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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.

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Anyone who has ever been involved in a Virginia car accident knows the damage that these accidents can cause. What is less known, however, is that women may be more likely to suffer a serious injury after a Virginia car accident than men.

According to a recent study conducted by the University of Virginia, the odds of serious injury or death for a female car accident victim is 73 percent higher than for males. This phenomenon was first noted in a 2011 University of Virginia study, which found that women were at approximately a 50 percent greater risk than men. However, the new data makes the case that women are at an even greater risk.

The most recent study looked at over 31,000 accident victims between the years of 1998 and 2015. And while the total number of people who were killed or suffered serious injuries has gone down, researchers noted that the gender disparity between injury victims has only widened. Researchers attempted to control for external factors, such as make and model of the vehicle, as well as the height and weight of the driver. After doing so, the conclusion was that women were at a much greater risk of death or injury when involved in a frontal impact accident.

After an individual suffers an injury in a Virginia accident, they may hold the at-fault party responsible for the damages and losses they sustained. Typically, establishing the cause of an injury is the first and arguably most critical part of a Virginia plaintiff’s injury claim. In some cases, evidence may prove that the defendant engaged in apparent negligent conduct that resulted in the victim’s injuries. However, more often than not, the plaintiff bears the burden of establishing the other party’s negligent behavior. In instances where a jury or fact finder determines that a substantial factor in the conduct that led to the plaintiff’s damages was a natural event, the defendant may not be liable.

These “force of nature” defenses are typically known as “Act of God” defenses. Legally, an “act of God” suggests that the event had two defining characteristics. These two qualities are that the substantial factor was a natural, but unavoidable occurrence that caused damage, and the event was utterly unforeseeable. Defendants generally need to establish that this force of nature was the complete cause of the accident.

For example, recently, a state appellate court addressed the “Act of God” defense in a personal injury case stemming from a car accident. In that case, a 16-year-old driver hit a pedestrian and his dog when the pedestrian was in a cross-walk. Amongst other issues, the girl argued that the sun temporarily blinded her from seeing the man and his dog in the cross-walk. During a deposition, she conceded that she visited the same store over a dozen times on sunny days; she had sunglasses that she did not wear, and that she did not use her vehicle’s sun visor. The court, in this case, affirmed the trial court’s ruling that the “Act of God” defense did not apply. The court reasoned that the driver did not present any evidence that the bright sunlight was so extraordinary and unexpected to render it unavoidable.

Recently, a state court issued an opinion in a Virginia insurance dispute stemming from a plaintiff’s request for damages through his uninsured motorist coverage. According to the court’s opinion, a special needs child was transported on the school bus while strapped and secured in his seat with a harness. The harness was designed to aid in the supervision of children with disabilities. While he was restrained in his seat, he witnessed two classmates kick, slap, choke, and spray chemicals onto another student. Further, the classmates struck the plaintiff numerous times while he was restrained. Following this event, the plaintiff’s family filed a claim with their automobile insurance policy, under the underinsured/uninsured motorist provision.

The Virginia insurance company argued that its coverage did not apply to the plaintiff’s situation because it did not arise from the common use of the school bus. It further contended that the injuries resulted from specific “implements,” such as the chemical spray, a flyswatter, and the hands and feet of the assailants. The plaintiff asserted that the assault took place when the vehicle was being used for its typical purpose of transporting children with disabilities. Additionally, the plaintiff argued that the harness made it easier for the assault to occur.

Virginia uninsured motorist clauses are standard provisions found in automobile insurance policies. These clauses provide drivers, passengers, and family members with a means to recover damages if they are involved in an accident with an at-fault uninsured or uninsured driver. Virginia insurance companies will often deny coverage by claiming that the injuries did not result from the “ownership, maintenance, or use,” of the vehicle. Courts have held that the vehicle’s use does not need to be “the direct, proximate cause of the injury,” however, there must be a causal connection between the injuries and the use of the vehicle as a vehicle.

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.

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