| Publication Date: | 2022 |
| Electronic Forms: | 15 |
| Available Formats: | Print (567 pages, softcover, 1 volume) |
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| Product #: | 862 |
Medical Malpractice Law in Virginia is a “how to” guide to assist lawyers in the factual complexities and legal intricacies of medical malpractice litigation. Authored by some of the most experienced and highly regarded medical malpractice attorneys, it is the only book focused exclusively on the topic in Virginia. Even the most seasoned medical malpractice attorneys will find it useful.
The information is presented in a “chronological” format that takes readers through the sequence of events that constitute a malpractice claim, offering the perspectives of both attorneys for plaintiffs and attorneys for defendants. It includes statutory and case law authority, as well as recommendations regarding the use of discovery, experts, and medical records.
The 2022 edition of Medical Malpractice in Virginia is authored by attorneys experienced in the law of medical malpractice in Virginia and covers the latest developments in the statutes and case law. This handbook provides comprehensive coverage of all stages of a claim from the initial client interview through trial, and provides insights into handling a medical malpractice case from both the plaintiff’s and defendant’s perspectives. In addition, many sample forms and checklists are included.
CHAPTER LIST
1.1 HISTORY AND PURPOSE
1.2 PROCEDURES UNDER THE MEDICAL MALPRACTICE
ACT
1.201 Scope of the Medical Malpractice Act
1.202 Pleadings
1.3 MEDICAL MALPRACTICE REVIEW PANELS
1.301 Procedural Requirements for Requesting a Panel
1.302 Designation of Panel and Judge
1.303 Miscellaneous Consequences of Requesting a Panel
1.304 Panel Members
1.305 Discovery
1.306 Request for Hearing
1.307 Notice Before Hearing
1.308 Evidence
1.309 Executive Session if No Ore Tenus Hearing Is Held
1.310 Judicial Authority at Hearing
1.311 Removal or Inspection of Record
1.312 Subpoenas
1.313 Conduct of an Ore Tenus Hearing
1.314 Due Date of Panel Opinion
1.315 Significance for Trial
1.316 Record
1.317 Costs
1.4 LIMITATION ON RECOVERY
1.5 STANDARD OF CARE AND EXPERT TESTIMONY
1.501 Necessity of Expert Testimony
1.502 Threshold for Qualification
1.503 Factfinder Determines Standard of Care
1.504 Examples
1.6 INCONSISTENCIES BETWEEN THE MEDICAL
MALPRACTICE RULES AND THE ACT
1.601 In General
1.602 Rescinding a Panel
1.603 Notification
1.604 Date for Convening the Panel
1.7 OTHER VIRGINIA STATUTES
1.701 Communications Between Physicians and Patients
1.702 Patient Records
1.703 Discoverability of Incident Reports
1.8 STATUTES OF LIMITATIONS
1.801 Personal Injury
1.802 Wrongful Death
1.803 Persons Under a Disability
1.804 Fraud
1.9 VIRGINIA AND FEDERAL TORT CLAIMS ACTS
1.901 Federal Tort Claims Act
1.902 Virginia Tort Claims Act
1.10 PERSONS EXEMPT FROM LIABILITY FOR MEDICAL
NEGLIGENCE
1.1001 Emergency Care
1.1002 Nonemergency Care
1.1003 Laboratory Tests
