by KPMLAW | Oct 17, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Brian Snyder, Esq. Edited by Bill Pfund, Esq. Recently, Steven Brill published “America’s Bitter Pill” an acclaimed book on how the Affordable Care Act, or Obamacare, was written, how it is being implemented, and, most important, how it is changing—and failing to change—the rampant abuses in the healthcare industry. Many of the issues outlined in the book were first identified in his trailblazing Time magazine cover story “Bitter Pill – Why Medical Bills Are Killing Us”, which addresses a number issues about the way medical providers bill patients and common abuses in the industry. These issues become relevant to personal injury litigation because “on the defense side, it is commonplace for medicals to be the foundation for the evaluation of worst case exposure of a claim, and of a reasonable settlement range. Therefore if the medical bills are grossly inflated, the amount paid on the claim will be too. Its common knowledge that health care providers charge extra to cover the cost of care provided to the uninsured, but Brill’s article is shocking because it shows that medical bills are inflated many times beyond that.” Stratton, David B. “Bitter Pill article provides important insights for litigation” Insurance Defense Blog, Mar. 2013. This can be frustrating from a defense perspective because in Virginia and most of the surrounding jurisdictions, the collateral source rule bars a defendant from introducing evidence of payments or benefits a plaintiff received from a third party.[1] This makes it challenging for the defense to argue against the reasonability of a plaintiff’s medical bills and nearly impossible to do without retaining a medical expert. While...
by KPMLAW | Sep 18, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Brian A. Cafritz, Esq. With fires to hoverboards, cell phones, and other products routinely in the news, questions arise as to whether or not a retailer and manufacturer have a post-sale duty to warn consumers of dangers to its products. Virginia law on this point is muddled, and the Virginia Supreme Court has never provided a direct answer. However, the US District Court in the Eastern District of Virginia had a chance to grapple with this very question. In Estate of Rodriguez v. Diehl Woodworking & Machinery, Inc., 2016 U.S. Dist. LEXIS 103434, the Plaintiff was killed when a ripsaw produced a kickback, sending a sliver of wood out of the machine, and into his head. His estate sought recovery against the manufacturer under general negligence and for the failure to warn post sale. Under Virginia law, there are only three theories to recover under a products liability claim: 1) negligent manufacture; 2) negligent design; or 3) failure to warn. Morgan Indus., Inc. v. Vaughan, 252 Va. 60 (1996). When faced with a general negligence claim, a Virginia court will attempt to fit the plaintiff’s claims into one of those three categories. If the court cannot do so, the plaintiff’s claim must fail. Sykes v. Bayer Pharms. Corp., 548 F. Supp. 2d 208 (E.D. Va. 2008). Under a failure to warn claim, a plaintiff must show that the manufacturer knows or has reason to know that the product is dangerous for its anticipated use; has no reason to believe that users will know of the product’s dangerous condition, and fails to take reasonable care to warn of...
by KPMLAW | Sep 16, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Kevin Kennedy, Esq. Edited by Bill Pfund, Esq. Most companies that employ a fleet of vehicles have internal policies in the event of an accident. Drivers are often required to fill out an accident report describing how the incident in question occurred. While it is good practice for companies to gather as much information as possible and preserve evidence from an accident, incomplete accident descriptions contained in a driver’s report can become a sore spot in litigation. Plaintiff’s attorneys frequently attempt to use a limited written description of the accident as proof that additional accident details relating to the plaintiff’s actions or some other affirmative defense are invented facts. If a driver’s initial report omits a significant aspect of the defense’s theory of the case, it is worth exploring avenues for prohibiting use of the statement at trial. A preliminary question for the defense is whether the accident report is discoverable or privileged. Virginia courts have not provided a bright line rule that dictates when efforts by a defendant or the defendant’s insurer to preserve evidence related to an accident are deemed to be action taken in anticipation of litigation, and therefore privileged. Instead, a Virginia court will ask if “it was reasonably foreseeable that litigation would ensue at the time the statement was taken.” Whitehurst v. Lloyd, 37 Va. Cir. 224 (Loudoun 1995). This analysis depends on the facts of each case, but as a general rule “routine investigatory reports made and prepared without some minimal involvement of counsel are not protected.” Thompson v. Winn Dixie Raleigh, Inc., 49 Va. Cir. 115 (Chesterfield 1999). This precedent...
