Volume 4, Issue 3 March 2008 Inside Can Your Medical Expert Qualify To Testify ........ 4 Deadly Minutia (follow up) ....................... 6 D.C. Tightens Expert Disclosure Rules ..... 5 Fast Car - Fast Trial ................................... 8 Fatal Prank................................................ 7 Mother, May I? ......................................... 1 Test Your Knowledge ................................ 3 Worker’s Compensation ........................... 2 Mother, May I?: An amended pleading has no legal effect until the court grants permission to file the pleading by Dana L. Tubb, Esq. D uring the course of litigation, new information is often discovered that requires previously-filed pleadings to be amended— to add a new allegation to a complaint, for example, or a new defense to an answer. Rule 1:8 of the Rules of the Supreme Court of Virginia allows these amendments only by leave of court, although such leave is to be liberally granted. In practice, amendment is sought by filing a motion for leave to amend and attaching the amended pleading to that motion. In the case of Ahari v. Morrison, 275 Va. 92, 654 S.E.2d 891 (2008), the Supreme Court of Virginia recently considered whether an amended complaint is deemed filed when the motion for leave to amend is filed or when the trial court enters an order granting leave to amend. The answer to this question can potentially bar a plaintiff’s claim, as Ahari highlights. Ahari was a wrongful death case filed by the administrator of the decedent’s estate. The decedent died from injuries she sustained in an automobile accident on May 18, 2004. The original complaint named Fairfax County, Virginia and the Commonwealth of Virginia as defendants and claimed that they negligently failed to maintain and repair roadway surfaces, causing the decedent to lose control of her vehicle. On May 15, 2006—three days before the expiration of the applicable statute of limitations— the plaintiff moved for leave to file an amended complaint. The proposed amended complaint added five other parties as defendants to the suit. On July 28, 2006, the motion for leave to amend was granted. The defendants who were added by the amended complaint then filed a plea of the statute of limitations, arguing that the amended complaint had no legal effect until July 28, 2006, which was after the statute of limitations had expired, and that the claims presented against them in the amended complaint were, therefore, barred. The circuit court agreed with the defendants and dismissed the action. On appeal, the Supreme Court of Virginia affirmed the circuit court’s holding because, based on the language of Rule 1:8, the plaintiff could not file an amended pleading without leave of court, and leave was not granted until July 28, 2006. Although a prior case, Mechtensimer v. Wilson, 246 Va. 121, 431 S.E.2d 301 (1993), had already decided that an amended pleading had no legal efficacy absent leave of court, the Ahari case shows just how fatal it can be when a party fails to timely obtain the court’s permission for filing amended pleadings.
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Inside
Can Your Medical Expert Qualify To Testify ........4Deadly Minutia (follow up) ....................... 6D.C. Tightens Expert Disclosure Rules ..... 5Fast Car - Fast Trial ................................... 8Fatal Prank ................................................ 7 Mother, May I? ......................................... 1Test Your Knowledge ................................ 3Worker’s Compensation ........................... 2
Standing L- R: Benjamin J. Trichilo, Melissa H. Katz, Michael E. Thorsen,Dawn E. BoyceSteven W. Bancroft
Seated L- R: Heather K. Bardot, John D. McGavin, Julia B. Judkins, Stephen A. Horvath
Mother, May I?: An amended pleading has no legal effect
until the court grants permission to file the pleadingby Dana L. Tubb, Esq.
D uring the course of litigation, new information is often discovered that requires
previously-filed pleadings to be amended—to add a new allegation to a complaint, for example, or a new defense to an answer. Rule 1:8 of the Rules of the Supreme Court of Virginia allows these amendments only by leave of court, although such leave is to be liberally granted. In practice, amendment is sought by filing a motion for leave to amend and attaching the amended pleading to that motion. In the case of Ahari v. Morrison, 275 Va. 92, 654 S.E.2d 891 (2008), the Supreme Court of Virginia recently considered whether an amended complaint is deemed filed when the motion for leave to amend is filed or when the trial court enters an order granting leave to amend. The answer to this question can potentially bar a plaintiff’s claim, as Ahari highlights. Ahari was a wrongful death case filed by the administrator of the decedent’s estate. The decedent died from injuries she sustained in an automobile accident on May 18, 2004. The original complaint named Fairfax County, Virginia and the Commonwealth of Virginia as defendants and claimed that they negligently failed to maintain and repair roadway surfaces, causing the decedent to lose control of her vehicle. On May 15, 2006—three days before the expiration of the applicable statute of limitations—the plaintiff moved for leave to file an amended complaint. The proposed amended complaint added five other parties as defendants to the suit. On July 28, 2006, the motion for leave to amend was
Fast Car - Fast Trial?By Allyson C. Kitchel, Esquire
The District of Columbia Superior Court, where most D.C. personal injury suits are filed, has
recently enacted a series of new procedures to help move motor vehicle accident cases through the court more quickly. D.C. cases proceed very differently than in Virginia, where most courts set a trial date at the beginning of the case. Virginia courts then count backwards from the trial date to determine deadlines, such as an expert designation deadline, or a discovery deadline, that will govern the case. In contrast, the District of Columbia Superior Court schedules all new cases for an Initial Scheduling Conference. At that conference, the attorneys inform the court whether they believe the case will require a short, average, or long schedule. For example, a straightforward low-impact car accident might have a fast schedule, and discovery would be closed in a few months, but a complex medical malpractice suit would get a year or more to conduct discovery. Under the old D.C. procedures, one of the deadlines set at the outset of the case was a deadline for filing dispositive motions, such as a motion for summary judgment. Motor vehicle cases are rarely decided by such a motion. Because motor vehicle cases are fact-driven, a jury most often will decide a case. As a result, after discovery closes in motor vehicle cases, the matter would languish on the court’s docket until the dispositive motions deadline passed, and only then would a case proceed to the mandatory mediation. In an effort to move these cases along faster, the court has
instituted a new motor vehicle “fast track.” Under these procedures, as before, counsel will appear at an Initial Scheduling Conference and set the case on a scheduling track. However, under the new guidelines, there will be no time allotted in the schedule for the filing dispositive motions unless counsel specifically advises the court that such motions are necessary. Counsel will also set a mediation date, as well as a pretrial date, with the judge who will try the case. This will allow our carriers to be on notice of these dates well in advance, which is important given the mandate that an insurance company representative personally attend mediation and pre-trial conferences. The court is hopeful that these new guidelines will make the D.C. Superior Court a more efficient place to litigate. The new fast track program is in an effort to streamline procedures for uncomplicated cases, and to help judges more efficiently move cases off their dockets. While litigating in the District of Columbia still takes longer than your average case in Virginia, we are hopeful that the new rules will allow us to more quickly resolve disputes on behalf of our clients.
