by KPMLAW | Aug 11, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Danny Royce, Esq. Edited by Bill Pfund, Esq. Contributory negligence is a powerful affirmative defense in the Commonwealth of Virginia. However, there is an exception to contributory negligence embodied in the Last Clear Chance doctrine. There are two versions of the doctrine. The Court has recognized two types of plaintiffs eligible for the doctrine: the helpless plaintiff and the inattentive plaintiff. The helpless plaintiff is embodied in the Model Jury Instruction as follows: “Contributory negligence by the plaintiff will not bar his recovery if you find by the greater weight of the evidence that: (1) the plaintiff negligently placed himself in a situation of peril from which he was physically unable to remove himself; and (2) the defendant saw, or should have seen the plaintiff and realized, or should have realized, his peril; and (3) thereafter, the defendant could have avoided the accident by using ordinary care.” The second version of the doctrine applies when the plaintiff has placed him/herself in peril and is unware of his/her peril (the inattentive plaintiff). This is embodied in the alternate Model Jury Instruction as follows (see Id. at 238-39, 89 S.E.2d at 53): “Contributory negligence by the plaintiff will not bar his recovery if you find by the greater weight of the evidence that: (1) the plaintiff negligently placed himself in a situation of peril; and (2) he was physically able to remove himself from the situation but was unaware of his peril; and (3) the defendant actually saw the plaintiff and realized, or should have realized, his peril; and (4) thereafter, the defendant could have avoided...
by KPMLAW | Jul 17, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Jessica Gorman, Esq. Edited by Rachel Riordan, Esq. Under the Virginia Workers’ Compensation Act, § 65.2-603, an Employer is required to provide all necessary medical attention to an injured worker as a result of a compensable accident. But to what extent is the Employer responsible for payment of costly prescription medications when an injured worker demands brand name medications over a generic medication and what can we do to limit the costs of those medications? The purpose of the Workers’ Compensation Act is to provide an injured worker with free treatment and to restore the injured worker’s good health so that the injured worker can return to gainful employment as soon as possible. Richmond Memorial Hospital v. Allen, 3 Va. App. 314, 349 S.E.2d 419 (1986). As a part of an injured workers’ treatment, most often prescription medications are prescribed for pain control or other symptoms of their injury. § 65.2-603.1(B) provides that a pharmacist shall dispense a prescription using the generic version of the medication where available unless: unless (1) a generically equivalent drug does not exist or the usual and customary retail price for it is higher than that of the prescribed name-brand drug; or (2) the prescriber specifies on the prescription “brand medically necessary” based upon a medical reason why the injured worker should not have the generic equivalent. A physician may provide verbal instructions to a pharmacy requiring that a medication is brand specific – it does not need to be in writing. So what does this mean for your claim? Rather than waiting to try to minimize the cost of medications and...
by KPMLAW | Jul 17, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by W. Barry Montgomery, Esq. Edited by Bill Pfund, Esq. When asked by a client whether or not there is any way to stop a plaintiff filing frivolous suits, experienced defense counsel can usually only offer a few wholly unsatisfying responses. The short answer of “no” is usually the correct one, though in some circumstances counsel might advise the client that sanctions could be available if it is proven that plaintiff filed suit without any factual or legal basis. Of course litigating and proving the grounds for a sanctions award can be as costly as defending a frivolous suit on the merits, without any guarantee of success. In short, the available options for responding to frivolous suits are often expensive and frustrating for the client. Recently, though, the Virginia Supreme Court itself felt the burden of frivolous filings and told a habitual plaintiff enough is enough. In the case of Adkins v. CP/IPERS Arlington Hotel LLC, 2017 Va. Unpub. LEXIS 15 (June 8, 2017), the Virginia Supreme Court considered imposing a pre-filing injunction against a plaintiff who, over the course of a decade, filed numerous lawsuits which were dismissed at the trial court level and then appealed to the Virginia Supreme Court. The Court never granted any of plaintiff’s appeals, all of which were found to be meritless. Looking at the Court’s docket since 2009, plaintiff had filed 27 appeals, which “unduly burdened opposing litigants and interfered with the administration of justice.” Id. at 9. According to the Court, plaintiff “subjected dozens of innocent individuals and entities to the cost of defending meritless claims both in the trial...
by KPMLAW | Jul 17, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Beth Gould, Esq. Edited by Bill Pfund, Esq. The Virginia General Assembly convened its 2017 session on January 11, 2017 and adjourned sine die on February 25, 2017. In total, both houses of the General Assembly passed 885 bills and sent them along to Governor McAuliffe for signature or veto. Governor McAuliffe vetoed only 49 bills, while the remainder became law, effective either July 1, 2017 or January 1, 2018. What follows is a discussion of some of the various bills and amendments which go into effect July 1, 2017 which KPM Law believes will be of interest and consequence to our readers. Should you have any questions regarding these bills and amendments, or questions regarding any bill or amendment not discussed here, please do not hesitate to contact us. Motor Vehicle Safety Inspection; Superintendent Shall Provide Inspection Information Upon Request: Virginia Code § 46.2-1163 was amended to include a paragraph directing the Superintendent of the Department of State Police to provide state inspection information to “an individual or corporate entity or such entity’s agent” upon written request. The information provided will not include personal information, but information relating to vehicles’ motor vehicle safety inspection. A reasonable fee may be charged for the provision of this information. Such information could be useful to insurers investigating personal injury and property damage claims, assessing potential fraud or misrepresentation by insurance applicants, or performing other various underwriting functions. Va. Code § 46.2-1163; HB 2269. Medical Records or Papers; Fee Limits, Penalty for Failure to Provide: Virginia Code § 8.01-413(B) was amended to extend the time limit for the provision of...
by KPMLAW | Jul 17, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by JH Revere, Esq. Edited by Bill Pfund, Esq. If you have worked in bodily injury claims for any period of time, you are no doubt aware there are two primary means by which the defense attempts to rebut a plaintiff’s medical claims prior to or at trial. They are, of course, the Independent Medical Examination (IME) and the Peer Review. Let’s start by looking at the framework for expert testimony in Virginia. Virginia Code § 8.01-401.1 addresses expert testimony at trial. It states in part: In any civil action, any expert witness may give testimony and render an opinion or draw inferences from facts, circumstances or data made known to or perceived by such witness at or before the hearing or trial during which he is called upon to testify. The facts, circumstances or data relied upon by such witness in forming an opinion or drawing inferences, if of a type normally relied upon by others in the particular field of expertise in forming opinions and drawing inferences, need not be admissible in evidence. The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. The statute clearly applies to both the peer review and the independent medical exam. The independent medical exam is further subject to additional criteria. Rule 4:10 of the Rules of the Supreme Court of Virginia states in part: (a) Order for Examination. –When the mental or physical...
