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Some healthcare providers strenuously deny the applicability of Va. Code Ann. §8.01-413(B & C) while suit for medical malpractice is pending. But tellingly, others have admitted its applicability, even with suit unserved. After Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), Riverside thrice admitted the applicability of §8.01-413(B)...

Despite refusing to comply with Va. Code Ann. §8.01-413(B) in medical malpractice, wrongful death, vehicle accident, and other personal injury cases, some healthcare providers try to avoid enforcement by companion §8.01-413(C). Their threshold argument that statutory enforcement under §8.01-413(C) constitutes impermissible litigation discovery is unfounded. Va. S....

Another defense tactic in medical malpractice case is attempting to fabricate a distinction between “paper” and “electronic” records. But Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006), the landmark case of Avery T. “Sandy” Waterman, Jr., Esq., also upheld the admissibility of such electronic database materials, extensive...

Historically in medical malpractice cases, the defense enjoyed knee-jerk success with convincing Courts to treat so-called “sentinel event reports” differently than other “incident reports”. But that has changed this decade, and stands to erode further in the face ofRiverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006),...

Following the landmark case of Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), handled by Avery T. “Sandy” Waterman, Jr., Esq., healthcare providers routinely are being forced to provide their incident reports and other investigative materials for medical malpractice cases. Toward stemming the changing judicial tide, some...

“The protection provided by § 8.01-581.17 is a qualified privilege similar to the privilege afforded by Rules of Court 4:1(b)(3),” observed Justice Lemons in Stevens v. Lemmie, 40 Va. Cir. 499, 512 (Petersburg 1996)(Lemons, J.)(emphasis added), a medical malpractice case. The limited privilege for certain “committee” communications pertains only “unless...

The last sentence of § 8.01-581.17(C) provides another broad exception that negates any privilege for routine incident reports, electronic incident data, sentinel event reports and investigative materials in medical malpractice cases: “nor shall this section preclude or affect discovery of or production of evidence relating to hospitalization...

The last sentence of § 8.01-581.17(C) provides a broad exception negating privilege for routine incident reports, electronic incident data, sentinel event reports and investigative materials in medical malpractice cases. “Nothing in this section shall be construed as providing any privilege to the hospital medical records...

Toward frustrating medical malpractice claims, hospitals, nursing homes and other healthcare institutions routinely keep “double books” about personal injury incidents – a laundered “patient chart” and other trenchant facility records about the patient. Healthcare institutions routinely withhold the latter from patients, claiming statutory quality-care/peer-review privilege under Va....

In a §1983 civil rights wrongful death suit, Avery T. “Sandy” Waterman, Jr., Esq. recently survived a federal court challenge to 755 days elapsing from filing to service of the pro se complaint. One unsuccessful defense line of attack was that the clerk’s multiple extensions were not granted within the original...

In a §1983 civil rights suit for wrongful death, Avery T. “Sandy” Waterman, Jr., Esq. recently withstood challenge in federal court to the pro se complaint not having been served for 755 days after filing. In Webb v. Stevens, 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008), the clerk had...

Recently, wrongful deaths were reduced by almost 50% and untoward personal injuries were reduced by over 35% by a 19-item non-cardiac surgical safety checklist. The New England Journal of Medicine reported this on January 29, 2009, by article, “A Surgical Safety Checklist to Reduce Morbility and Mortality in a...

The standard of review by a District Judge for a nondispositive motion decided by a Magistrate is whether the decision is “clearly erroneous or is contrary to law”. See, Fed. R. Civ. P. 72(a); and 28 U.S.C. §636(b)(1)(A). In Webb v. Stevens, No. 5:05-CV-33-BO(1) Order (E.D.N.C. May 22,...

The sufficiency of §1983 civil rights wrongful death and other federal suits is scrutinized in the light most favorable to the plaintiff, particularly when the initial complainant is pro se. Avery T. “Sandy” Waterman, Jr., Esq. recently prevailed on the point against Rule 12Motions to Dismiss in Webb v. Stevens, 2008 U.S....

