Bio picture of attorney Philip J. Geib.

Member Virginia
and
North Carolina
State Bar

Specializing in:
Workers' Compensation
Personal Injury
Wrongful Death
Medical Malpractice
Nursing Home Malpractice
The Defense Base Acts

Verdicts and Settlements

NEGLIGENCE

Automobile Accident, Death

Vonda M. Evans and Viola K. Roark, Co Administratrices of the Estate of Roy Harmon Roark, Deceased v. Lessell Bailey, Case No.: CL96-278; Virginia Beach Circuit Court
Special Damages:  $260,000 present value of economic loss; $38,000 medical/funeral
Expert Witness(es):
Plaintiff:  Raymond Strangways, Ph. D (Professor of economics)
Insurance Carrier:  Nationwide (Primary) and Aetna (UIM)
Outcome of Case:  Settled- $575,000 lump sum with future payments of $606,000 (Structured)
Attorney for the Plaintiff:  Philip J. Geib of Virginia Beach.

Description of Case:

The defendant, Lessell Bailey, had a long history of mental problems.  Some time after his release from the VA Hospital, the defendant began driving down North Great Neck Road in Virginia Beach at speeds in excess of 100 mph, striking a number of vehicles.  Further down the roadway, the defendant ran a red light and struck a van owned by the Virginia Beach City Public Schools which was operated by their employee and plaintiff’s decedent, Roy Roark.  Mr. Roark suffered massive injuries in the accident and lingered 10 days before dying.

The motion for judgment alleged negligence as well as a claim for punitive damages against the defendant.  The defendant’s demurrer to plaintiff’s claim for punitive damages was overruled.  The defendant had no recollection of the events surrounding the accident and was placed in a mental institution for an indeterminate time shortly after the accident.  The decedent left a wife and three grown daughters.

The total present value of economic loss (according to plaintiff’s expert) resulting from the loss of the decedent was approximately $260,000. The Workers’ Comp lien was settled for $12,334 with compensation benefits continuing for the weeks remaining.

NEGLIGENCE

Auto Accident  - Death – $1,181,000 Total Settlement

Type of Action - Auto accident
Type of Injuries - Death
Name of Case - Evans and Roark v. Bailey
Court/Case No.- Virginia Beach Circuit Court; No.  CL 96-278
Special Damages - $ 260,000 present value of economic loss; $38,000.00 medical/funeral
Damages Awarded or Settled – Settled
Amount - $ 575,000.00, plus future payments of $ 606,000.00
Attorney for Plaintiff  - Philip J. Geib, Virginia Beach
Insurance Carrier – Nationwide
Plaintiff’s Experts – Raymond Strangways, professor of economics
Defendant’s Experts - None

Other Useful Information:

The defendant had a long history of mental problems.  After his release from the VA Hospital, the defendant was driving at speeds in excess of 100 miles per hour, and struck several vehicles.  The defendant ran a red light and struck a van owned by the Virginia Beach City Public School which was operated by their employee, the decedent.  The decedent suffered massive injuries in the accident and died ten days later.

The Motion for Judgment alleged negligence as well as a claim for punitive damages against the defendant. The defendant’s demurrer to plaintiff’s claim for punitive damages was overruled.  The defendant had no recollection of the events surrounding the accident and was placed in a mental institution for an indeterminate time shortly after the accident.  The decedent left a wife and three grown daughters.

The total present value of economic loss, according to the plaintiff’s expert, resulting from the loss of the decedent was approximately $260,000.  The workers’ Compensation lien was settled for $12,334.00 with compensation benefits continuing for the weeks remaining.   [96-T275]

NEGLIGENCE

Auto Accident – "Dead Man’s Statute"

Type of Action – Personal injury, automobile accident
Type of Injuries – Soft tissue, cervical spine aggravation of pre-existing congenital spinal stenosis (narrowing of spinal canal)
Name of Case – Dickerson v. Boyd (administrator of the estate)
Court/Case No. – Norfolk Circuit Court, L92-3284
Judge or Jury – Jury
Name of Judge – Judge William F. Rutherford
Special Damages - $6,200 chiropractic and neurology bills, $5,200 lost wages
Damages Awarded or Settled – Awarded
Amount - $50,000 Ad damnum
Attorney for Plaintiff – Philip J. Geib, Virginia Beach
Insurance Carrier – Omni Insurance Co.
Highest Offer - $ 17,000
Plaintiff’s Experts – Dr. Pamela Ives, chiropractor; Dr. Armistead Williams, neurologist
Defendant’s Experts – None

Other Useful Information:

The defendant, Robert Barkan, had died after the suit was filed.  The plaintiff’s evidence was struck at first trial by the trial judge on the basis of Virginia Code§ 8. 01-397.  The trial judge determined there was no corroborating evidence as required by the "dead man’s statute."  The plaintiff appealed, and the trial judge’s ruling was reversed by the Supreme Court.  A new trial was ordered.

