07 Nov Virginia: Medical Malpractice – a Lawyer’s Verdict
On May 10, 2013, the Virginia Supreme Court issued an unpublished 6-page opinion in Westermann v. Bermisa, et al., Record Nos. 121004 & 121005. It remanded for entry of a $3,500,000.00 final judgment in favor of Plaintiff on a wrongful death lawsuit. Id. at 5.
The jury in Westermann found for Plaintiff against the Defendant medical practice on its verdict form, but left blank any finding re the Defendant medical doctor (who was employed by the practice). Id.at 3. Post-trial, the judge set aside the medical malpractice verdict, (mis)construing the jury’s silence as the jury finding the individual Defendant not liable, and holding it legally inconsistent to find against the master but not the servant under the doctrine of respondent superior.Id. at 3-4.
Noting that jury instructions given without objection are the law of the case, id at 4; the Virginia Supreme Court observed the jury was instructed that to recover against the practice, the Plaintiff had to prove medical malpractice by the individual. Hence the jury expressly finding against the practice while remaining “silent” about the doctor – as distinct from expressly finding in favor of the doctor – impliedly found against the doctor and thereby did not exonerate the practice.Id. at 5.
In Mr. Waterman’s medical malpractice trial in 2012, Burrell v. Riverside Hosp., Inc., No. CL1101633F-15, a Newport News jury found against the Defendant employer, but found in favor of the only Defendant employee. Defendants moved to set aside his $3,500,000.00 verdict, similarly claiming irreconcilable inconsistency, but Judge Fisher held that the jury instructions were the law of the case and permitted the jury to find employer liability based on other nurses who Plaintiff’s experts opined were negligent even though they were not named as Defendants.
THE VIRGINIA STATE BAR REQUIRES ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN’S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.