05 May Virginia: Medical Malpractice – a Lawyer’s Simulation
Medical malpractice defense counsel have sought to rely on Muhammad v. Commonwealth, 269 Va. 451, 518-519 (2005), the so-called “Capital beltway sniper” case, as authority for introducing self-serving videotape or computer “simulations” created for their own civil cases. But Muhammad obviously is a singular criminal prosecution for 16 serial murders, which in 6 years never has been followed or even cited for the proposition raised by defendants.
In addition to Muhammad being a truly extraordinary case, its opinion discloses at least two distinctions. First, the Muhammad videotape simulation was predicated on independent eyewitness testimony of what occurred; while in most medical malpractice cases, defendants’ simulation less reliably (more biasedly) will be attested by defendants themselves and/or their experts.
Second, in Muhammad the jury got to scrutinize the real thing first hand “by an actual inspection of the trunk,” not simply to see the videotape stimulation. Conversely, in most medical malpractice cases, the jury will not get an actual corroborating inspection of plaintiff’s body, condition and/or process; and instead only will have the defense’s vivid unilateral re-creation imprinted in their psyche.
Besides those significant legal distinctions between the two cases, realistically most defendants cannot duplicate plaintiffs’ idiosyncratic physical conditions medically as of the pertinent times. Hence courts summarily should exclude defense videotape simulations as was done in the medical malpractice suit of Norman v. Williams, No. CL07-4554 (Norfolk May 19, 2009), despite the defense offering to redact video and to abandon audio in unsuccessful last-ditch attempts to salvage simulation.
Finally, less than 2 months after handing down Muhammad, the Virginia Supreme Court found the trial court’s allowance of a defense videotape in a medical malpractice case to be erroneous. Holley v. Pambianco, 270 Va. 180, 185-186 (2005). Thus, despite Muhammad, videotape evidence remains a “hot button” topic in Virginia, the admission of which may constitute reversible error.