granted. The defendants who were added by the amended complaint then filed a plea of the statute of limitations, arguing that the amended complaint had no legal effect until July 28, 2006, which was after the statute of limitations had expired, and that
the claims presented against them in the amended complaint were, therefore, barred. The circuit court agreed with the defendants and dismissed the action. On appeal, the Supreme Court of Virginia affirmed the circuit court’s holding because, based on the language of Rule 1:8, the plaintiff could not file an amended pleading without leave of court, and leave was
not granted until July 28, 2006. Although a prior case, Mechtensimer v. Wilson, 246 Va. 121, 431 S.E.2d 301 (1993), had already decided that an amended pleading had no legal efficacy absent leave of court, the Ahari case shows just how fatal it can be
when a party fails to timely obtain the court’s permission for filing amended pleadings.
Where an employee is partially disabled (unable to return to pre-injury
employment), then that employee is entitled to temporary total disability benefits where the employee shows an inability to find suitable employment. To receive benefits the employee must present evidence that he or she has made reasonable efforts to market their work capacity.
The issue addressed by the Virginia Supreme Court and Ford Motor Co. v. Favinger, Record No. 062620, January 11, 2008, was whether an employee who returned to full-time work for the same employer following an injury, had a duty to market his work capacity with respect to potential overtime pay. Prior to his injury the employee worked approximately 50 hours per week, and was paid overtime. Following the injury he returned to light-duty work working 40 hours per week. The employee claimed temporary total disability benefits, based upon his reduced earnings.
Benefits were initially denied by the Deputy Commissioner, who found that the employee was barred because he made no effort to find outside work with other employers. On appeal, the Full Commission reversed, finding that it would be unreasonable to expect the employee to find additional employment in excess of
40 hours per week with another employer, because such work would likely interfere with any overtime work that may become available. This decision was affirmed in an unpublished decision by the Court of Appeals.
On appeal to the Virginia Supreme Court, the Award of Benefits was reversed. The Court found that the employee was not entitled to wage-loss benefits because he presented no evidence that he made any effort to find other employment.
The Court held that the Commission and Court of Appeals erred when they found that the employee’s full-time employment by his former employer relieved him of the obligation
of attempting to find outside work with other employers. The Court held that:
“[t]he fact that he accepted the light duty job and was willing to work overtime when Ford offered it did not negate the requirement that he make a reasonable effort to market his residual work capacity, i.e., the additional 10 hours of overtime.”
Because the employee testified that he made no effort to find other employment, even though he was losing overtime with his employer, rendered him legally ineligible for compensation benefits.
This holding is significant for any claim where an employee worked overtime prior to an injury, and then claims wage loss benefits. The mere fact that the employee returned to work for the same employer and sustains a wage loss does not automatically entitle that employee to benefits. The employee must show either that he has made reasonable efforts to find employment with other employers, or that all available employment with other employers would conflict with the job requirements of his current employer. The mere fact that an injured worker sustains a wage loss following a compensable injury does not justify the automatic award of compensation benefits.
Fatal Prank Is not Covered By Workers’ ComPensatIon
By Benjamin J. Trichilo, Esquire
On appeal, the Supreme Court of Virginia reversed, holding that the decedent was the victim of a purely personal assault that was not directed against her as an employee. The Court held that the co-worker’s “prank” was an assault that had “no relationship” with the decedent’s status as an employee. Whether intended as flirtatious, playful or harassment, the act of shocking a co-worker with the cardiac defibrillator “was purely personal.” Because the assault was purely personal, and there was no causal connection with the employment, the decedent’s estate was entitled to file suit against her co-workers and their employer.
The important and tragic lesson of this case is that every injury that occurs at work is not automatically covered under the Act. Where the injury results from horseplay or assault by a co-employee, then careful analysis and evaluation is needed.
The mere fact that an employee sustains an injury at work due to horseplay or an assault
by another employee does not mean that the injury is compensable under the Virginia Workers’ Compensation Act. Compensability requires that the injury arise out of, and occur during the course of employment. The injury occurs during the course of employment when it takes place during working hours. The “arising out of” component is met if there is a causal connection between the employee’s injury and the conditions required by the employer for the performance of the work. If the assault, or horseplay, is personal to the employee, and not directed against the employee due to his employment, then the injury does not arise out of the employment.
These principles were recently applied in the case of Fred Hilton, Administrator v. Joshua Martin, Record No. 070091, January 11, 2008. In that case, the decedent was an EMT worker riding as a passenger in an ambulance. Her co-worker, riding in the back of the ambulance, thought that he would play a prank and shock the decedent, using the two paddles of the cardiac defibrillator. The decedent told her co-worker to leave her alone and to put away the defibrillator, and he appeared to comply. However, his compliance was only temporary, and shortly thereafter he picked up the defibrillator paddles and shocked the decedent, causing her to sustain a seizure. Although she was immediately taken to a hospital, and was in the presence of other EMT workers, she never regained consciousness and died several days later.
The decedent’s estate filed negligence actions against the co-worker, another employee who rendered emergency assistance, and the ambulance owner. The trial court dismissed the action, holding that the cause of action was barred by the exclusive remedy provisions of the Virginia Workers’ Compensation Act.
