18 Mar Virginia: Patient Fall – a Lawyer’s VHS
On March 18, 2016, the Court heard dilatory defense pleadings and part of Plaintiff’s discovery motion in the medical malpractice case of Patrick Lee Cherrie, Administrator of the Estate of Gerda A. Harvey, Deceased, v. Virginia Health Services, Inc., d/b/a Walter Reed Convalescent & Rehabilitation Center, Long Term Care of Tidewater, P.C., and Raina Winfrey, M.D., Case No.: CL14-340, in Circuit Court for Gloucester, Virginia. Plaintiff is suing for wrongful death, alleging that the patient’s fatal brain injury was caused by the admitted head injury she sustained after falling for the third time in five days at the nursing home with no additional preventive fall intervention by Defendants, despite patient being a known high fall risk and her family requesting such precautionary safety interventions.
The Court in Cherrie rejected the Motion to Dismiss and Plea in Bar of Virginia Health Services, Inc., finding under Va. S. Ct. R. 1:6 that the medical malpractice wrongful death action for $4,450,000.00 in Gloucester was not the same transaction, occurrence or condition as the one subject of consolidated declaratory judgment action filed by Plaintiff and the estate representative of another deceased 3-fall patient of Virginia Health Services, Inc. in Newport News and on appeal before the Virginia Supreme Court. Also, the Court granted Plaintiff’s Motion to Compel against Defendant nursing facility as to all policies, procedures, protocols, standards and guidelines requested, finding that the same were discoverable, i.e., were not privileged and were relevant and may lead to the discovery of admissible evidence.
Additionally, in the Cherrie patient fall matter the Court overruled the Demurrers and denied the Motions for Bill of Particulars of Dr. Raina Winfrey and Long Term Care of Tidewater, P.C. Specifically, the Court ruled that the claimed “catch-all” allegations of Plaintiff merely were gratuitous statements and Defendants were on notice based on the Complaint as a whole; that Plaintiff met his burden on pleading punitive damages claims against Defendants; and that the Complaint gave sufficient notice on the issue of vicarious liability; and that Plaintiff was not required to elect between his alternative claims for wrongful death and survival action at this time.
At the Cherrie hearing, Dr. Raina Winfrey withdrew her Demurrer and Motion for Bill of Particulars regarding Plaintiff’s ad damnum being in excess of the statutory cap on damages in Virginia’s Medical Malpractice Act. Finally, Virginia Health Services, Inc. was required to confer with Plaintiff about its discovery objections, answers and responses within 30 days of hearing.