APPENDIX 1-1: RULES FOR PROCEEDINGS OF MEDICAL
MALPRACTICE REVIEW PANELS
APPENDIX 1-2: CHECKLIST FOR BRINGING AN ACTION UNDER
THE FEDERAL TORT CLAIMS ACT (FTCA)
APPENDIX 1-3: REQUEST FOR MEDICAL MALPRACTICE
REVIEW PANEL
CHAPTER 2: THEORIES OF RECOVERY AND DEFENSES
2.1 THEORIES OF RECOVERY
2.2 STANDARDS OF LIABILITY
2.3 STATUTE OF LIMITATIONS AND THE CONTINUING
TREATMENT EXCEPTION
2.301 Statute of Limitations in General
2.302 Extension of Statute of Limitations for Foreign
Objects, Fraud, Concealment, Intentional
Misrepresentation, and Negligent Failure to Diagnose
Tumor, Cancer, or Schwannoma
2.303 Minors
2.304 Continuing Treatment Exception
2.305 Survival and Wrongful Death Actions
2.306 Incapacitated Persons
2.4 DAMAGE AWARDS
2.401 Limits on Recovery
2.402 Punitive Damages
2.403 Prejudgment Interest
2.404 Wrongful Death and Survival Actions
2.405 Emotional Distress
2.406 Contributory Negligence
2.407 Contribution and Indemnity
2.5 IMMUNITY FOR HEALTH CARE PROVIDERS
2.501 Sovereign Immunity
2.502 Charitable Immunity
2.503 Good Samaritan Rule
2.504 Peer Review Activities
2.505 Health Care Providers Investigating Complaints of
Drug or Substance Abuse or Impairment of Health
Care Professionals
2.506 Laboratory Results and Examinations
2.6 VIRGINIA TORT CLAIMS ACT
2.601 Introduction
2.602 Exceptions
2.603 Procedural Requirements
2.604 Limits on Recovery
2.605 Implications for Pretrial Settlement
2.7 ASSAULT AND BATTERY
2.701 Introduction
2.702 Medical Malpractice Act Applies
2.703 Expert Testimony Not Required
2.704 Informed Consent Distinguished
2.8 INFORMED CONSENT
2.801 Overview
2.802 Disclosure of Risks
2.803 Causation
2.804 Exceptions
2.9 VICARIOUS LIABILITY AND AGENCY
2.901 Overview of the Master-Servant Relationship
2.902 Scope of Employment
2.903 Specific Cases
2.10 VIRGINIA BIRTH-RELATED NEUROLOGICAL INJURY
COMPENSATION ACT
2.1001 Introduction
2.1002 Birth-Related Neurological Injury Defined
2.1003 Act Is Exclusive Remedy
2.1004 “Participating” Providers
2.1005 No Cap on Recovery
2.1006 Statute of Limitations
2.1007 Miscellaneous
CHAPTER 3: INTERVIEWING THE CLIENT
3.1 INTRODUCTION
3.2 INITIAL INTERVIEW
3.201 In General
3.202 Initial Agreement
3.203 Client Questionnaire
3.204 Credibility of the Client
3.205 Credibility of the Claim
3.3 WHAT TO GET FROM THE CLIENT
3.301 Initial Interview
3.302 Medical Records
3.303 Potential Witnesses, Photographs, and Employment
Records
3.304 Monetary Considerations
3.4 WHAT TO TELL THE CLIENT
3.401 In General
3.402 Informed Consent
3.403 Reality Check
3.404 Strengths and Weaknesses
3.405 Procedure
3.406 Statute of Limitations
3.407 Written Opinions Before Service of Process
3.5 TURNING DOWN THE CASE
3.501 Certified Letter
3.502 Statute of Limitations
3.503 Retaining Files
3.6 ACTION UPON REFERRAL OF CASE
3.601 In General
3.602 Determine Case Status
3.603 Contact Client
3.604 Draft Initial Communication
3.7 ACTION BEFORE INITIAL MEETING
3.701 In General
3.702 Contacting Insurer
3.703 Contacting Plaintiff’s Attorney
3.704 Meeting with Insurer
