Virginia: Medical Malpractice – a Lawyer’s Evidence

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On March 16, 2011, additional pre-trial motions were heard in Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County, Virginia, which is scheduled for jury trial in Yorktown beginning March 28, 2011. Marshall is a medical malpractice lawsuit seeking $12,000,000.00 for a victim who after ostensible routine out-patient surgery, suffered 3 surgical injuries at the hands of Defendants; underwent 5 repair surgeries; was hospitalized for over 8 months; almost died several times while an in-patient; incurred about $1,000,000.00 in medical bills; and is permanently, painfully, and debilitatingly disabled with 4-appendage neuropathy.

Among other things, Defendants continued their Motion to Quash Trial Subpoena to Mr. F. Jay Sweeney, IV to a subsequent pre-trial hearing. Plaintiff subpoenaed Mr. Sweeney as a trial witness to prove financial interest and bias of Sentara, since Plaintiff had no choice but to call so many of his Sentara healthcare providers as his witnesses: as Claim Manager for Sentara, Mr. Sweeney knows that Sentara’s $2,000,000.00 in medical malpractice liability insurance is at risk, thereby giving Senatra a significant financial stake in Marshall’s outcome.

Also, the Court denied Mr. Marshall his request that a spoliation instruction be given about destruction of evidence by Defendant, Dr. Moniz; which explicitly would have entitled the jury to infer negatively about the evidence destruction in deciding liability for medical malpractice. Nonetheless, Mr. Marshall still is entitled in Marshall to have his daughter testify that after his third repair surgery on October 24, 2006, Dr. Moniz drew a picture of Mr. Marshall’s internal anatomy to illustrate his understanding and mistake, but then threw away the diagram.

Additionally in Marshall, the Court granted in part Mr. Marshall’s Second Motion in Limine, precluding the non-treating neurologist hired by Defendant’s from speculating about causation of Mr. Marshall’s 4-appendage neuropathy in this medical malpractice case, since that retained expert admitted he did not know the cause. But the Defendants’ paid expert still is allowed to venture that Mr. Marshall’s neuropathy was not caused by his prolonged hospitalization and its incidents (as opined adamantly by his regular treating neurologist of 4 years) and instead supposedly is just a coincidence with the same.

Further, the Court in Marshall denied Defendant’s Motion to Exclude Reliance on Additional Materials. Thereby, Defendant’s inequitably had sought to preclude Mr. Marshall’s long-time treating neurologist from reviewing and testifying in rebuttal about the same additional patient records on which Defendants’ hired neurologist relied so heavily in the medical malpractice suit.