Virginia: Patient Fall – a Lawyer’s Recovery

Virginia: Patient Fall – a Lawyer’s Recovery

Eason v. Sentara Hospitals [and] Sentara Careplex Hospital, No. 12000470 is an alleged wrongful death or survival case pending in Circuit Court for the City of Hampton, Virginia. On January 19, 2013, Plaintiff obtained a written expert opinion that both Sentara Defendants deviated from the nursing standard of care.

On April 23, 2013, Eason v. Sentara  Defendants, Sentara Hospitals’ and Sentara Careplex Hospital, served Motion to Reduce Ad Damnum, trying to reduce Plaintiff’s patient fall suit from $10,350,000.00 to only $2,000,000.00 summarily. On May 2, 2013, Plaintiff served her Memorandum in Opposition, arguing Sentara Defendants’ dilatory Motion is without merit – indeed, conflicts with a plain reading of the applicable statute, plus two Virginia Supreme Court opinions.

Va. Code Ann. §8.01-581.1 controls and simply provides expressly: “In any verdict returned against a healthcare provider in an action for medical malpractice…, the total amount recoverable…shall not exceed the cap.” (emphasis added) Since §8.01-581.1 is in derogation of Virginia common law, hornbook law holds that it must be construed strictly, i.e., narrowly against its beneficiary Defendants, to apply only to “verdict” as stated.

§8.01-581.1 explicitly limits only the “amount recoverable,” not the amount the jury can award. §8.01-581.1 does not “cap” any ad damnum: if the General Assembly wanted to achieve that result in medical malpractice cases such as Eason v. Sentara, then it easily could and should have legislated so expressly.

Va. Code Ann. §8.01-379.1 guarantees Plaintiff the right to plead and argue above the cap, including in wrongful death suits like Eason v. Sentara. §8.01-581.1 does not purport to abrogate §8.01-379.1, and must be harmonized with it.

Circuit Courts have denied motions like that of Sentara Defendants in Eason v. Sentara. See, e.g., Exhibit 1, Marshall v. Moniz, No. CL08-2018, Order at 2 (York Mar. 28, 2011); Wright v. Eli Lilly & Co., 65 Va. Cir. 484, 499-504 (Portsmouth Sep. 21, 2004)(citing Morris v. Commonwealth, 46 Va. Cir 216, 223 (Albemarle Jul. 17, 1998)(Peatross, J.)); Benson v. Lowe, 44 Va. Cir. 85, 86-87 (Norfolk Nov. 25, 1997)(Jacobson, J.); Bennett v. Riverside, 43 Va. Cir. 13, 14 (Newport News Mar. 17, 1997)(Frank, J.); Dell v. French, 38 Va. Cir. 91, 100 (Fairfax Aug 2, 1995)(Roush, J.); Johnson v. Commonwealth, 51 Va. Cir. 311, 318 (Stafford Feb. 9, 2000)(Haley, J.). Correspondingly, Peninsula Circuit Courts have reduced jury verdicts in excess of the cap, including notably in 2 other patient fall trials of Mr. Waterman. See, e.g., Denton v. Chu, No. CL12-94 (Hampton Feb. 2013); Final Judgment Order, Burrell v. Riverside Hosp., Inc., No. CL1101633F-15 (Newport News Jan. 29, 2013)(patient fall); and Amended Judgment, Johnson v. Riverside Hosp., Inc., No. CL00-29638-DP c/w CL01-30571-DP (Newport News Nov. 30, 2005)(patient fall).

“Hence the appropriate procedure is to submit the case to the jury without informing the jury of the limit on recovery. Should the jury return a verdict in excess of the Medical Malpractice Cap, the trial judge will reduce the award to the amount of the Medical Malpractice Cap.” Wright, supra, 65 Va. Cir. at 503 (quoting Dell).

More fundamentally – dispositively in Eason v. Sentara –  the Virginia Supreme Court opinion upholding the constitutionality of the medical malpractice cap in 1989 emphasizes that verdict, not ad damnum, should be reduced:

The limitation on medical malpractice recoveries contained in Code 8.01-581.15 does nothing more than establish the outer limits of a remedy provided by the General Assembly. A remedy is a matter of law, not a matter of fact. A trial court applies the remedy’s limitation only after the jury has fulfilled its fact-finding function.

Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 96 (1989)(italics in original)(underlining added) (citations omitted). Moreover, this language of the Virginia Supreme Court in Etheridge was reiterated by it a decade later in Supinger v. Stakes, 255 Va. 198, 205 (1998).
Defendants nonetheless try to cap Plaintiff’s ad damnum in Eason v. Sentara at $2,000,000.00 artificially, toward inappropriately trying to make that the jury’s chopping block. Doubtless Sentara Defendants are sensitive to this year’s record $25,000,000.00+ medical malpractice jury verdict in Denton, supra, in Hampton and to undersigned counsel’s $3,500,000.00 patient fall verdict in Burrell, supra, in Newport News last year; yet those very cases evince verdict, not ad damnum, is to be reduced.

With the ad damnum reduced to only $2,000,000.00, Plaintiff in the Eason v. Sentara wrongful death/survival case will not be able to argue adequate monetary value to her substantial general damages claim for jury consideration, which she avers is an abridgment of her Constitutional right to jury trial and other undue prejudice. Sentara Defendants’ Motion is not well-grounded in fact or in law.

Unbeknownst to patients and the general public, but well-known to Sentara Defendants and its nurses for decades, patient falls are a leading cause of injury in hospitals. Putting up all four bedrails of a patient – as in Eason v. Sentara – is a disfavored patient restraint known to cause and/or aggravate personal injury, particularly when not used in conjunction with a sitter, posey vest or wrist restraints.

THE VIRGINIA STATE BAR REQUIRES ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN’S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.