by KPMLAW | Sep 11, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Francie Belton Georges, Esq. Edited by Rachel A. Riordan, Esq. In Virginia, post-traumatic stress disorder (“PTSD”) is considered a psychological injury that may be compensable as an injury by accident in two circumstances. The first is if the PTSD develops as a result of a compensable physical injury by accident; for example, when an employee is injured in an explosion at work and then develops PTSD as a result of the traumatic event. This can also occur in the reverse, wherein the claimant suffers a psychological injury that then serves to aggravate a physical condition or manifest itself in a physical condition. In instances like this where the employee has a physical injury along with the psychological injury, the Commission evaluates whether the psychological injury is causally related to the physical injury to determine if an award of benefits is appropriate. If so, the employee can receive benefits for the psychological injury. However, in instances where the injury is only psychological and there is no accompanying physical injury, the Commission evaluates whether the claimant’s psychological injury is causally related to an “obvious sudden shock or fright arising in the course of employment.” Chesterfield County v. Dunn, 9 Va. App. 475, 477 (1990). In a recent opinion, the Full Commission evaluated a situation wherein a registered nurse, who provided at home care to her patients, was entitled to benefits for PTSD with no accompanying physical injury that occurred when a tornado touched down while the nurse was providing care at a patient’s home. Mayberry v. Gentiva Health Serv. USA, LLC, JCN VA00001211550 (June 6, 2017). The nurse arrived...
by KPMLAW | Aug 21, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Claire C. Carr, Esq. Edited by Rachel A. Riordan, Esq. It has been long held in Virginia that to prove an “injury by accident,” a claimant must prove: (1) an identifiable incident; (2) that occurs at some reasonably definite time; (3) an obvious sudden mechanical or structural change in the body; and (4) a causal connection between the incident and the bodily change. Additionally, it has long been held that injuries resulting from repetitive trauma or cumulative events and injuries sustained at an unknown time are not considered “injuries by accident.” Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989). In the industry, it’s been referred to as a requirement that a claimant show a “snap, crackle, pop,” or a specific moment of injury at a specific moment in time. And then came Van Buren. Several months ago we reported on the case of Van Buren v. August County, Court of Appeals, Record No. 1975-15-3 (July 19, 2016) which addressed what constitutes an “identifiable incident” at a “reasonably definite” point in time. Van Buren was a firefighter injured during a 45 minute rescue operation which involved many different physical tasks. Even though he could not identify a specific moment when his injury occurred, the Court of Appeals held the 45 minute rescue operation was sudden and specific enough to constitute an “identifiable incident occurring at a reasonably definite time.” The Court referenced the adrenaline rush during the rescue which may have masked the exact moment of injury, and held that public policy favored treating the entire 45 minute rescue as “one piece of work.”...
by KPMLAW | Aug 11, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Jessica Relyea, Esq. Edited by Brian A. Cafritz, Esq. The question of what amount of a plaintiff’s medical bills is recoverable is an issue that comes up with regularity in all personal injury cases. Defendants need to know how they can reduce the amount of damages a plaintiff can blackboard at trial. In Virginia, the collateral source rule prohibits a defendant from reducing or limiting the amount of medical damages being claimed because the bills were paid in whole or in part by an insurance company, other benefit, or otherwise written off by the provider. Acuar v. Letourneau, 260 Va. 180, 189-193 (Va. June 9, 2000). In other words, Plaintiff can present to a jury the full retail amount of billed medical specials that he is claiming were incurred as a result of the incident. The principle behind the collateral source rule is that a plaintiff is entitled to compensation sufficient to make him whole, but without creating a windfall. Id. In scenarios where the balance is difficult to strike, the courts have held its better to fall on the side of allowing a Plaintiff to receive double recovery than to allow a defendant to escape liability for his wrongs. Id. However, what happens if Plaintiff has filed bankruptcy and the medical bills that were incurred as a result of an accident were discharged? In that scenario, Plaintiff is absolved of paying any amount on the medical specials. Does Virginia allow a Plaintiff to still recover for those damages in a personal injury lawsuit? The answer depends on whether you are in federal or state court. The...
