Stay Home - Consult With Us From Your Living Room
Justia Lawyer Rating
Martindale-Hubbell - Peer Reviewed badge
Martindale-Hubbell - Client Champion badge
Super Lawyers badge
Super Lawyers Rising Stars badge
Avvo Client's Choice Award 2019 - Andrew Sheridan Criado
Avvo Client's Choice Award 2019 - Bret Danwill Offan Lee
Avvo Client's Choice Award 2019 - Benjamin N. Griffitts
Avvo Client's Choice Award 2017 - Michael Andrew Robinson
Avvo Client's Choice Award 2019 - Matthew Richard Crowley
Avvo Client's Choice Award 2019 - Seth Quint Peritz

Recently, the Virginia Supreme Court issued an opinion stemming from injuries a student suffered while riding a school bus. The plaintiff was a passenger on a school bus when a car slammed into the bus. The student’s family filed a lawsuit against the car’s driver, the bus driver, and the City of Richmond School Board (the City), seeking damages of $1.2 million for her injuries. The car driver had insurance coverage totaling $125,000. The City was self-insured through a risk pool managed by a third-party, VACORP. This third-party provides uninsured/underinsured motorist (UIM) coverage to anyone who suffers injuries while occupying a qualifying auto. The school bus, in this case, qualified under the contract.

The contract provided a $1 million limit for coverage relating to UIM claims. The agreement states that VACORP agrees to pay all sums the “covered person is legally entitled to recover”, from the owner or driver of the uninsured or underinsured vehicle. The plaintiff and VACORP disputed the available coverage to the City under the UIM provisions. As a result, the plaintiff filed a declaratory judgment, and the parties filed cross-motions for summary judgment. The defendant argued that Code § 22.1-190 and Code § 22.1-194 provides a cap of $50,000 on UIM coverage, negating any contractual agreements between the parties. The plaintiff contended that the statute set a minimum and not a cap. The trial court found in favor of the plaintiff, and the defendant appealed.

Under the relevant portion of § 22.1-190, school boards must certify that every school vehicle obtains a certificate of self-insurance of at least $50,000 for injury to one person. Additionally, the policy must provide coverage for losses caused by an uninsured or underinsured motorist. The statute does not have a provision that forbids a school board for obtaining a contract through a pool for more than $50,000. Therefore, the court concluded that Code § 22.1-190 does not act as a statutory cap.

Respondeat superior, which translates to “let the master answer,” is a legal theory that provides injury victims with a way to hold employers responsible for the negligent actions of its employee. Respondeat superior is a type of vicarious liability, and the theory stems from the idea that, in some instances, employers should bear the responsibility for their employee’s actions, even if the employer did not instruct the employee to act negligently. Employers in these cases do not have to do anything wrong to face liability; rather, liability attaches as a result of the employer/employee relationship. Virginia injury plaintiffs who wish to recover under a theory of respondeat superior or another vicarious liability theory should consult with an attorney to ensure they meet the requirements.

Courts have long reasoned that public policy dictates that employers must be responsible for their employees’ actions, because employees are acting to further an employer’s business interest. If employers can benefit from an employee’s good conduct, they should also assume the cost of the employee’s negligence. Further, employers tend to have more resources, so injury victims have a better chance of fully recovering from employers rather than their agents.

Injury victims can recover from businesses and employers if they meet three main conditions. First, they must prove that an employer/employee relationship exists. To meet this requirement, plaintiffs may be able to point to whether the employee is on regular payroll, what power the employer has over the employee, and the conditions of the employee’s employment. Next, the victim must be able to show that the employee was engaged in furthering the employer’s business at the time of the accident. Finally, plaintiffs must be able to prove that the negligent employee was within the scope of employment when the accident occurred. Courts have generally agreed that anything an employee did that furthered their employer’s interest was within the scope of employment.

Most Virginia residents trust their doctors, and for good reason. Doctors are highly-trained medical professionals and, generally, do a great job taking care of patients. However, doctors are still human and sometimes make mistakes or are careless, which can result in significant harm to patients. When these mistakes do happen, Virginia state law allows those who are injured to file a medical malpractice lawsuit against the responsible doctor. If successful, these suits can result in financial recovery for the victim to cover pain and suffering, lost wages, past and future medical expenses, and other losses they suffered.

