Articles Posted in Medical Negligence

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.

Under Virginia law, plaintiffs must comply with the statute of limitations when filing a personal injury lawsuit or starting any civil court procedure. The statute of limitations outlines the amount of time a Virginia plaintiff has to file a lawsuit. In most cases, the statute of limitations typically begins when the incident giving rise to the claim occurred. This is often referred to as “accrual” of the cause of action. However, there are specific exceptions to the Virginia statute of limitations that may extend the time a party has to commence a lawsuit. These exceptions depend on the type of accident, plaintiff, defendant, and relevant extenuating circumstances.

Generally, under Virginia law, plaintiffs must bring personal injury, product liability, and medical malpractice, and wrongful death claims within two years of the incident. Property damage and trespass claims must comply with the five-year statute of limitations. Plaintiffs who fail to file an action within the appropriate time limit may risk case dismissal and forego any recourse for damages they sustained.

There are specific rules regarding the statute of limitations for Virginia medical malpractice actions. Virginia medical malpractice lawsuits that arise from, foreign objects left in a patient’s body, fraud, concealment, or intentional misrepresentation, negligent failure to diagnose cancer or malignant tumor, and cases on behalf of children all have specific statutes of limitations. Further, the statute of limitations may be tolled in cases where the plaintiff has had a disability, is incompetent, or a minor, or if the defendant engaged in fraud. Tolling allows plaintiffs additional time to file their lawsuit against a Virginia defendant.

The Supreme Court of Virginia recently issued an opinion in a medical malpractice case stemming from a negligently performed cosmetic procedure. A woman filed a lawsuit against her doctor after she suffered permanent injuries to her right eye following cosmetic surgery. A jury found that the doctor was negligent and awarded the woman $800,000 in damages. The doctor appealed the verdict arguing, amongst other issues, that the court should not have permitted the woman to cross-examine his medical expert on the expert’s disciplinary record.

Before trial, the doctor asked the court to exclude his expert witness’s disciplinary history, including instances where he violated Virginia laws and regulations during his deployment. However, the court found that the evidence was relevant and denied the doctor’s motion. The court stated that the doctor could rehabilitate the witness on redirect and instructed the plaintiff that they could not mention the disciplinary issue during jury selection or their opening statement. During cross-examination, the plaintiff asked the expert about Virginia’s standard of care related to medical treatment and whether compliance is necessary. The plaintiff then questioned the expert regarding any violations or citations he received from the Board of Medicine.

Virginia law permits parties in a civil lawsuit to provide the jury with relevant evidence to bolster their position. However, the court can exclude evidence after weighing the probative value and prejudicial effect. If the probative value is substantially outweighed by prejudice, confusion, potential to mislead the jury, undue delay, or wasting time, the court may exclude the evidence. Generally, the court retains discretionary power when it comes to determining whether evidence should be excluded. The court will look to whether the evidence is relevant and if it has any tendency to prove a material element in a case.

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