Personal Injury Law

October 25, 2017

“Fireman’s Rule” Prevents Police Officer from Pursuing Personal Injury Case

When someone is injured in a Virginia car accident, they may pursue compensation for the injuries they sustained through a personal injury lawsuit. Depending on the type of accident and the relationship between the parties, there may be one or more defenses that can prevent the defendant from being found liable for the plaintiff’s injuries. One defense, called the “fireman’s rule,” is discussed in a recent appellate opinion involving a police officer who was injured in a car accident while responding to the scene of an accident.

The Facts of the Case

The plaintiff was on duty as a police officer when he received a radio call dispatching him to the scene of an accident where a motorist slid off the roadway, rolled, and ended up in a nearby field. The evidence presented showed that the motorist lost control of his vehicle when it encountered a patch of grass clippings. The clippings had been left behind when an employee of a nearby used car dealership mowed the grass and failed to clean up the clippings. A subsequent rain storm wet the clippings, which made a slick spot on the road.

As the plaintiff was responding to the scene, he encountered the area of the roadway with the wet grass clippings. The plaintiff lost control of his patrol car and ended up veering off the side of the road and into a tree, sustaining serious injuries as a result.

October 12, 2017

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

by Sidney Schupak, Esq.

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 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 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.

July 25, 2017

Appellate Court Finds Good Samaritan Should Have Been Covered Under Insurance Policy When Assisting Motorist in Need

by Sidney Schupak, Esq.

Car insurance is mandatory in Virginia and should help injured accident victims get back on their feet after being involved in a serious Virginia car accident. However, the reality is that insurance companies are for-profit companies that view claims as “expenses” that should be minimized. Thus, in most cases, insurance companies will either deny an accident victim’s claim for compensation or offer a low-ball settlement figure in hopes of quickly resolving the matter in as inexpensive a way as possible.

Earlier this month, a Rhode Island court issued a written opinion in a personal injury case involving a good samaritan who was seriously injured when she exited her car in an attempt to assist another motorist who had just been involved in an accident. The case is a good example of how Virginia car accident victims may encounter difficulties when dealing with insurance companies, and how an attorney’s assistance may make a difference in whether an accident victim receives compensation for their injuries.

The Facts of the Case

The plaintiff was a passenger in a car being driven by a friend. The two were on their way to a grocery store and had pulled into a space in the store’s parking lot. After parking the car, the plaintiff and her friend got involved in a conversation and stayed in the car for a few minutes. During this conversation, the plaintiff heard a loud noise that turned out to be a car accident that had occurred on an adjacent street.

July 19, 2017

Court Determines Physicians Must Inform Patients of all Non-Doctor Assistants During Surgery to Obtain Informed Consent

by Sidney Schupak, Esq.

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.

Informed 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.