Virginia: Medical Malpractice – a Lawyer’s Hearing

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On February 28, 2011, pre-trial Motions were heard in the medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in Circuit Court for the County of York and Town of Poquoson, Virginia. The patient claims $12,000,000.00 in damages arising from a supposedly routine out-patient incisional hernia repair at Sentara Williamsburg Community Hospital allegedly leading to 5 surgeries in 30 days, hospitalization for 8 months, several near-death experiences, approximately $1,000,000.00 in medical expenses, and permanent painful disabling neuropathy.

The Court granted Plaintiff’s Third Motion for Entry of Order in Marshall, memorializing its rulings at hearing on February 14, 2011. Sentara Hospitals and Sentara Williamsburg Community Hospital (collectively “Sentara”) unsuccessfully sought entry of a short Order that did not cover all facets of the medical malpractice “privilege” issue decided previously, versus the comprehensive Order drafted by Mr. Waterman that was factually correct.

The Court also granted Plaintiff’s Motion for Order for Original Records in Marshall, which required Sentara to produce the patient’s original records at the Courthouse in Yorktown for the medical malpractice jury trial beginning on March 28, 2011. Sentara had opposed the patient, even though Defendants admitted that Sentara providing only copies might preclude the patient from being able to bear his burden of proof due to lack of dates on the copies.

Additionally, the Marshall Court required Sentara promptly to identify and provide Plaintiff last known contact information for all requested past and present staff of Sentara. Without timely production by Sentara, the patient may not have been able to subpoena the necessary witnesses to the 2-week medical malpractice trial.

At hearing, Defendants withdrew a doctor who had been named by them as a medical malpractice expert, but who never submitted to discovery deposition by Plaintiff. Plaintiff agreed that one of his key wound care nurses from Riverside would not give opinions in Marshall about dexterity problems that his post-hospitalization neuropathy had caused him.