3.705 Reviewing File
3.706 Reviewing Medical Records
3.707 Medical Research
3.8 INITIAL MEETING
3.801 In General
3.802 Purpose of Meeting
3.803 Participants
3.804 Discussion
3.805 Timetable
3.806 Conclusion
3.9 INSTITUTIONAL CLIENT
APPENDIX 3-1: FEE AGREEMENT
APPENDIX 3-2: INITIAL LETTER TO PLAINTIFF
APPENDIX 3-3: INITIAL LETTER TO DEFENDANT
CHAPTER 4: INVESTIGATING THE FACTUAL BACKGROUND
4.1 APPLYING DARWINIAN CONCEPTS TO CASE
SELECTION: “ONLY THE STRONGEST SURVIVE”
4.101 Defendants’ Advantages
4.102 Elements Necessary for Prima Facie Case
4.103 The “Difficult” Client
4.104 Elements of a Viable Claim
4.105 Active Participation of Client
4.2 INITIAL INVESTIGATION
4.201 In General
4.202 Medical Records
4.203 Interviews
4.204 Chronology and Time Lines
4.205 Identification of Defendant’s Practice Guidelines
4.206 Medline, FDA, and FOI Searches
4.207 Courthouse Check
4.208 Virginia Board of Medicine
4.3 MEDICAL RECORDS
4.301 Obtaining Medical Records
4.302 Release of Confidential Information
4.303 Subpoenas
4.304 Types of Medical Records That Can Be Obtained
4.305 Interpreting Medical Records
4.4 OTHER DOCUMENTS
4.401 Documents Relating to Incident
4.402 Other Sources
4.403 Patient Information Documents
4.404 Practitioner Information Documents
4.405 General Medical Information
4.5 TESTIMONIAL EVIDENCE
4.501 In General
4.502 Lay Witnesses
4.503 Expert Witnesses
4.504 Treating Health Care Personnel
APPENDIX 4-1: CHRONOLOGY EXAMPLES
APPENDIX 4-2: ABBREVIATIONS IN MEDICAL RECORDS
APPENDIX 4-3: EQUIVALENTS AND SYMBOLS
APPENDIX 4-4: ORGANIZATIONS PUBLISHING PRACTICE
GUIDELINES
5.1 INTRODUCTION
5.2 IS AN EXPERT NEEDED?
5.201 General Rule: Establishing a Prima Facie Case
5.202 Exceptions to the General Rule: When Expert
Witnesses May Not Be Needed
5.3 DETERMINING THE TYPES AND NUMBER OF EXPERTS
REQUIRED
5.301 Limitation on Number of Experts
5.302 Standard of Care Experts
5.303 Using Subsequent Treaters to Screen Cases
5.304 Qualifications for Standard of Care Experts
5.305 Causation and Damage Experts
5.4 FINDING EXPERTS
5.401 In General
5.402 Academicians
5.403 Medical Literature and Medline
5.404 Professional Locating Services
5.405 Referral From Attorneys and Legal Publications
5.406 Treating Physicians as Experts
5.5 DETERMINING WHICH EXPERTS WILL BE MOST
EFFECTIVE
5.501 In General
5.502 Credibility
5.503 Ability to Testify
5.504 Tailoring Experts to a Particular Case
5.505 Using Defense Experts
5.6 EXPERT REVIEW AND PREPARATION
5.601 In General
5.602 Initial Contact and Selection
5.603 Preparing for the Expert’s Review
5.7 CERTIFICATION REQUIREMENT
5.701 In General
5.702 Content of Certification
5.703 Certification Form
5.704 Discoverability of Certifying Expert
5.8 NUMBER OF EXPERTS TO BE RETAINED
5.801 Initial Review
5.802 Litigation
5.9 DOCUMENTATION OF EXPERT OPINIONS
5.901 Internal Memorandum
5.902 The Expert Designation
5.903 Provide Copy of Designation to All Experts
5.10 PREPARING EXPERTS FOR DEPOSITION AND TRIAL
5.1001 Preparing for Deposition
5.1002 Preparing for Trial