The plaintiff claimed soft tissue injuries and an aggravation of a pre-existing congenital spinal condition (spinal stenosis.)  A rear-end accident, the trial court permitted a contributory negligence instruction to be read to the jury.  The deceased defendant’s statement that the plaintiff had "cut him off" was read to the jury by the police officer.  The trial court also allowed "failure of plaintiff to mitigate damages" instruction to be read to the jury.

NEGLIGENCE

Automobile Accident – Back Injuries

Type of Action – Automobile accident – back injuries
Type of Injuries – 6-9 rib fracture mid-axillary line with minimal displacement, mild to moderate cerebral concussion, T12 compression fracture without neurologic compromise
Name of Case – Kyoko Brawley v. A.W. Temple Inc. and William L. Randale
Court/Case – Virginia Beach Circuit Court,  No. CL92-2437
Special Damages - $11,998 medicals; five percent permanent disability
Damages Awarded or Settled – Settled
Amount - $100,000
Attorney for Plaintiff – Philip J. Geib, Virginia Beach
Insurance Carrier – Virginia Mutual Insurance Co.
Plaintiff’s Expert – Dr. George Charron

Other Useful Information:

The plaintiff was a passenger in a station wagon being driven by her husband.  The car was headed north on the Chesapeake Bay Bridge Tunnel. The defendant was operating a tractor trailer which was behind the plaintiff’s vehicle. While proceeding across the Bridge-Tunnel, the plaintiff’s vehicle stopped for construction at the 14-mile post and was waiting in traffic when the vehicle was struck in the rear by the defendant’s vehicle.

The defendant allegedly claimed that the sun was in his eyes and this interfered with his ability to see the plaintiff’s stopped vehicle. Later, the defendant allegedly stated the plaintiff’s vehicle had stopped suddenly, which did not permit him enough time to slow down and avoid the accident. The plaintiff suffered a compression fracture at T-12 which resulted in the five percent permanent disability.  The plaintiff also had pre-existing lupus. The plaintiff was prepared to testify that the injury continues to cause her lower back pain.

NEGLIGENCE

Wrongful  Death Electrocution Cleaning Gutters

Type of Action – Wrongful death- electrocution
Type of Injuries – Severe burns
Name of Case – Darlene Macklin, Adm. of Estate of Bobby Washington v. City Court of Southampton, No. CL92-52
Name of Judge – Judge William Hodges
Special Damages - $120,000 medical expenses; $4,000 funeral bill
Damages Awarded or Settled – Settled
Amount - $210,000
Attorney for Plaintiff – Philip J. Geib, Virginia Beach
Insurance Carrier – Selective Insurance Company
Plaintiff’s Experts – John B. Dagenhart, electrical engineer, expert on National Safety Code; Dr. Raymond Strangeways, economic loss evaluation
Defendant’s Expert – Beverly Middleton

Other Useful Information:

The decedent was cleaning gutters on the roof of the Birdsong Peanut Co. in Franklin, Virginia. While cleaning the gutters, the decedent’s right hand came in contact with a power line located six feet vertically from the edge of the roof.  Plaintiff alleged there was no horizontal clearance for the power line on the roof’s edge at the time of the accident.
The defendant claimed that the power line had come in proximity to the roof as a result of a broken anchor on a supporting pole.


The plaintiff claimed violations of the National Electric Safety Code. The decedent had been warned by a supervisor for Birdsong Peanut Co. two weeks prior to the accident not to touch uninsulated electrical wires around buildings at Birdsong Peanut Co. The decedent also had remarked to a co-worker about the proximity of the wire to the edge of the building. Prior to his death, the decedent earned approximately $12,000 per year as a laborer for Birdsong and was survived by one daughter, aged four years.

