An issue that often comes up in Virginia medical malpractice cases is whether the treating doctor adequately warned the patient of the risks associated with a given course of treatment. Earlier this month, an Oklahoma appellate court issued an interesting opinion in a medical malpractice case involving the information that a physician is required to provide to a patient in order to obtain informed consent prior to a medical procedure. Ultimately, the court concluded that a physician must inform a patient of all non-doctor assistants who will be performing significant portions of the procedure in order to obtain the patient’s informed consent.

Operating RoomInformed Consent

Before a patient undergoes any non-emergency medical treatment, the treating physician must obtain that patient’s consent. Over the years, courts have consistently held that a patient must have a certain level of knowledge as to what they are consenting to undergo in order for a patient’s consent to be valid. This is called informed consent. When a physician fails to obtain a patient’s informed consent to perform a medical procedure, and something goes wrong during the procedure, resulting in an injury to the patient, the doctor may be liable under a medical battery theory of liability.

The Facts of the Case

The plaintiff was a patient of the defendant gynecologist. In 2010, the defendant recommended that the plaintiff undergo a total laparoscopic hysterectomy, and the plaintiff agreed. Prior to the surgery, the plaintiff was presented with a consent form that stated that the plaintiff authorizes the defendant and “whomever he/she (they) may designate as his/her assistants, to perform the following operative or diagnostic procedure(s): total laparoscopic hysterectomy.” The informed consent form contained an area designated to list the names of any assistants who would be participating in the procedure; however, that area was left blank.

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When someone is injured while using any kind of product, they may be able to seek compensation for their injuries through a product liability lawsuit filed against the manufacturer, distributor, or retailer of the product. In many cases, these lawsuits do not require that a plaintiff establish that the named defendants knew about the alleged defect; however, additional damages may be available if a plaintiff is able to prove that the defendant knew about the defect and failed to correct it.

Disc BrakesOne key issue in many product liability cases is the availability and admissibility of “other similar incident” evidence, or OSI evidence. OSI evidence is important for product liability plaintiffs to understand, and it can be very persuasive because it may show that a defendant manufacturer should have known about the alleged defect, based on the other reported incidents. However, courts are careful about admitting OSI evidence because it may complicate matters for the jury and can result in undue prejudice. A recent case illustrates how plaintiffs in a recent car accident case were able to admit OSI evidence.

The Facts of the Case

The plaintiffs were stopped at a red light on a highway off-ramp when they were rear-ended by another motorist who was driving a 1996 Toyota Camry. The Camry was traveling at approximately 75 miles per hour when it rear-ended the plaintiffs. Two of the five plaintiffs in the vehicle were killed as a result of the accident, one sustained a traumatic brain injury, one was left a paraplegic, and the final plaintiff suffered a broken leg.

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Virginia courts see tens of thousands of cases each year. If each of these cases was presented to a jury, the court system would get bogged down, resulting in cases taking several years to be heard. Thus, Virginia courts only allow cases to be presented to a jury when there is an important and disputed fact that the jury must resolve. However, if the issues presented in a case are legal in nature, a judge can make the decision through a process called summary judgment.

MotorcycleVirginia’s Summary Judgment Standard

In Virginia, either party can move for summary judgment, asking the court to find in their favor without the necessity of going to trial. This can save considerable time and expense; however, summary judgment is only appropriate when there “is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In determining whether summary judgment is appropriate, a court will look at the parties’ pleadings and proffered evidence. A recent motorcycle accident case illustrates a situation in which an appellate court agreed with the lower court that summary judgment was appropriate.

The Facts of the Case

The plaintiff was the surviving wife of a man who was killed in a motorcycle accident. On the day of the accident, the motorcyclist was driving eastbound on the highway in the far-right lane of travel. The defendant pulled up to the intersection, heading northbound on a perpendicular street, and was waiting to make a left turn across the highway to head westbound.

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While all landowners and business owners have a duty to ensure that their property is safe for those whom they invite onto their land, there are limitations to this duty. One of the most common limitations that courts impose on a landowner’s duty to keep his premises safe involves dangerous conditions that are readily apparent to guests.

Wet FloorThe rationale behind this limitation is that an injured party should not be permitted to seek compensation for their injuries if they were aware of the dangerous condition that ultimately caused their injuries. A recent case illustrates how a state appellate court was asked to apply this limitation on a landlord’s duty, but it declined to do so.

The Facts of the Case

The plaintiff was a college student. On a clear and sunny day, she was dropped off at school by her father. She entered the building where her first class was and attended class. During her first class, the weather outside changed, and it began to rain. However, the plaintiff was not aware of the change in the weather because the classroom where she was did not have any windows.

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Earlier this month, a state supreme court issued an interesting opinion in a medical malpractice case highlighting the importance of complying with the rules of pre-trial discovery. The case presented the court with the opportunity to determine whether the testimony of a witness should be allowed when the plaintiff plans on calling the witness but fails to identify the witness during pre-trial discovery. Ultimately, the court concluded that the trial court was proper in excluding the testimony and affirmed the defense verdict that was delivered by the jury.