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The Shamrock, which was also called the “seamroy” by the Celts, was a sacred plant in ancient Ireland because it symbolized
the rebirth of spring. By the seventeenth century, the shamrock had become a symbol of emerging Irish nationalism. As the English began to seize Irish land and make laws against the use of the Irish language and the practice of Catholicism, many Irish began to wear the shamrock as a symbol of their pride in their heritage and their displeasure with English rule.
The LeprechaunThe original Irish name for these figures of folklore is
“lobaircin,” meaning “small-bodied fellow.”
Belief in leprechauns probably stems from Celtic belief in fairies, tiny men and women who could use their magical powers to serve good or evil. In Celtic folktales, leprechauns were cranky souls, responsible for mending the shoes of the other fairies. Though only minor figures in Celtic folklore, leprechauns were known for their trickery, which they often used to protect their much-fabled treasure.
Leprechauns had nothing to do with St. Patrick or the celebration of St. Patrick’s Day, a Catholic holy day. In 1959, Walt Disney released a film called Darby O’Gill & the Little People, which introduced America to a very different sort of leprechaun than the cantankerous little man of Irish folklore. This cheerful, friendly leprechaun is a purely American invention, but has quickly evolved into an easily recognizable symbol of both St. Patrick’s Day and Ireland in general.
1) Some areas in Ireland are known to receive this many inches of rain each year, which accounts for the brilliantly green grass that has earned Ireland the nickname the “emerald isle”:Sixty inches / Seventy inches / Eighty inches / Ninety inches
2) “Erin Go Bragh,” a phrase heard often on St. Patrick’s Day, means:I Love Ireland / Ireland Forever / Brave and Free / Ireland, My Home
3) Irish tradition says that anyone who kisses the blarney stone, which is located near this town, will be blessed with the Irish “gift of gab”:Dublin / Wexford / Cork / Waterford
4) This Nobel Prize-winning Irish poet and playwright was also a senator of the Irish Free State from 1922 to 1928:George Bernard Shaw / James Joyce / Jonathan Swift / William Butler Yeats
5) This film, shot in Ireland in 1952, was directed by John Ford:Ryan’s Daughter / The Quiet Man / The Dead / The Informer
6) Traditional Irish music has found an international audience with the popularity of such Celtic bands as:The Chieftains / The Lads / Shannon Rovers / Sweet Honey in the Rock
7) Today, the prime minister of the Republic of Ireland is:Frank McCourt / Ian Dunkirk / Bertie Ahern / Gerry Adams
8) In November 1995, the people of Ireland narrowly passed a referendum legalizing:Same-sex marriages / Abortion / Divorce / Marijuana
9) With 27,136 square miles of land, the Republic of Ireland is approximately half the size of this U.S. state:Montana / California / Louisiana / Arkansas
10) Today, this number of Americans trace their ancestry back to Ireland:Ten million / Twenty-five million / Forty million / Sixty-five million
I n the October 2007 edition of the TBMHJ Newsletter, the Deadly Minutia article reported
three recent decisions in a set of companion cases filed in the Circuit Court of the City of Richmond. The three cases sought to recover for the alleged wrongful death of the driver and two passengers in a vehicle involved in a head-on collision when the driver of their vehicle inexplicably veered over the double yellow line. The trial court dismissed all three actions, and, on February 15, 2008, the Supreme Court of Virginia refused to hear the appeals. The trial court’s holdings are now final.
Two years after the accident, on the last day before the statute of limitations expired, the personal administrators of each decedent filed lawsuits in the Circuit Court of the City of Richmond for wrongful death: Torres v. Virginia Dept. of Transportation, et al., Case No. CL05T02139-00; Navarijo v. Virginia Dept. of Transportation, et al., CL05T02137-00; and Hinojosa v. Virginia Dept of Transportation, et al., CL05T02138-00. The named plaintiff in each case was the decedent, “who sue[d] by ” his respective administrator or administratrix; each complaint was signed as the “Estate of” the respective decedent. The claim in each case was that Mr. Torres, the driver of the vehicle occupied by the decedents, veered out of his lane due to improper lane markings on the highway. The portion of Route 288 where Torres was driving was under construction, and a detour for traffic was laid out by new lane paint, orange barrels, and a barricade with a “Road Closed” sign. Instead of following the detour and curving right, Torres allegedly was headed straight for the closed section.
APAC-Virginia, Inc. was the general contractor on the construction project and was named as a defendant in each of the three lawsuits. The corporation had merged into APAC-Atlantic, Inc., however, and no longer existed. Major litigation was in motion until the defense team, consisting of Benjamin J. Trichilo, Esq., Michael C. Montavon, Esq., and Dana L. Tubb, Esq., brought two problems to the Court’s attention: (1) the wrong plaintiff was named in each case and (2) a non-existent defendant was named in each case.
In Virginia, any statute in derogation of the common law must be strictly construed. Actions for wrongful death did not exist at common law; therefore, the statutes that create the right to maintain such an action must be followed exactly. Section 8.01-50(B)
Deadly Minutia: The Importance of Getting It Right (Follow-Up)
by Dana L. Tubb, Esq.
of the Code of Virginia states that every action for wrongful death “shall be brought by and in the name of the personal representative of such deceased person.” Under the precedent established by Herndon v. St. Mary’s Hospital, 266 Va. 472, 587 S.E.2d 567 (2003), failure to precisely follow such directions is fatal to an action. Ruling on APAC’s Motion to Dismiss and for Summary Judgment, Judge T. J. Markow found that neither the named decedent nor his estate has standing in a wrongful death action:
This is not merely a mis-ordering of words. It is particularly clear that an improper plaintiff is before the court in the endorsement of the Complaint because the Complaint is endorsed by “THE ESTATE OF HUMBERTO TORRES.” Humberto Torres is deceased. He cannot have standing in this action. Nor does his estate, therefore, APAC’s Motion to Dismiss is SUSTAINED.”