5.1003 Use of Medical Treatises, Periodicals, or Pamphlets at
Trial
5.1004 Use of Expert’s Own Practices as Evidence of the
Standard of Care
5.11 DISQUALIFICATION OF EXPERTS
APPENDIX 5-1: SAMPLE LETTER REQUESTING
CERTIFICATION
APPENDIX 5-2: SAMPLE LETTER VERIFYING CERTIFICATION
APPENDIX 5-3: CHECKLIST FOR EVALUATING POTENTIAL
EXPERTS
APPENDIX 5-4: CERTIFICATION THAT EXPERT’S OPINION
OBTAINED
APPENDIX 5-5: SAMPLE FORM FOR EXPERT DESIGNATION
APPENDIX 5-6: INSTRUCTIONS FOR EXPERT WITNESSES AT
DEPOSITION
6.1 INTRODUCTION
6.2 SCOPE OF DISCOVERY
6.201 In General
6.202 “Not Privileged”
6.203 “Relevant to the Subject Matter Involved in the
Pending Action”
6.204 “Reasonably Calculated to Lead to the Discovery of
Admissible Evidence”
6.3 TYPES OF WRITTEN DISCOVERY
6.301 Interrogatories
6.302 Requests for Production of Documents
6.303 Subpoena Duces Tecum
6.304 Alternatives to Subpoena Duces Tecum
6.305 Requests for Admission
6.4 OBJECTIONS TO WRITTEN DISCOVERY
6.401 Grounds in General
6.402 Undue Burden
6.403 Materials Prepared in Anticipation of Litigation
6.404 Work Product Doctrine
6.405 Privilege Under Section 8.01-581.17
6.406 Motion to Quash Subpoena Duces Tecum
6.407 Improper Objections
6.5 SUPPLEMENTATION OF DISCOVERY RESPONSES
6.501 Mandatory Supplementation
6.502 Other Supplementation
6.6 PROTECTIVE ORDERS
6.601 Grounds for Motion
6.602 Forms of Relief
6.603 Expenses of Motion
6.604 Case Law
6.7 REMEDIES FOR FAILURE TO MAKE WRITTEN
DISCOVERY
6.701 Motion to Compel
6.702 Sanctions for Failure to Comply with Discovery Order
6.703 Sanctions for Failure to Respond to Written Discovery
6.704 Section 8.01-271.1 and Rule 1:4(a)
6.8 PRETRIAL ORDERS AND WRITTEN DISCOVERY
6.801 Agreed Orders
6.802 Uniform Pretrial Scheduling Order
6.9 WRITTEN DISCOVERY IN FEDERAL COURT
6.901 In General
6.902 Federal and Virginia Rules Compared
6.903 Eastern District of Virginia
6.904 Western District of Virginia
6.905 Pretrial Orders
6.10 IMPORTANT SUBJECTS OF WRITTEN DISCOVERY
6.1001 Plaintiff’s Perspective
6.1002 Defendant’s Perspective
6.1003 Subjects to Be Discovered by Both Parties
APPENDIX 6-1 MEDICAL RECORDS RELEASE AUTHORIZATION
APPENDIX 6-2: ORDER
APPENDIX 6-3: SUBPOENA
APPENDIX 6-4: PLAINTIFF’S INTERROGATORIES AND
REQUEST FOR PRODUCTION OF DOCUMENTS
APPENDIX 6-5: DEFENDANT’S INITIAL INTERROGATORIES TO
PLAINTIFF
APPENDIX 6-6: DEFENDANT’S FIRST REQUEST FOR
PRODUCTION TO PLAINTIFF
APPENDIX 6-7: WRITTEN DISCOVERY CHECKLISTS
7.1 OVERVIEW OF VIRGINIA LAW CONCERNING
DEPOSITIONS
7.101 Types of Depositions and General Methods of
Conducting Them
7.102 Timing, Number, Length, and Order of Depositions
7.103 Location of Deposition
7.104 Unavailability of Counsel for Deposition
7.105 Audiovisual and Other Means of Recording
7.106 Right to Read and Sign Witness Deposition
7.107 Compensation of Deposition Witnesses
7.108 Use of Depositions in Court Proceedings
7.109 Leading Questions
7.110 Objections: Timing and Waiver
7.111 Instructing Witness Not to Answer
7.2 SHOULD COUNSEL DEPOSE ANY PARTIES OR
WITNESSES?