CourtroomThe Facts of the Case

The plaintiff was suffering from neck and back pain and began seeking treatment from the defendant doctor in 2004. In 2009, the doctor diagnosed the plaintiff with degenerative disc disease and recommended that the plaintiff undergo surgery.

The surgery was performed by the defendant, and afterwards the plaintiff suffered from several complications, requiring a subsequent surgery. After the subsequent surgery, the plaintiff was paralyzed from the waist down. He then filed a medical malpractice lawsuit against the defendant doctor for the doctor’s failure to properly treat him during the second surgery.

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Last month, an appellate court in West Virginia issued a written opinion in a case brought by the surviving spouse of a man who was killed in a vicious dog attack. The case was filed against the local county where the couple lived and required the court to determine if the county could be held liable, even though the dogs were privately owned by another citizen of the county. Ultimately, the court concluded that the city may be held liable because a special relationship existed between the county and the plaintiff.

Dogs at SunsetThe Facts of the Case

The plaintiff and her husband lived in Monroe County. On several occasions, the plaintiff had expressed concern to the county’s dog warden that several neighboring dogs presented a danger to the community. The dog warden told the plaintiff that the “county would take care of it.”

On a separate occasion, the dog warden visited the home of the dogs’ owner. However, when she pulled up, at least one of the dogs approached the car, jumped on the hood, and acted in an aggressive manner, preventing the dog warden from getting out of the car. She later returned to the home and issued a citation to the dogs’ owner for failing to keep the dog properly restrained.

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Virginia courts apply the doctrine of contributory negligence when determining which parties will be able to seek damages following an accident. Under the doctrine of contributory negligence, an accident victim’s negligence can completely bar their ability to receive compensation for their injuries. This is even the case if the plaintiff is just 5% responsible for the accident.

Old Pick-UpWhether an accident victim is considered “at fault” is usually a matter for the jury to determine. However, a recent case out of South Carolina held that a plaintiff’s potential negligence is not relevant to cases claiming that a vehicle was not safely designed to withstand the force of an accident.

The Facts of the Case

The plaintiff was a passenger in a Chevy Pick-up truck being driven by a friend. The two had been smoking synthetic marijuana and were driving on the highway when the driver ran a stop sign. As the pick-up truck entered the intersection, it was struck by another vehicle that had the right-of-way.

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In Virginia personal injury trials, the presiding judge has the power to determine which evidence the jury can consider. In doing so, the judge must consult with the rules of evidence, which are passed by the state legislature. As a general rule, only evidence that is relevant to the case may be considered. However, not all relevant information is admissible.

Police CarRelevant evidence may be inadmissible for a number of reasons. For example, hearsay evidence is generally excluded. Similarly, evidence that is very prejudicial to one party may be excluded even if it is technically relevant. In a recent car accident case, the court was tasked with determining whether a defendant’s two prior convictions for driving under the influence were admissible.

The Facts of the Case

The plaintiff was on his way to work when he was involved in a head-on collision with another motorist, who was driving home from a bar. That driver was later determined to have a blood-alcohol content of .18, which is over twice the legal limit.

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Earlier this month, an appellate court affirmed the dismissal of a plaintiff’s personal injury case because the court determined that the plaintiff was injured while she was acting as a firefighter. Applying the “firefighter’s rule,” which was codified in a state statute, the court explained that the defendants were immune from liability because the plaintiff’s injury resulted “from the condition of fire protection or firefighting equipment or facilities.”

FirefighterThe Facts of the Case

The plaintiff was a firefighter who was called out to fight a wildfire that had gotten out of control. Since the wildfire was rapidly spreading, many firefighters were called out to assist. The temporary barracks that were set up for firefighters filled up, and the plaintiff sought approval to set up camp in the infield of a racetrack that was acting as the center of operations. The plaintiff’s supervisor granted her permission to set up camp in the infield.

On the first night, there were no problems. The plaintiff woke up and fought the fire all day before returning. On the second night, however, a truck that was delivering water ran over the plaintiff, resulting in serious injuries. The plaintiff filed a personal injury lawsuit against the driver of the truck and several other defendants.

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Earlier this month, the United States Supreme Court issued a written opinion in a product liability lawsuit brought against tire manufacturing giant Goodyear. While the Supreme Court’s decision reversed a $2.7 million fine assessed by the lower court, the Court ordered the lower court to recalculate the figure.

TireThe Pre-Trial Discovery Process

After a lawsuit is filed, but before the case is heard by a jury, the parties go through the discovery process, in which each side exchanges documents, witness lists, and other potential evidence. As a general rule, a party must disclose all requested relevant evidence to opposing counsel, even if that evidence may be detrimental to the party’s case. A party’s failure to comply with a discovery request may result in sanctions imposed by the court.

The Facts of the Case

The plaintiffs owned a motor home that was equipped with Goodyear tires. While the plaintiffs were driving the motor home on the highway, a tire blew out, sending the motor home off the road. The motor home flipped over, and several plaintiffs on board were injured. The plaintiffs filed a product liability claim against Goodyear, arguing that the tire was defective because it was not designed to operate at highway speeds.

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