The timeliness of §1983 civil rights wrongful death and other federal suits depends on when the complaint physically was delivered to a Court officer, not when it is stamped “filed” and/or its fees are paid. Avery T. “Sandy” Waterman, Jr., Esq. recently has survived the point in Webb v....

Fed. R. Civ. P. 15(a) strongly favors leave to amend being granted, including in §1983 civil right suits for wrongful death. Avery T. “Sandy” Waterman, Jr., Esq. recently was granted leave to amend a wrongful death suit against a former North Carolina state trooper with Rule 12 motions to dismiss pending. Webb v....

Federal wrongful death suits properly are amended to substitute the correct estate representative after the limitation period has run. The leading Virginia case was litigated by Avery T. “Sandy” Waterman, Jr., Esq. Zhu v. Rocco Farms, Inc., 1998 U.S. Dist. LEXIS 21781 (W.D. Va. 1998). A leading North...

An estate representative filing a federal suit for wrongful death pro se is not impermissible per se and does not constitute unauthorized practice of law. 28 U.S.C. §1654 expressly provides for pro se representation in Federal Court. Moreover, even assumingarguendo that such a temporary practice is disallowed, it is not just grounds for dismissal where...

Limiting access to courts by wrongful death and other personal injury victims and/or conspiring to abridge their constitutional protections under color of state law may violate federal civil rights under 42 U.S.C. §1983. Avery T. “Sandy” Waterman, Jr., Esq. recently withstood Fed. R. Civ. P. 12 motions to dismiss such...

A federal civil rights suit for wrongful death under 42 U.S.C. §1983 was cleared for discovery and Court-facilitated mediation at Status Conference earlier this month. The case is Webb v. Stevens, No. 5:05-CV-33-BO(1) in the Eastern District of North Carolina, with Avery T. “Sandy” Waterman, Jr., Esq. as lead counsel. Webb alleges...

Wrongful death and personal injury victims are entitled to discover case facts underlying their 42 U.S.C. §1983 civil rights claims before adverse adjudication of a dispositive motion, even if a defendant claims qualified immunity. On January 2, 2009, Avery T. “Sandy” Waterman, Jr., Esq. was ordered discovery in...

Qualified immunity does not insulate all officers from wrongful deaths or other personal injury claims under 42 U.S.C. §1983 for excessive force. See, e.g., Tennessee v. Garner, 471 U.S. 1 (1985); Massasoit v. Carter, 253 Fed. Appx. 295 (4th Cir. 2007);Schultz v. Braga, 455 F.3d 470 (4th Cir. 2006); Clem v. Corbeau,...

On June 9, 2008, Avery T. “Sandy” Waterman, Jr., Esq. served suit under Virginia’s Multiple Claimant Litigation Act. The case is Gilliam v. Hampton University, et al., No. CL07-1562, pending in the Circuit Court for the City of Hampton, Virginia. The multi-claimant action in Gilliam involves Doctor of Physical Therapy students suing...

Public notice, particularly Court-facilitated notice, of a class action, collective action or multi-claimant action often is critical to the lawsuit maximizing the number of victims obtaining redress. Avery T. “Sandy” Waterman, Jr., Esq. recently has obtained such favorable notice in Newport News and Williamsburg, Virginia. The Norfolk Division...

The defense may dispute mild and even moderate traumatic brain injury, particularly where neuroimaging is inconclusive. The defense opportunistically may contest the fact of brain injury and, alternatively, may assert that the victim is malingering. The victim’s lawyer must protect his brain injury client against any such unfounded ploy...

The defense may dispute mild and even moderate traumatic brain injury, particularly where neuroimaging is inconclusive. The defense opportunistically may contest the fact of brain injury and, alternatively, may assert that the victim is malingering. The victim’s lawyer must protect his brain injury client against any...