Besides naming the correct plaintiff, an action must be filed against the proper defendant. Naming a non-existent party as a defendant does not meet this requirement. APAC-Virginia, Inc. had merged into APAC-Atlantic, Inc. several months prior to the collision that resulted in Torres’ death. Accordingly, it no longer existed as a legal entity. Although the misnomer statute, Section 8.01-6.2, allows a pleading to be amended to correct confusion in a trade name, that relief can only be granted when the correct party had notice of the plaintiff’s claim prior to the expiration of the statute of limitations. Torres’ lawsuit was filed on the last day before the statute of limitations expired, and it was not served on APAC-Atlantic, Inc. until a year later. As Judge Markow found:
APAC-Atlantic did not have actual notice of the claim prior to the expiration of the statute of limitations for filing the claim. Therefore, this amendment would be more than the correction of a misnomer, but would be instead the substitution of a party after the statute of limitations had run.
APAC’s Motion for Summary Judgment was sustained, and judgment was entered against each plaintiff in the three lawsuits. The plaintiff in each case appealed the ruling, and the Supreme Court of Virginia denied granting a writ. Judge Markow’s rulings are now final.
D.C. Tightens Expert Disclosure Rules of Treating Physicians
By Brian C. Wilberg, Esq.
Can Your Medical Expert Qualify To Testify?By Nichole Flippen, Esquire
withdrawal seizure (AWS) and not a diabetic seizure induced by hypoglycemia, which resulted from the emergency room physician’s course of treatment. The medical expert called to testify on the emergency room physician’s behalf was a board certified emergency medicine specialist that had been practicing for twenty-seven years. At trial, defense counsel successfully qualified a single medical expert in two distinct areas, which supported Dr. Anderson’s initial victory. First, the expert was qualified as an expert on the standard of care that an emergency room doctor owes to a diabetic patient suffering from hypoglycemia. Second, the expert was qualified as an expert of the cause of brain injuries resulting from AWS.
On appeal, plaintiff’s counsel posed a strong argument that the defense expert was not properly qualified to offer the opinions that he offered as evidence at trial. The Supreme Court of Virginia agreed, finding that while the defendant’s medical expert was qualified by the court as an expert on the standard of care for an emergency medicine physician and causation, the medical expert was not qualified to offer an opinion as to the cause of Dagner’s brain injury and subsequent death based on the specific facts of Dagner’s case. In particular, the medical expert was not qualified to testify as to the cause of Dagner’s seizure where one of multiple factors (i.e. both diabetes and AWS) could have caused Dagner’s seizure.
The Court’s opinion reinforces the requirement that a medical expert must have specific knowledge, as opposed to general, to survive qualification to testify in court.
Last year, the Supreme Court of Virginia ruled on the matter of Dagner v. Anderson, an interesting
case of medical malpractice. Dagner v. Anderson was a wrongful death and medical malpractice suit against an emergency room physician (Dr. Charles Anderson) involving a claim that the physician violated the standard of care in treating a diabetic with a high blood alcohol level.
In this case, an insulin-dependent diabetic woman (Dagner) died in an emergency room after being treated for low blood sugar (hypoglycemia). After being found unresponsive at home, Dagner was transported to the emergency room by ambulance. While in the ambulance, Dagner was treated with glucagon to raise her blood sugar level. Upon arrival at the hospital, she was tested and found to have a blood alcohol level of .24. Dagner’s treating emergency room physician, Dr. Anderson, later administered 50 milligrams of dextrose and fed to further stabilize Dagner’s blood sugar level. Once Dagner’s blood sugar level was stabilized, Dagner and Dr. Anderson discussed the importance that she refrain from consuming alcohol as a diabetic. Because of Dagner’s blood sugar level, Dr. Anderson asked a nurse to contact Dagner’s daughter to pick her up from the emergency room. The nurse never informed Dr. Anderson that Dagner’s daughter was unable to pick her up from the hospital. Dagner sat in the emergency waiting area from shortly after 10:00 p.m. on September 22, 2000 through to the morning of September 23, 2000, when she was found “comatose and unresponsive,” with a blood sugar level of 17. Dagner’s daughter subsequently filed a wrongful death and medical malpractice action against Dr. Anderson.
The matter initially resulted in a verdict for the defendant, emergency room physician, on the basis of medical expert witness testimony that Dagner’s brain injury and death were caused by an alcohol
In a June 21, 2007, decision in the case of Structural Preservation Systems, Inc. v. Petty, the District of Columbia Court of Appeals addressed the fine distinction between a treating physician as an expert
witness and a treating physician as an ordinary witness. This case involved an appeal from a negligence suit against Structural Preservation Systems, Inc., wherein a jury had awarded the plaintiff, David Petty, $150,000 for injuries he sustained at his workplace. In Petty, the Court had to decide if it was proper for the plaintiff's expert witness, a chiropractor who had treated the plaintiff, to provide testimony, which had not been disclosed before trial, as to the reasonableness and necessity of the plaintiff's MRI and physical therapy, which had been ordered and performed by other health care providers. The Court ultimately ruled that the trial court should not have admitted such testimony. The Court based its ruling on the difference between rules of disclosure for treating physicians and those for other expert witnesses.
Rule 26 (b)(4) of D.C.'s Superior Court Rules of Civil Procedure entitles parties to discover prior to trial the facts and opinions to which other parties' experts are expected to testify at trial. Any such facts and opinions that are not properly disclosed may be, and often are, excluded from trial. Treating physicians, however, are subject to an important exception to this rule. "Insofar as a physician obtains and develops his information and opinions in the course of his treatment of a patient, he becomes an 'actor or viewer' who should be treated as an ordinary witness rather than as an expert covered under Rule 26 (b)(4)." Structural Pres. Sys., Inc. v. Petty, 927 A.2d 1069 (D.C. 2007) (quoting Adkins v. Morton, 494 A.2d 652, 657 (D.C. 1985)). As such, the facts and opinions a physician obtains and develops in the course of his or her treatment of a patient do not necessarily need to be disclosed prior to trial.