7.3 PREPARING TO DEPOSE THE DEFENDANT
7.301 Initial Research and Planning
7.302 Obtaining and Reviewing Medical Records
7.303 Researching the Defendant
7.304 Understanding Medical Issues
7.305 Audiovisual Recording of Deposition
7.4 PREPARING TO DEPOSE WITNESSES
7.5 PREPARING THE PLAINTIFF FOR DEPOSITION
7.501 Plaintiff’s Weaknesses and Strengths
7.502 Plaintiff’s Criminal History
7.503 Social Media Communications
7.504 Contributory Negligence
7.505 Failure to Mitigate Damages
7.6 PREPARING PLAINTIFF’S EXPERT FOR DEPOSITION
7.601 Need for Expert Testimony
7.602 Experts on Standard of Care and “Negligence”
7.603 Experts on Proximate Causation
7.604 Experts and Credibility Testimony
7.605 Non-Medical Doctor Experts
7.606 “Specialized Knowledge” Versus Common Experience
7.607 Exclusion of Expert Based on Deposition Testimony
7.608 Opinion or Conclusion Testimony
7.609 Medical Literature
7.7 DEPOSITION GUIDELINES
7.701 Broad Scope of Discovery Requests
7.702 General Areas of Inquiry for Deposing the Defendant
7.703 General Areas of Inquiry for Deposing Opponent’s
Expert Witnesses
7.8 SUMMARY
7.9 PRELIMINARY MATTERS
7.901 Reviewing and Analyzing the File
7.902 Meeting with the Client
7.903 Meeting with the Experts
7.904 Reviewing Applicable Law
7.905 Informal Interview as Alternative to Deposition
7.906 Timing of Discovery
7.10 TAKING THE DEPOSITION OF THE PLAINTIFF OR
OTHER FACT WITNESS
7.1001 Preparing for Deposition
7.1002 The Deposition Itself
7.11 DEFENDING A DEFENDANT’S DEPOSITION
7.1101 In General
7.1102 Reviewing the File
7.1103 Preparing the Defendant for Deposition
7.1104 Protecting the Defendant During the Deposition
7.1105 Incident Reports
7.1106 Defendant’s Policies and Procedures
7.1107 Dual Role of Defendant
7.12 TAKING AN EXPERT’S DEPOSITION
7.1201 Before the Deposition
7.1202 During the Deposition
7.13 DEFENDING A DEFENSE EXPERT’S DEPOSITION
7.1301 Timing of Deposition
7.1302 Preparing the Expert Deponent
7.1303 Protecting the Expert During the Deposition
7.1304 Discovery of Expert’s Knowledge of Attorney Work
Product
APPENDIX 7-1: SAMPLE MEDICAL CHART AND TIME LINE
CHAPTER 8: NEGOTIATION AND SETTLEMENT
8.1 GENERAL CONSIDERATIONS
8.101 Plaintiff’s Perspective
8.102 Defendant’s Perspective
8.2 STRATEGIES AND TACTICS
8.201 Plaintiff’s Perspective
8.202 Defendant’s Perspective
8.3 MEDIATION AND ARBITRATION
8.301 Mediation
8.302 Arbitration
8.4 SPECIAL CONSIDERATIONS
8.401 Settlements for Infants
8.402 Wrongful Death Claims
8.403 Structured Settlements
8.404 Special Needs Trusts for Disabled Plaintiffs
8.405 Statutory Liens
8.406 National Practitioner Data Bank
8.407 Statutory Cap
8.408 Claims Against the Commonwealth
APPENDIX 8-1: ARBITRATION AGREEMENT
9.1 STRATEGIC PLANNING
9.101 In General
9.102 Threshold Dilemmas for the Plaintiff
9.103 Overcoming the Dilemmas
9.2 VOIR DIRE
9.201 In General
9.202 Goals
9.203 Areas of Inquiry
9.204 Avoiding Mention of Insurance
9.3 OPENING STATEMENT