The purpose of these lawsuits is generally not to punish the doctor but rather to help the victim recover. Because of this, punitive damages are rarely available. Punitive damages are additional monetary damages that may be awarded to the plaintiff that serve not to make the plaintiff whole and help them recover, but to punish and deter the doctor’s behavior. Because this is not the purpose of medical malpractice lawsuits, these damages are reserved for rare cases when the doctor’s conduct was extremely egregious and in disregard of the patient.

Recently, a Virginia court discussed punitive damages in a medical malpractice case. According to the court’s written opinion, the patient broke her ankle in March of 2011, and was treated by the defendant, a doctor. The patient required surgery, and after the surgery, the doctor prescribed her Percocet, a drug consisting of acetaminophen and oxycodone, a controlled narcotic substance. The patient had a history of bipolar disorder and alcohol use, so she was at an increased risk of developing an addiction to narcotic pain medication, but the doctor continued to prescribe her Percocet. He never attempted to treat her with non-narcotic pain medication.

Under Virginia Code § 46.2-1094, drivers, front-seat passengers, and any passengers under 18 years old, must wear a seat belt. Seat belts are a critical safety mechanism, and individuals who do not wear them properly are at a heightened risk for serious injury or death. According to the National Highway Traffic Safety Administration, most recent statistics suggest that almost 50% of people who die in a motor vehicle crash were not wearing seat belts. Despite these startling statistics, people still choose not to wear seat belts, and increase their risk of severe injuries in a Virginia car accident.

There are many instances where Virginia car accident victims fear that their failure to use a seat belt will affect their ability to recover financially, even when they are involved in an accident through no fault of their own. For example, insurance companies and their defense teams may try to limit their payouts by claiming that the injury victim was contributorily negligent for failing to wear a seat belt. However, although Virginia requires certain passengers to wear seat belts, the law does not allow evidence of non-use to be considered for evidence of negligence or a means to mitigate damages.

Thus, a defense attorney cannot refer to an injury victim’s seat belt use during a trial. Further, although defendants may introduce evidence that the plaintiff failed to mitigate her damages, they cannot argue that the plaintiff’s injuries would have been less severe if they were wearing a seat belt. The idea behind the statute is that, despite the plaintiff’s seat belt use, the injuries would not have occurred if the defendant was not driving negligently. Further, one of the essential purposes behind tort law is to deter the public from engaging in negligent behavior, and arguing about seat belt use shifts responsibility from the defendant to the plaintiff. Keeping in mind, however, that Virginia law does not allow seat belt use as evidence in a personal injury claim, the consequences of non-use can be disastrous.

The COVID-19 crisis has essentially shut down large portions of society in Virginia and across the United States. To prevent – or at least slow – the spread of the virus, state governors across the country implemented a variety of stay-at-home, or shelter-in-place, orders. In Virginia, Governor Northam’s executive order requires that non-essential businesses close and that residents stay in their homes, with a few limited exceptions:

  • To seek medical attention
  • To work

Over the past month, the novel coronavirus has quickly spread across the United States, infecting hundreds of thousands. The current administration estimates that tens of thousands of people will die as a result of COVID-19. While the virus does not seriously jeopardize the health of everyone infected, older Americans, as well as those with pre-existing health conditions, are among the most at-risk populations of experiencing serious health complications. Not surprisingly, Virginia nursing home residents are especially at risk.

According to a recent news report, a total of 16 residents of a Virginia long-term care facility have now died from the coronavirus. It appears that all those who died caught the virus from the facility, The Canterbury Rehabilitation & Healthcare Center in suburban Richmond. This count includes the deaths of five residents who had been sick with the virus for weeks.

In all, over 90 residents have tested positive since mid-March, when the facility began testing residents and staff. This figure represents two-thirds of the entire resident population. More than half of those who tested positive did not show any symptoms of the virus.

Earlier this year, the coronavirus pandemic took the country by storm, quickly spreading from what was just a few select cities to every state in the nation. One of the first clusters of COVID-19 cases was in a Washington state nursing home, where at least 37 residents died as a result of the virus. Indeed, among those most at risk for developing serious and potentially fatal coronavirus symptoms are those living in Virginia nursing homes. Currently, several states have banned friends and family members from visiting loved ones in nursing homes in an attempt to stop – or at least – slow the spread of COVID-19.

However, at a time when one may think that nursing home regulations would be getting stricter, the opposite seems to be the case. According to a recent news report by the New York Times, the current administration has been working to relax the regulations that control the country’s nursing homes. Shockingly, this even includes measures designed to combat the spread of deadly infections between residents.