The key question in the determination of the need for disclosure is whether the substance of the facts and opinions at issue are of the type "formulated for treatment purposes or prepared in anticipation of litigation." Petty, 927 A.2d at 1074. The Court in Petty held that "a treating physician's opinion as to the correctness or incorrectness of another treating physician's opinion tends to be of the type associated with preparation for litigation, rather than simply treating the patient." Id. The Court ruled that the plaintiff's treating physician should not have been permitted to present undisclosed testimony as to the reasonableness and necessity of treatment performed by other health care providers and that the admission of such testimony may have unfairly prejudiced the defendant.
Thus, it appears that once a treating physician steps beyond the role of discussing his or her own actual treatment of a patient, the treating physician becomes an expert witness whose testimony must be properly disclosed prior to trial. Failing such disclosure, the court cannot allow such testimony at trial. Although the Court's decision in Petty leaves some wiggle room for the admission of treating physician's testimony, the Court has essentially closed a back door through which expert medical testimony may have been able to slip into trial without the usual, required prior disclosure. If a treating physician wants to present expert testimony, that physician has to come in through the front door, with a proper Rule 26 (b)(4) disclosure, just like every other expert.
D.C. Tightens Expert Disclosure Rules of Treating Physicians
By Brian C. Wilberg, Esq.
Can Your Medical Expert Qualify To Testify?By Nichole Flippen, Esquire
withdrawal seizure (AWS) and not a diabetic seizure induced by hypoglycemia, which resulted from the emergency room physician’s course of treatment. The medical expert called to testify on the emergency room physician’s behalf was a board certified emergency medicine specialist that had been practicing for twenty-seven years. At trial, defense counsel successfully qualified a single medical expert in two distinct areas, which supported Dr. Anderson’s initial victory. First, the expert was qualified as an expert on the standard of care that an emergency room doctor owes to a diabetic patient suffering from hypoglycemia. Second, the expert was qualified as an expert of the cause of brain injuries resulting from AWS.
On appeal, plaintiff’s counsel posed a strong argument that the defense expert was not properly qualified to offer the opinions that he offered as evidence at trial. The Supreme Court of Virginia agreed, finding that while the defendant’s medical expert was qualified by the court as an expert on the standard of care for an emergency medicine physician and causation, the medical expert was not qualified to offer an opinion as to the cause of Dagner’s brain injury and subsequent death based on the specific facts of Dagner’s case. In particular, the medical expert was not qualified to testify as to the cause of Dagner’s seizure where one of multiple factors (i.e. both diabetes and AWS) could have caused Dagner’s seizure.
The Court’s opinion reinforces the requirement that a medical expert must have specific knowledge, as opposed to general, to survive qualification to testify in court.
Last year, the Supreme Court of Virginia ruled on the matter of Dagner v. Anderson, an interesting
case of medical malpractice. Dagner v. Anderson was a wrongful death and medical malpractice suit against an emergency room physician (Dr. Charles Anderson) involving a claim that the physician violated the standard of care in treating a diabetic with a high blood alcohol level.
In this case, an insulin-dependent diabetic woman (Dagner) died in an emergency room after being treated for low blood sugar (hypoglycemia). After being found unresponsive at home, Dagner was transported to the emergency room by ambulance. While in the ambulance, Dagner was treated with glucagon to raise her blood sugar level. Upon arrival at the hospital, she was tested and found to have a blood alcohol level of .24. Dagner’s treating emergency room physician, Dr. Anderson, later administered 50 milligrams of dextrose and fed to further stabilize Dagner’s blood sugar level. Once Dagner’s blood sugar level was stabilized, Dagner and Dr. Anderson discussed the importance that she refrain from consuming alcohol as a diabetic. Because of Dagner’s blood sugar level, Dr. Anderson asked a nurse to contact Dagner’s daughter to pick her up from the emergency room. The nurse never informed Dr. Anderson that Dagner’s daughter was unable to pick her up from the hospital. Dagner sat in the emergency waiting area from shortly after 10:00 p.m. on September 22, 2000 through to the morning of September 23, 2000, when she was found “comatose and unresponsive,” with a blood sugar level of 17. Dagner’s daughter subsequently filed a wrongful death and medical malpractice action against Dr. Anderson.
The matter initially resulted in a verdict for the defendant, emergency room physician, on the basis of medical expert witness testimony that Dagner’s brain injury and death were caused by an alcohol
In a June 21, 2007, decision in the case of Structural Preservation Systems, Inc. v. Petty, the District of Columbia Court of Appeals addressed the fine distinction between a treating physician as an expert
witness and a treating physician as an ordinary witness. This case involved an appeal from a negligence suit against Structural Preservation Systems, Inc., wherein a jury had awarded the plaintiff, David Petty, $150,000 for injuries he sustained at his workplace. In Petty, the Court had to decide if it was proper for the plaintiff's expert witness, a chiropractor who had treated the plaintiff, to provide testimony, which had not been disclosed before trial, as to the reasonableness and necessity of the plaintiff's MRI and physical therapy, which had been ordered and performed by other health care providers. The Court ultimately ruled that the trial court should not have admitted such testimony. The Court based its ruling on the difference between rules of disclosure for treating physicians and those for other expert witnesses.
Rule 26 (b)(4) of D.C.'s Superior Court Rules of Civil Procedure entitles parties to discover prior to trial the facts and opinions to which other parties' experts are expected to testify at trial. Any such facts and opinions that are not properly disclosed may be, and often are, excluded from trial. Treating physicians, however, are subject to an important exception to this rule. "Insofar as a physician obtains and develops his information and opinions in the course of his treatment of a patient, he becomes an 'actor or viewer' who should be treated as an ordinary witness rather than as an expert covered under Rule 26 (b)(4)." Structural Pres. Sys., Inc. v. Petty, 927 A.2d 1069 (D.C. 2007) (quoting Adkins v. Morton, 494 A.2d 652, 657 (D.C. 1985)). As such, the facts and opinions a physician obtains and develops in the course of his or her treatment of a patient do not necessarily need to be disclosed prior to trial.
