should be upheld when the trial judge instructed the jury on medical battery despite the fact that the plaintiff’s complaint did not mention medical battery. Ultimately, the court concluded that the plaintiff should have added language to include a medical battery claim, and her failure to do so prevented the trial judge from instructing the jury on the issue.

The Facts of the Case

The plaintiff was a breast cancer survivor who required follow-up surgery. The plaintiff claimed that she had originally discussed having surgery on both breasts but ultimately decided to only proceed with surgery on her right breast.

The defendant’s version of the events leading up to the surgery were different from the plaintiff’s version. The defendant claimed that the plaintiff never indicated to him that she wished to have him operate on only her right breast. Needless to say, the defendant performed surgery on both breasts, and the plaintiff suffered serious complications related to her left breast.

August 14, 2017

“Assumption of the Risk” in Virginia Personal Injury Cases

by Sidney Schupak, Esq.

In most cases in which a party is injured due to the negligence of someone else, the injured party can hold the person or entity responsible for their injuries accountable through a Virginia personal injury lawsuit. However, in some cases, a plaintiff may be prevented from recovering for their injuries even if the defendant was negligent. The doctrine of assumption of the risk is just one example.

Assumption of the Risk

The doctrine of assumption of the risk can be used by the defendant as an affirmative defense in some personal injury cases. Essentially, the doctrine prevents a plaintiff from recovering compensation for his injuries when the defendant can prove that the plaintiff was aware of the risks involved in participating in the activity and took on those risks voluntarily. A recent case illustrates how courts apply the assumption of the risk doctrine.

The Facts of the Case

The plaintiff was participating in a horse racing event with approximately 50 other riders when she was injured by the defendant’s horse. Specifically, the plaintiff had dismounted from her horse and was in the process of picking up relay cards related to the day’s race when the defendant’s horse bumped into the rear of another horse, who then kicked another horse, resulting in several horses running out of control. The plaintiff was struck by one of these horses while she was on foot.

August 8, 2017

NFL Brain Injury Update: CTE More Common than Originally Thought

by Sidney Schupak, Esq.

Virginia personal injury cases can be brought any time one party violates a duty of care owed to another party. In sports injury cases, injured players may be able to hold a league or school responsible if the risks of participation in the sport were not adequately disclosed. This is because professional sports leagues as well as schools have a duty to disclose the risks of participation in sports or activities.

Over the past several years, football players have been diagnosed with the brain disease chronic traumatic encephalopathy (CTE) in startling numbers. While the National Football League (NFL) has long battled current and former players’ claims that participation in the league too often results in serious and irreversible consequences, the discovery and diagnosis of CTE provides a scientific basis for the players’ claims.

What Is CTE?

Chronic traumatic encephalopathy is a brain disease that can be caused by repeated blows to the head, often like those experienced in high-contact sports like football, rugby, hockey, and soccer. Symptoms of CTE include cognitive impairment, depression, impulsive behavior, memory loss, emotional instability, substance abuse, and suicidal thoughts or actions. Currently, CTE can only be diagnosed after death.