Last July, the Centers for Medicare and Medicaid Services (CMS) proposed a plan that would, among other things, relieve nursing homes from complying with an Obama-era rule requiring facilities to employ at least one specialist with knowledge of preventing infections. Under the proposed rule, facilities would no longer need even a part-time infection disease specialist, and instead would require such a specialist to spend “sufficient time at the facility.”

Recently, a Virginia appellate court issued an opinion in a medical malpractice lawsuit after a trial court found that the plaintiff did not present sufficient evidence to survive a motion to strike. The case arose after a doctor placed a cervical cerclage in a woman who was at risk for preterm labor. The cerclage remained in place after the woman delivered her baby by Caesarean section (C-section). About two years later, the woman became pregnant again, and her treating doctor could not find the original cerclage, and he placed a new one in her cervix.

Following the placement, the woman complained of pain and discomfort, and her husband asked the doctor whether the woman might have an infection. The doctor dismissed the husband’s claims and did not investigate the issue. The woman continued to experience severe pain, and she called her practice for advice. Her treating doctor was not on-call, and another doctor directed her to take pain medication, without requesting an examination,

The woman continued to experience pain, and when she called back, the doctor finally advised her to go to the hospital. The emergency doctor treated her for severe infections and performed an emergency C-section. Tragically, the woman hemorrhaged to death following the surgery and died several days later. The woman’s husband filed a lawsuit against the two doctors alleging medical malpractice resulting in wrongful death. At trial, the husband presented evidence from two physicians who specialized in infectious diseases and fetal medicine. The experts testified that the doctor’s failure to investigate and treat the infection was a departure from accepted standards of medicine. The defendants moved to strike the evidence, arguing that it was insufficient to prove causation.

Defective products can cause serious injuries and death to consumers and their loved ones. Virginia’s product liability laws allow injury victims and their families to hold designers, manufacturers, and retailers of defective products liable for their damages. Many product liability lawsuits stem from injuries related to defective automobile parts, medical devices, and food products. However, injuries related to defective childcare products are arguably one of the most traumatizing types of accidents.

According to a recent news report, late last year, the Consumer Product Safety Commission (CPSC), in conjunction with Fisher-Price, issued warnings to consumers regarding a popular infant recliner. The CPSC and Academy of Pediatrics (AAP) have a history of warning consumers of the dangers associated with incline sleepers. Many of these sleepers increase the risk of suffocation and strangulation, especially when babies are unrestrained. To mitigate the risk of infant death, the AAP has published safe sleep guidelines. These guidelines include advising parents that babies should sleep on a firm surface on their backs at all times, their bedding should not have any bumpers, pillows, toys, or blankets, babies who fall asleep in swings or car seats should be transported to a firm surface, and parents should avoid sleeping with a baby.

The popular Rock ‘n Play Infant sleeper had rave reviews, in large part due to the company’s failure to notify consumers of the high rate of injuries and deaths related to the product’s use. The company only issued a warning after receiving numerous reports over several years of babies that died after rolling over from their backs to their stomachs while unrestrained in the sleeper. The company finally voluntarily issued a recall, after CPSC issued warnings regarding the use of the products, and the AAP urged the company to recall the infant sleepers. A more in-depth CPSC investigation revealed that infant fatalities had been reported with other company’s inclined sleep products as well. Similar to the Rock n’ Play, most of these deaths occurred when babies rolled from their back to their stomach or side.

Earlier this month, a Virginia car accident resulted in the death of an 83-year-old man. According to a local news report, the man was driving his pick-up truck on Route 122 when an oncoming minivan crossed over the center line, crashing into the man’s vehicle. The man was wearing a seatbelt at the time of the accident. While emergency responders were on the scene within minutes, the driver of the pick-up truck sustained fatal injuries and was pronounced dead at the scene of the accident.

The driver of the minivan, as well as her two minor passengers, were hospitalized as a result of the accident. They are expected to make a full recovery. Authorities are still looking into the cause of the fatal head-on collision.

Pursuing a Virginia Wrongful Death Claim

When someone is killed in a Virginia motor vehicle collision, the accident victim’s surviving family members may pursue a claim for financial compensation through a Virginia wrongful death case. Wrongful death cases are very similar to other negligence cases in that they require a plaintiff to show that the defendant’s “wrongful act, neglect, or default,” caused the death of their loved one. Simply put, the elements of a wrongful death claim are duty, breach, causation, and damages.

Continue Reading ›

Contact Information