The key question in the determination of the need for disclosure is whether the substance of the facts and opinions at issue are of the type "formulated for treatment purposes or prepared in anticipation of litigation." Petty, 927 A.2d at 1074. The Court in Petty held that "a treating physician's opinion as to the correctness or incorrectness of another treating physician's opinion tends to be of the type associated with preparation for litigation, rather than simply treating the patient." Id. The Court ruled that the plaintiff's treating physician should not have been permitted to present undisclosed testimony as to the reasonableness and necessity of treatment performed by other health care providers and that the admission of such testimony may have unfairly prejudiced the defendant.
Thus, it appears that once a treating physician steps beyond the role of discussing his or her own actual treatment of a patient, the treating physician becomes an expert witness whose testimony must be properly disclosed prior to trial. Failing such disclosure, the court cannot allow such testimony at trial. Although the Court's decision in Petty leaves some wiggle room for the admission of treating physician's testimony, the Court has essentially closed a back door through which expert medical testimony may have been able to slip into trial without the usual, required prior disclosure. If a treating physician wants to present expert testimony, that physician has to come in through the front door, with a proper Rule 26 (b)(4) disclosure, just like every other expert.
The Shamrock, which was also called the “seamroy” by the Celts, was a sacred plant in ancient Ireland because it symbolized
the rebirth of spring. By the seventeenth century, the shamrock had become a symbol of emerging Irish nationalism. As the English began to seize Irish land and make laws against the use of the Irish language and the practice of Catholicism, many Irish began to wear the shamrock as a symbol of their pride in their heritage and their displeasure with English rule.
The LeprechaunThe original Irish name for these figures of folklore is
“lobaircin,” meaning “small-bodied fellow.”
Belief in leprechauns probably stems from Celtic belief in fairies, tiny men and women who could use their magical powers to serve good or evil. In Celtic folktales, leprechauns were cranky souls, responsible for mending the shoes of the other fairies. Though only minor figures in Celtic folklore, leprechauns were known for their trickery, which they often used to protect their much-fabled treasure.
Leprechauns had nothing to do with St. Patrick or the celebration of St. Patrick’s Day, a Catholic holy day. In 1959, Walt Disney released a film called Darby O’Gill & the Little People, which introduced America to a very different sort of leprechaun than the cantankerous little man of Irish folklore. This cheerful, friendly leprechaun is a purely American invention, but has quickly evolved into an easily recognizable symbol of both St. Patrick’s Day and Ireland in general.
1) Some areas in Ireland are known to receive this many inches of rain each year, which accounts for the brilliantly green grass that has earned Ireland the nickname the “emerald isle”:Sixty inches / Seventy inches / Eighty inches / Ninety inches
2) “Erin Go Bragh,” a phrase heard often on St. Patrick’s Day, means:I Love Ireland / Ireland Forever / Brave and Free / Ireland, My Home
3) Irish tradition says that anyone who kisses the blarney stone, which is located near this town, will be blessed with the Irish “gift of gab”:Dublin / Wexford / Cork / Waterford
4) This Nobel Prize-winning Irish poet and playwright was also a senator of the Irish Free State from 1922 to 1928:George Bernard Shaw / James Joyce / Jonathan Swift / William Butler Yeats
5) This film, shot in Ireland in 1952, was directed by John Ford:Ryan’s Daughter / The Quiet Man / The Dead / The Informer
6) Traditional Irish music has found an international audience with the popularity of such Celtic bands as:The Chieftains / The Lads / Shannon Rovers / Sweet Honey in the Rock
7) Today, the prime minister of the Republic of Ireland is:Frank McCourt / Ian Dunkirk / Bertie Ahern / Gerry Adams
8) In November 1995, the people of Ireland narrowly passed a referendum legalizing:Same-sex marriages / Abortion / Divorce / Marijuana
9) With 27,136 square miles of land, the Republic of Ireland is approximately half the size of this U.S. state:Montana / California / Louisiana / Arkansas
10) Today, this number of Americans trace their ancestry back to Ireland:Ten million / Twenty-five million / Forty million / Sixty-five million
I n the October 2007 edition of the TBMHJ Newsletter, the Deadly Minutia article reported
three recent decisions in a set of companion cases filed in the Circuit Court of the City of Richmond. The three cases sought to recover for the alleged wrongful death of the driver and two passengers in a vehicle involved in a head-on collision when the driver of their vehicle inexplicably veered over the double yellow line. The trial court dismissed all three actions, and, on February 15, 2008, the Supreme Court of Virginia refused to hear the appeals. The trial court’s holdings are now final.
Two years after the accident, on the last day before the statute of limitations expired, the personal administrators of each decedent filed lawsuits in the Circuit Court of the City of Richmond for wrongful death: Torres v. Virginia Dept. of Transportation, et al., Case No. CL05T02139-00; Navarijo v. Virginia Dept. of Transportation, et al., CL05T02137-00; and Hinojosa v. Virginia Dept of Transportation, et al., CL05T02138-00. The named plaintiff in each case was the decedent, “who sue[d] by ” his respective administrator or administratrix; each complaint was signed as the “Estate of” the respective decedent. The claim in each case was that Mr. Torres, the driver of the vehicle occupied by the decedents, veered out of his lane due to improper lane markings on the highway. The portion of Route 288 where Torres was driving was under construction, and a detour for traffic was laid out by new lane paint, orange barrels, and a barricade with a “Road Closed” sign. Instead of following the detour and curving right, Torres allegedly was headed straight for the closed section.
