Virginia Injury Lawyers Blog

September 6, 2016

Battery Claims Based on Lack of Informed Consent May Be Subject to Procedural Requirements of Medical Malpractice Claims

After undergoing a procedure to have an intrauterine device (IUD) implanted, a woman filed a lawsuit against her doctor for battery. The woman argued that her doctor failed to obtain her informed consent prior to the procedure, since she later discovered that the IUD she had received was not approved by the Federal Drug Administration (FDA). The IUD actually was on the approved FDA list for IUDs, but it did not meet the FDA’s requirements because it had been shipped to Canada rather than to the United States.

However, when the woman filed the complaint, she did not file a medical expert affidavit along with it, stating that the expert supported the allegations made in the lawsuit. In that state, plaintiffs who filed medical malpractice claims had to file a supporting medical expert affidavit with the complaint. The woman claimed that she did not need the medical expert affidavit because she was filing a claim for battery rather than for medical malpractice.

Yet, in a recent decision, the supreme court of that state found that she did need a medical expert affidavit even though she filed a “battery” claim. The court explained that battery claims against a medical provider based on a lack of informed consent should be subject to the same requirements as medical malpractice claims. Just as general medical malpractice claims do, the lawsuit required considering what the professional standard was in obtaining informed consent. For that reason, a medical expert affidavit was required.

August 25, 2016

Recent Case Illustrates the Importance of Naming All Potentially Liable Parties from the Outset of a Medical Malpractice Case

by Sidney Schupak, Esq.

Earlier this month, the Supreme Court of Idaho issued a written opinion in a medical malpractice case, affirming the dismissal of the case because the plaintiff failed to name the proper parties within the relevant statute of limitations. In the case, English v. Taylor, the court decided that the filing date of the amended complaint, rather than the date on which the plaintiffs sought leave to amend, was the date that triggered the lawsuit.

The Facts of the Case

Mrs. English underwent surgery at the defendant’s facility in 2011. As a result of a complication with the surgery, English suffered a stroke and sustained related injuries. After her recovery, English and her husband filed a lawsuit against the manufacturer of one of the medical devices that was used in the surgery. At that time, neither the doctor who performed the surgery nor the medical facility where the surgery was performed were named as defendants.

One day before the two-year statute of limitations was over, the Englishes filed a request for a medical provider to review the surgery to determine if there may have been any medical malpractice involved. This “tolled” or paused the statute of limitations and provided the Englishes with an additional 30 days. During that 30-day period, the Englishes filed a motion with the court, asking for permission to amend their complaint to add the doctor as well as the medical facility as defendants, and to amend the cause of action to include a medical malpractice theory. The court granted permission.

August 18, 2016

Manufacturer Escapes Liability in Product Liability Lawsuit Based on “Optional Equipment Doctrine”

by Sidney Schupak, Esq.

Manufacturers, distributors, and retailers of merchandise all have a duty to ensure the goods in which they are dealing meet certain safety standards. If a dangerously made product, or a malfunctioning product, causes an injury to a buyer, that person may be able to seek compensation for their injuries through a product liability lawsuit.

Product liability lawsuits vary in terms of what must be proven. However, the essence of all product liability claims is the same; a dangerous product caused an injury to someone. As is the case with most other theories of liability, there are some defenses to a product liability lawsuit of which plaintiffs should be aware. In a recent case in front of a federal appeals court, the “optional equipment doctrine” was discussed, adopted, and applied.

The Optional Equipment Doctrine

In the case, Parks v. Ariens, the court determined that a lawnmower manufacturer was not liable under a product liability theory when it sold a ride-on lawnmower without a roll-cage or seatbelt. The plaintiff in the case was the surviving spouse of a man who had died when the lawnmower he purchased rolled and trapped him underneath. The man’s widow filed a product liability lawsuit against the lawnmower manufacturer, arguing that it should be responsible for her husband’s death because it was negligent to sell the lawnmower without the roll-cage or seatbelt.

August 11, 2016

Premises Liability Case against Government Entities May Require Additional Proof

by Sidney Schupak, Esq.

The United States was founded on certain principles that have remained with the country through the state and federal constitutions, common law decisions, and legislatively enacted statutes. One of these principles is the idea that a government entity should not be held liable for any injuries caused as a function of the government carrying out its governmental business. This is called government immunity.

However, to say that a government is immune from all lawsuits that may arise while carrying out government business would grossly overstate the principle. In fact, governments can – and often are – held liable for their negligent and reckless actions, as long as there is evidence to overcome the immunity. Generally speaking, a negligent act will not rise to the level of culpability necessary to overcome immunity. Instead, there must be some “willful” or “wanton” conduct. While an intentional action certainly would satisfy this requirement, it is not required. Courts are willing to infer this level of culpability if a plaintiff can show, for example, that a government entity knew about a dangerous defect but failed to do anything about it. This is exactly what happened in a recent case involving a woman who tripped and fell on an uneven sidewalk.

