03 Apr Virginia: Medical Malpractice – a Lawyer’s Safety
By 9-page letter opinion on April 1, 2019, Loudoun Circuit Court addressed pre-trial issues of “safety rules” and contributing causation in the medical malpractice case of Mangum v. Inova, No. CL-107497. In Mangum, the surgical patient suffered brain injury and resulting wrongful death, for which $10,000,000.00 in damages is sought.
The court in Mangum agreed generally with Plaintiff’s position on “safety rules” and related argument to the jury, id. at 4:
Accordingly, Plaintiff may properly use her argument to explain to the jury what the applicable standard of care is, why the applicable standard of care exists, and why Defendants had a duty to adhere to the standard of care. Clearly, patient safety is at the heart of medical malpractice law and the standard of care upon which it based. Indeed, the protection of the public from unreasonable risk is at the heart of civil negligence tort law in general. It can hardly be said, that the discussion of such matters during argument would unduly inflame the passion or prejudice of the jury. Likewise, it would be very difficult for the Court to determine at this point of the proceedings that, as a matter of law, Plaintiff may not refer in her arguments to ‘safety rules’ or to the ‘protection of the public’ or ‘community’ or to similar phrases that are not inconsistent with the applicable standard of care.
The Court also accepts Plaintiffs argument that the language [medical malpractice Defendants] seek to prevent Plaintiff from using during argument at trial – namely, ‘safety rules’ and the ‘protection of the public’ or ‘community’ – does not constitute prohibited ‘golden rule’ argument.
Id. at 5. Also, the Mangum court agreed with Plaintiff that “where, as here, the establishment of a contributing non-superseding cause of negligence . . . is, as a matter of law, not a defense for Defendants’ negligence, evidence of such contributing non-superseding cause of negligence is irrelevant, immaterial, and inadmissible”. Id. at 6.