APAC-Virginia, Inc. was the general contractor on the construction project and was named as a defendant in each of the three lawsuits. The corporation had merged into APAC-Atlantic, Inc., however, and no longer existed. Major litigation was in motion until the defense team, consisting of Benjamin J. Trichilo, Esq., Michael C. Montavon, Esq., and Dana L. Tubb, Esq., brought two problems to the Court’s attention: (1) the wrong plaintiff was named in each case and (2) a non-existent defendant was named in each case.
In Virginia, any statute in derogation of the common law must be strictly construed. Actions for wrongful death did not exist at common law; therefore, the statutes that create the right to maintain such an action must be followed exactly. Section 8.01-50(B)
Deadly Minutia: The Importance of Getting It Right (Follow-Up)
by Dana L. Tubb, Esq.
of the Code of Virginia states that every action for wrongful death “shall be brought by and in the name of the personal representative of such deceased person.” Under the precedent established by Herndon v. St. Mary’s Hospital, 266 Va. 472, 587 S.E.2d 567 (2003), failure to precisely follow such directions is fatal to an action. Ruling on APAC’s Motion to Dismiss and for Summary Judgment, Judge T. J. Markow found that neither the named decedent nor his estate has standing in a wrongful death action:
This is not merely a mis-ordering of words. It is particularly clear that an improper plaintiff is before the court in the endorsement of the Complaint because the Complaint is endorsed by “THE ESTATE OF HUMBERTO TORRES.” Humberto Torres is deceased. He cannot have standing in this action. Nor does his estate, therefore, APAC’s Motion to Dismiss is SUSTAINED.”
Besides naming the correct plaintiff, an action must be filed against the proper defendant. Naming a non-existent party as a defendant does not meet this requirement. APAC-Virginia, Inc. had merged into APAC-Atlantic, Inc. several months prior to the collision that resulted in Torres’ death. Accordingly, it no longer existed as a legal entity. Although the misnomer statute, Section 8.01-6.2, allows a pleading to be amended to correct confusion in a trade name, that relief can only be granted when the correct party had notice of the plaintiff’s claim prior to the expiration of the statute of limitations. Torres’ lawsuit was filed on the last day before the statute of limitations expired, and it was not served on APAC-Atlantic, Inc. until a year later. As Judge Markow found:
APAC-Atlantic did not have actual notice of the claim prior to the expiration of the statute of limitations for filing the claim. Therefore, this amendment would be more than the correction of a misnomer, but would be instead the substitution of a party after the statute of limitations had run.
APAC’s Motion for Summary Judgment was sustained, and judgment was entered against each plaintiff in the three lawsuits. The plaintiff in each case appealed the ruling, and the Supreme Court of Virginia denied granting a writ. Judge Markow’s rulings are now final.
Where an employee is partially disabled (unable to return to pre-injury
employment), then that employee is entitled to temporary total disability benefits where the employee shows an inability to find suitable employment. To receive benefits the employee must present evidence that he or she has made reasonable efforts to market their work capacity.
The issue addressed by the Virginia Supreme Court and Ford Motor Co. v. Favinger, Record No. 062620, January 11, 2008, was whether an employee who returned to full-time work for the same employer following an injury, had a duty to market his work capacity with respect to potential overtime pay. Prior to his injury the employee worked approximately 50 hours per week, and was paid overtime. Following the injury he returned to light-duty work working 40 hours per week. The employee claimed temporary total disability benefits, based upon his reduced earnings.
Benefits were initially denied by the Deputy Commissioner, who found that the employee was barred because he made no effort to find outside work with other employers. On appeal, the Full Commission reversed, finding that it would be unreasonable to expect the employee to find additional employment in excess of
40 hours per week with another employer, because such work would likely interfere with any overtime work that may become available. This decision was affirmed in an unpublished decision by the Court of Appeals.
On appeal to the Virginia Supreme Court, the Award of Benefits was reversed. The Court found that the employee was not entitled to wage-loss benefits because he presented no evidence that he made any effort to find other employment.
The Court held that the Commission and Court of Appeals erred when they found that the employee’s full-time employment by his former employer relieved him of the obligation
of attempting to find outside work with other employers. The Court held that:
“[t]he fact that he accepted the light duty job and was willing to work overtime when Ford offered it did not negate the requirement that he make a reasonable effort to market his residual work capacity, i.e., the additional 10 hours of overtime.”
Because the employee testified that he made no effort to find other employment, even though he was losing overtime with his employer, rendered him legally ineligible for compensation benefits.
This holding is significant for any claim where an employee worked overtime prior to an injury, and then claims wage loss benefits. The mere fact that the employee returned to work for the same employer and sustains a wage loss does not automatically entitle that employee to benefits. The employee must show either that he has made reasonable efforts to find employment with other employers, or that all available employment with other employers would conflict with the job requirements of his current employer. The mere fact that an injured worker sustains a wage loss following a compensable injury does not justify the automatic award of compensation benefits.
Fatal Prank Is not Covered By Workers’ ComPensatIon
By Benjamin J. Trichilo, Esquire
On appeal, the Supreme Court of Virginia reversed, holding that the decedent was the victim of a purely personal assault that was not directed against her as an employee. The Court held that the co-worker’s “prank” was an assault that had “no relationship” with the decedent’s status as an employee. Whether intended as flirtatious, playful or harassment, the act of shocking a co-worker with the cardiac defibrillator “was purely personal.” Because the assault was purely personal, and there was no causal connection with the employment, the decedent’s estate was entitled to file suit against her co-workers and their employer.
The important and tragic lesson of this case is that every injury that occurs at work is not automatically covered under the Act. Where the injury results from horseplay or assault by a co-employee, then careful analysis and evaluation is needed.
The mere fact that an employee sustains an injury at work due to horseplay or an assault
by another employee does not mean that the injury is compensable under the Virginia Workers’ Compensation Act. Compensability requires that the injury arise out of, and occur during the course of employment. The injury occurs during the course of employment when it takes place during working hours. The “arising out of” component is met if there is a causal connection between the employee’s injury and the conditions required by the employer for the performance of the work. If the assault, or horseplay, is personal to the employee, and not directed against the employee due to his employment, then the injury does not arise out of the employment.