Bernardoni v. City of Saginaw: The Facts

In this case, a woman tripped and fell on two uneven slabs of concrete that made up the sidewalk. She filed a lawsuit against the City of Saginaw, claiming that it should be held liable for her injuries because the city was negligent in failing to repair the sidewalk. In a pre-trial deposition, she claimed that she did not know how long the sidewalk had been in that condition, but she believed it to have been like that for at least 30 days. In addition to her testimony, she provided photographs taken 30 days after her fall, showing the uneven surface.

August 4, 2016

Court Determines Parking Lot Placed Across Dangerous Street May Give Rise to Landowner Liability

by Sidney Schupak, Esq.

Businesses and other property owners owe a duty to those whom they invite onto their premises to keep and maintain a safe property. The level of care owed to a visitor depends in part on the relationship between the landowner and the guest. For example, a customer of a business is owed a more substantial duty than an unknown trespasser.

This duty is in place irrespective of the type of property, meaning that private property owners owe a duty, just as does the government, and so do non-profit organizations. In a recent case in front of a California appellate court, the court had an opportunity to discuss how far liability can extend in premises liability cases alleging that the landowner was negligent in the placement of a parking lot.

Vasilenko v. Grace Family Church: The Facts

Grace Family Church was located on a busy five-lane highway. Since the church’s parking lot would often fill up, the church arranged to use another parking lot across the highway when the primary lot filled. While parking attendants were present in both lots to direct traffic, there was no one available to assist churchgoers in crossing the busy five-lane highway to get back to the church from the parking lot.

July 27, 2016

Appellate Court Extends Liability in Car Accident Case to Adult Who Knowingly Allowed Minors to Consume Alcohol on Her Watch

by Sidney Schupak, Esq.

Earlier this month, a Maryland appellate court issued a landmark decision involving how far liability can extend in a case in which an adult knowingly allows a minor to consume alcohol, which later contributes to a fatal accident. In the case of Kiriakos v. Phillips, the court held that any adult who knowingly allows minors to consume alcohol may be held liable in a negligence action for any injuries sustained related to the minor’s consumption of alcohol.

The Facts of the Case

Kiriakos v. Phillips was actually two cases consolidated on appeal because they presented very similar issues. The companion case, Dankos v. Stapf, illuminates the issue presented to the court in a simple manner. Dankos was at a friend’s house drinking. When Stapf, the friend’s mother, came home, she asked some friends to leave but allowed a number of them to stay. Several of the friends who were permitted to stay were underage. The teens were drinking in the garage while Stapf was in the kitchen. The evidence presented at trial indicated that Stapf knew they were drinking, went to check on them several times, and even declined to do anything after her daughter expressed concern that several of the teens might be driving in their intoxicated condition.

On the next morning, while still intoxicated from the night before, Dankos and a friend left the Stapf house and were tragically involved in an accident. Dankos was killed in the accident, and his parents filed a negligence lawsuit against Stapf, arguing that her negligence contributed to their son’s death.

July 20, 2016

Recreational Use Statute May Prevent Accident Victims from Holding Negligent Landowners Responsible

by Sidney Schupak, Esq.

Earlier this month, a state appellate court issued a written opinion in a premises liability lawsuit brought by a man who was permanently paralyzed after he dove into a state-owned pond, breaking his neck. In the case, Roy v. State, the court ultimately dismissed the plaintiff’s claim against the government, based on the state’s recreational use statute.

Recreational Use Statutes in General

A recreational use statute is a legislatively enacted law that acts to prevent injured accident victims from holding certain property owners financially responsible. Specifically, the recreational use statute grants immunity to those who open their land for the general enjoyment of the public. In order for the doctrine to apply, the landowner must not be receiving a fee from the people using the land.

In Virginia, the recreational use statute requires qualifying property owners to remain free of liability for any dangerous condition on their land unless the owner acts with “gross negligence” or a “willful or malicious failure to guard or warn against a dangerous condition.”

July 13, 2016

Court Declines to Extend Government Liability in Fatal Motorcycle Accident Case

by Sidney Schupak, Esq.

Generally speaking, governments and government agencies are immune from personal injury lawsuits. However, there are several very important exceptions. First, a government can always consent to be named in a lawsuit if, for example, it believes that doing so is in the best interest of the public. There are also some situations in which a government can statutorily waive immunity, meaning that the legislature determines, in advance, when governments should be held liable, and it can codify these situations in various state statutes.