9.301 Goals
9.302 Exploiting the Case’s Drama
9.303 Using Visual Aids
9.4 WITNESSES AND OTHER PROOF
9.401 Deciding Which Witnesses to Call
9.402 Alternatives to Calling a Witness
9.403 Depositions
9.404 Defendant as Adverse Witness
9.5 DIRECT EXAMINATION OF STANDARD OF CARE EXPERT
9.501 Qualification
9.502 Statutory Standard of Care
9.503 Custom Does Not Equal Standard of Care
9.504 Presumption That Expert Is Qualified
9.505 Using the Presumption
9.506 Checklist for Out-of-State Expert
9.507 Using Experts from a Related Field of Medicine
9.508 “Active Clinical Practice” Requirement
9.509 Using Other Testimony to Support Qualification
9.510 Using a Frequent Testifier
9.6 PROOF OF CAUSATION
9.601 In General
9.602 Other Possible Causes
9.603 Loss of Possibility of Survival
9.7 MEDICAL RECORDS
9.701 Business Record
9.702 Other Means of Introducing Medical Records
9.703 Use of Records During Trial
9.8 MEDICAL LITERATURE
9.801 In General
9.802 Strategy
9.9 DEMONSTRATIVE EVIDENCE
9.901 Uses
9.902 Sources
9.903 Computers
9.904 Admissibility
9.10 CROSS-EXAMINATION OF DEFENSE EXPERTS
9.1001 In General
9.1002 Qualifications
9.1003 Bias
9.1004 Basis of Opinion
9.1005 The Opinion Itself
9.11 OTHER EVIDENTIARY ISSUES
9.1101 Negligence of Nonparties
9.1102 Habit Evidence
9.1103 Dead Man’s Statute
9.1104 Evidence of Patient’s Awareness of Risk
9.1105 Background of Defendant
9.1106 Complication Rates
9.12 JURY INSTRUCTIONS
9.1201 In General
9.1202 Supreme Court Scrutiny
9.1203 Standard of Care
9.1204 Proximate Cause
9.1205 Concurring and Supervening Causes
9.1206 Other Possible Causes
9.1207 Foreseeability of the Injury
9.13 CLOSING ARGUMENT
9.1301 Planning
9.1302 Use of Instructions
9.1303 Counsel Should Not Get Ahead of the Jury
Emotionally
9.1304 Discussing Money
9.14 STRATEGIC PLANNING
9.1401 In General
9.1402 Threshold Issues for the Defendant
9.15 VOIR DIRE
9.1501 Preparation of Voir Dire
9.1502 Jury Selection
9.16 OPENING STATEMENT
9.1601 Introduction
9.1602 Presentation
9.1603 Specifics
9.17 PLAINTIFF’S CASE
9.1701 Defendant Called as an Adverse Witness:
Examination by Defense
9.1702 Objections, Proffers, and Preserving Issues for Appeal
9.18 CROSS-EXAMINATION OF THE PLAINTIFF’S FACT
WITNESSES
9.1801 The Plaintiff
9.1802 Family Members
9.19 CROSS-EXAMINATION OF THE PLAINTIFF’S EXPERTS
9.1901 Standard of Care and Causation
9.1902 Damages
9.20 MOTIONS TO STRIKE
9.21 DEFENDANT’S CASE
9.2101 Order of Witnesses Generally
9.2102 Order of Defendant’s Appearance as Witness
9.2103 Adjusting the Witness Schedule
9.22 DIRECT EXAMINATION OF THE DEFENSE EXPERT
9.2201 Qualifications
9.2202 Bias
9.2203 Medical Literature
9.2204 Theory of the Case
9.23 EXAMINATION OF THE DEFENDANT
9.24 JURY INSTRUCTIONS
9.25 CLOSING ARGUMENT
9.2501 Planning
9.2502 Use of Instructions
9.2503 Role of Emotion
9.2504 Discussing Money
TABLE OF AUTHORITIES
INDEX
EDITOR:
AUTHORS:
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