Contents

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

TABLE OF CONTENTS

Chapters and Authors
About the Editor and Authors
Acknowledgments
Preface
Electronic Forms: Instructions and Table
CHAPTER 1: STATUTES AND RULES
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

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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
CHAPTER 5: EXPERT REVIEW
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

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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

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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

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