These principles were recently applied in the case of Fred Hilton, Administrator v. Joshua Martin, Record No. 070091, January 11, 2008. In that case, the decedent was an EMT worker riding as a passenger in an ambulance. Her co-worker, riding in the back of the ambulance, thought that he would play a prank and shock the decedent, using the two paddles of the cardiac defibrillator. The decedent told her co-worker to leave her alone and to put away the defibrillator, and he appeared to comply. However, his compliance was only temporary, and shortly thereafter he picked up the defibrillator paddles and shocked the decedent, causing her to sustain a seizure. Although she was immediately taken to a hospital, and was in the presence of other EMT workers, she never regained consciousness and died several days later.
The decedent’s estate filed negligence actions against the co-worker, another employee who rendered emergency assistance, and the ambulance owner. The trial court dismissed the action, holding that the cause of action was barred by the exclusive remedy provisions of the Virginia Workers’ Compensation Act.
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Inside
Can Your Medical Expert Qualify To Testify ........4Deadly Minutia (follow up) ....................... 6D.C. Tightens Expert Disclosure Rules ..... 5Fast Car - Fast Trial ................................... 8Fatal Prank ................................................ 7 Mother, May I? ......................................... 1Test Your Knowledge ................................ 3Worker’s Compensation ........................... 2
Standing L- R: Benjamin J. Trichilo, Melissa H. Katz, Michael E. Thorsen,Dawn E. BoyceSteven W. Bancroft
Seated L- R: Heather K. Bardot, John D. McGavin, Julia B. Judkins, Stephen A. Horvath
Mother, May I?: An amended pleading has no legal effect
until the court grants permission to file the pleadingby Dana L. Tubb, Esq.
D uring the course of litigation, new information is often discovered that requires
previously-filed pleadings to be amended—to add a new allegation to a complaint, for example, or a new defense to an answer. Rule 1:8 of the Rules of the Supreme Court of Virginia allows these amendments only by leave of court, although such leave is to be liberally granted. In practice, amendment is sought by filing a motion for leave to amend and attaching the amended pleading to that motion. In the case of Ahari v. Morrison, 275 Va. 92, 654 S.E.2d 891 (2008), the Supreme Court of Virginia recently considered whether an amended complaint is deemed filed when the motion for leave to amend is filed or when the trial court enters an order granting leave to amend. The answer to this question can potentially bar a plaintiff’s claim, as Ahari highlights. Ahari was a wrongful death case filed by the administrator of the decedent’s estate. The decedent died from injuries she sustained in an automobile accident on May 18, 2004. The original complaint named Fairfax County, Virginia and the Commonwealth of Virginia as defendants and claimed that they negligently failed to maintain and repair roadway surfaces, causing the decedent to lose control of her vehicle. On May 15, 2006—three days before the expiration of the applicable statute of limitations—the plaintiff moved for leave to file an amended complaint. The proposed amended complaint added five other parties as defendants to the suit. On July 28, 2006, the motion for leave to amend was
Fast Car - Fast Trial?By Allyson C. Kitchel, Esquire
The District of Columbia Superior Court, where most D.C. personal injury suits are filed, has
recently enacted a series of new procedures to help move motor vehicle accident cases through the court more quickly. D.C. cases proceed very differently than in Virginia, where most courts set a trial date at the beginning of the case. Virginia courts then count backwards from the trial date to determine deadlines, such as an expert designation deadline, or a discovery deadline, that will govern the case. In contrast, the District of Columbia Superior Court schedules all new cases for an Initial Scheduling Conference. At that conference, the attorneys inform the court whether they believe the case will require a short, average, or long schedule. For example, a straightforward low-impact car accident might have a fast schedule, and discovery would be closed in a few months, but a complex medical malpractice suit would get a year or more to conduct discovery. Under the old D.C. procedures, one of the deadlines set at the outset of the case was a deadline for filing dispositive motions, such as a motion for summary judgment. Motor vehicle cases are rarely decided by such a motion. Because motor vehicle cases are fact-driven, a jury most often will decide a case. As a result, after discovery closes in motor vehicle cases, the matter would languish on the court’s docket until the dispositive motions deadline passed, and only then would a case proceed to the mandatory mediation. In an effort to move these cases along faster, the court has
instituted a new motor vehicle “fast track.” Under these procedures, as before, counsel will appear at an Initial Scheduling Conference and set the case on a scheduling track. However, under the new guidelines, there will be no time allotted in the schedule for the filing dispositive motions unless counsel specifically advises the court that such motions are necessary. Counsel will also set a mediation date, as well as a pretrial date, with the judge who will try the case. This will allow our carriers to be on notice of these dates well in advance, which is important given the mandate that an insurance company representative personally attend mediation and pre-trial conferences. The court is hopeful that these new guidelines will make the D.C. Superior Court a more efficient place to litigate. The new fast track program is in an effort to streamline procedures for uncomplicated cases, and to help judges more efficiently move cases off their dockets. While litigating in the District of Columbia still takes longer than your average case in Virginia, we are hopeful that the new rules will allow us to more quickly resolve disputes on behalf of our clients.
granted. The defendants who were added by the amended complaint then filed a plea of the statute of limitations, arguing that the amended complaint had no legal effect until July 28, 2006, which was after the statute of limitations had expired, and that
the claims presented against them in the amended complaint were, therefore, barred. The circuit court agreed with the defendants and dismissed the action. On appeal, the Supreme Court of Virginia affirmed the circuit court’s holding because, based on the language of Rule 1:8, the plaintiff could not file an amended pleading without leave of court, and leave was
not granted until July 28, 2006. Although a prior case, Mechtensimer v. Wilson, 246 Va. 121, 431 S.E.2d 301 (1993), had already decided that an amended pleading had no legal efficacy absent leave of court, the Ahari case shows just how fatal it can be
when a party fails to timely obtain the court’s permission for filing amended pleadings.