Another method of getting around government immunity is showing that the allegedly negligent act was a “ministerial” task, rather than a “discretionary” one. To be sure, the distinction between ministerial and discretionary tasks can be slight and is often confusing. But at its most basic level, the difference between the two is that a discretionary task is one that the government can decide how to carry out. A ministerial task is one that is routine and leaves the government no discretion in how to carry out the task. A recent case illustrates the distinction.

Mississippi Transportation Commission v. Adams

Adams passed away after crashing his motorcycle on a Mississippi highway that was under construction. According to the court’s written opinion, Adams accidentally entered a construction zone and then, as he attempted to exit the zone, lost control on some uneven pavement. His estate filed a wrongful death lawsuit against the government agency in charge of maintaining the highway. The allegation was that the road lines leading up to the construction zone were confusing to motorists, permitting them to enter the zone inadvertently.

July 6, 2016

West Virginia Supreme Court Reverses Lower Decision Granting Accident Plaintiff a New Trial

by Sidney Schupak, Esq.

The Supreme Court of Appeals of West Virginia recently released an opinion overruling a lower court’s decision granting a rear-end accident plaintiff a new trial on the issue of a knee injury that he had allegedly suffered as a result of the defendant’s negligence. The plaintiff had been awarded a jury verdict for some of the injuries he suffered in the accident, although the jury declined to attribute his knee injury to the crash, instead appearing to accept the defendant’s argument that the knee injury was the result of a previously existing condition unrelated to the accident. As a result of the state high court’s ruling vacating the new trial order, the plaintiff will be unable to receive compensation for his claim for damages resulting from the knee injury.

The Defendant Admitted Fault for the Accident that Injured the Plaintiff

The plaintiff in the case of Harnish v. Corra was struck from behind by a vehicle driven by the defendant as he waited to turn into his place of employment. According to the facts discussed in the recent appellate opinion, the plaintiff alleged to have suffered injuries to his neck, back, and knee in the collision. The defendant admitted he was at fault for the crash, but after the plaintiff filed a personal injury claim against him, the defendant denied that the plaintiff’s alleged knee injuries were caused by the accident.

Evidence at Trial Showed a Dispute as to the Cause of the Plaintiff’s Knee Injury

At a trial on the plaintiff’s personal injury claim, the plaintiff presented the testimony of the doctor who performed a knee surgery after the accident. The plaintiff’s expert opined that his knee injury was the result of a condition that was aggravated by the car accident. In response, the defendant called a medical expert to testify that the plaintiff’s knee injury was caused by long-term wear and tear, and it was not directly related to the accident. After the close of evidence, the jury awarded the plaintiff damages for his neck and back injuries but declined to award any damages based on his knee injury. The plaintiff then requested a new trial, arguing that the jury’s verdict was unsupported by the evidence that the car accident aggravated his knee condition, whether it existed before the crash or not. The trial court granted the plaintiff a new trial.

June 29, 2016

State Supreme Court Orders New Trial in Slip and Fall Case

by Sidney Schupak, Esq.

The Supreme Court of Iowa recently released a decision to vacate a jury verdict in favor of the plaintiff in a premises liability case filed by a woman who fell on a patch of ice on the defendant’s property. The appellate court found that the district court improperly instructed the jury and ordered a new trial on the plaintiff’s claim. Although the plaintiff will not receive the damages she was awarded at the first trial, she may still receive compensation for her loss based on the recent appellate ruling.

The Plaintiff Slips on an Ice Patch and is Injured in Front of a Hotel

The plaintiff in the case of Alcala v. Marriott International was a woman who was traveling on business and staying at a hotel that was operated by the defendant. On the morning of January 21, 2010, she slipped and fell while exiting the hotel en route to her client’s office, breaking her ankle. The plaintiff later filed a premises liability case against the defendants, presenting several theories of liability that could require judgment in her favor. After a trial in which evidence was presented concerning the weather conditions on the day of the accident, the defendant’s training of their employees, and private and non-mandatory industry standards for slip resistance and snow and ice removal, the jury returned a verdict holding the defendant 98% responsible for the plaintiff’s injuries.

The Defendant Appeals the Verdict, Alleging Improper Jury Instructions Were Given

After the verdict was reached, the defendant appealed for a new trial, arguing that the jury was given improper instructions that made the verdict legally inappropriate. Specifically, the defendant argued that the jury should not have been permitted to base their verdict upon the theory that the defendant had negligently trained their employees, since the plaintiff submitted no evidence to demonstrate what type of training would meet the standard of care. Furthermore, the defendant argued that the jury was improperly instructed as to the applicability of private industry safety standards regarding slip resistant materials.