Virginia: Medical Malpractice – a Lawyer’s Admissions

Virginia: Medical Malpractice – a Lawyer’s Admissions

Court hearing in the medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County and Town of Poquoson, Virginia, showed there is no dispute that: (1) Defendants never charged Plaintiff anything for the 10/5/06 repair surgery, despite charging him for the other 4 surgeries before and after it [“No-Charge”]; and (2) Defendants wrote off as “bad debt” $1,963.53 of bills for the other 4 surgeries [Write-offs”]. That information comes from Defendants’ office computer and is summarized by Plaintiff. See, Defendants’ Charges/No Charges/Write-offs Composite.

First, Defendants’ counsel previously represented to the Court at prior hearing in Marshall that the 10/5/06 no-charge supposedly was “bundling of services” by Defendants, despite none of the other 4 surgeries having been “bundled” with one another. Moreover, the corporate Defendants’ designated representative, Ms. Schwartzlow, had testified she conferred with and received authorization from Dr. Moniz about Write-Offs, prior to any medical malpractice suit being filed. See, Williamsburg Surgery (by Schwartzlow) Deposition at 63-66.

Second, the two cases cited by Defendants are distinguishable on their facts. Both involve “offers” of compromise or remedial assistance in cases not involving medical malpractice. See, Lewis v. Kim, 46 Va. Cir. 227 (Alexandria Jul. 22, 1998) and Novick v. Dillon, 44 Va. Cir. 111 (Richmond Nov. 24, 1997); But in Marshall, the Write-Offs were unilateral conduct by Defendants.

Third, contrary to Defendants’ representation in Marshall, Richmond Circuit Court actually upholds the admissibility of write-offs, where as here, they are unilateral by Defendants versus “offers” to Plaintiff. In another medical malpractice action of Mr. Waterman, Schuster v. Posner, No. LA-134-3 (Richmond Mar. 24, 1997), Judge Markow ruled that Defendants’ medical bill write-off was admissible against interest, that Defendants were free to try explaining it away, and that “it’s up to the jury to decide who to believe”. See, 3/24/97 Schuster v. Posner Transcript at 75. 11-96.20.

Fourth, the day before hearing in Marshall Defendants inconsistently filed to admit their Write-Offs in evidence to reduce Plaintiff’s medical bills at their medical malpractice trial beginning on March 28, 2011. See, Defendants’ Memorandum in Opposition to Plaintiff’s Second Motion in Limine regarding Write-Offs. But it is hornbook law that Defendants cannot approbate and reprobate.