 

$200,000 slander suit filed over alleged insults

One lawyer is suing another lawyer for slander, seeking $200,000 because the second lawyer allegedly called him "a g-damn liar" and "a f---g sleaze." The lawsuit was filed June 25 in Circuit Court by Virginia Beach lawyer Steven L. Brown. As a result of the alleged remarks, Brown "has been caused to suffer humiliation, embarrassment, mortification, shame, vilification, ridicule, exposure to public infamy, disgrace, injury to his professional and personal reputation and feelings, and has been hampered in the conduct of his business and affairs," the lawsuit states.


Brown claims the remarks were made May, 17 in front of Brown’s client by Washington lawyer Ira C. Wolpert before a scheduled deposition. The remarks "clearly impugn the honesty and integrity that the plaintiff… and imply that the plaintiff does conduct himself in an unethical, dishonest and unprofessional manner," the lawsuit states.
A lawsuit represents only one side of a dispute.  So far, Wolpert has not replied.  In fact, he said he was unaware of the suit until a reporter called him Thursday.


Wolpert denied making the comments, saying Brown wasn’t even present for the alleged conversation.  Wolpert said the incident took place in Brown’s client’s office when Brown failed to show up for a deposition.  Wolpert said he did complain about Brown’s unprofessional conduct. But Brown’s lawyer Philip J. Geib of Virginia, said Wolpert should have known the deposition had been called off.  He acknowledged that a slander suit between two lawyers is virtually unheard of in Hampton Roads, but said it is not unprecedented in Washington, where lawyers are less courteous.


"You would hope you would never see a local do that (make those kind of remarks) down here," Geib said. Wolpert hinted that he will counter sue Brown and Geib for filing a frivolous lawsuit.  "Mr. Brown and his lawyer will suffer whatever consequences there are," Wolpert said.

Issues regarding Virginia’s malpractice cap

A medial malpractice plaintiff can claim more than $ 1 million in damages, even though the damages recoverable are capped at that amount, a Norfolk Circuit judge has ruled.
Denying a defense motion to reduce an ad damnum of $5 million, the judge ruled that determining damages is part of the fact-finding function a jury must fulfill before the med-mal cap comes into play.


The decision may reassure plaintiffs’ lawyers in Hampton Roads and other areas who often confront such motions and encounter judges who are receptive to them.
Though lawyers said that judges in some parts of the Commonwealth usually do not grant defense requests to reduce damage claims, a lawyer in the Norfolk case said Hampton Roads courts have been evenly split on the issue.

The case is Benson v. Lowe (VLW 097-8-436).  Judge Marc Jacobson wrote the opinion.

Amount Sought – The administratrix of a woman who died shortly after a hysterectomy sued two doctors claiming they were negligent in performing the surgery.
The doctors denied negligence, and one of them moved for a reduction of $ 5 million damage claim to the statutory cap of $ 1 million.


Virginia Code § 8.01-581.15 provides that "[i]n any verdict returned against a health care provider,…the total amount recoverable for any injury to, or death of, a patient shall not exceed one million dollars." In denying the reduction request, Jacobson wrote that the language imposing the cap contemplates a jury reaching and announcing a decision before the recovery limitation is in effect. " A condition precedent to the $1,000,000 limit is a verdict returned by a jury," he wrote.  "The statute makes this distinction clear by limiting not the amount demanded, but, rather, ‘the total amount recoverable."


Jacobson also noted that in Etheridge v. Medical Center Hosps., 237 Va. 87 (1989), which upheld the cap on recovery "only after the jury has fulfilled its fact finding function."
That reasoning would appear "to indicate the role of the jury in determining damages," Jacobson wrote. The defense also argued that the plaintiff at least should not be permitted to inform the jury of the ad damnum or any amount above the cap.  Jacobson rejected the argument, stating that Virginia Code § 8.01-379.1 "allows the plaintiff in any civil action to inform the jury of the amount of damages sought, not damages recovered nor damages recoverable."

Split in Hampton Roads

Motions for a reduction in the ad damnum are commonplace, according to Philip J. Geib, the Virginia Beach lawyer who represented the decedent’s estate.  And courts in Hampton Roads have been evenly split on the reduction issue, he said. Geib noted, though, that Newport News Circuit Judge Robert P. Frank had reached the same conclusion in a case in March.  In that case, Bennett v. Riverside Regional Medical Center (VLW 097-8-437), Frank denied a defense motion to reduce an ad damnum clause form $6 million to $1 million.


Ad damnum reductions have not been an issue in Northern Virginia, said Fairfax lawyer Benjamin W Glass III.  But echoing Geib, Glass said that when he gets together with his colleagues, he hears that reduction of damage requests is an issue in Hampton Roads.
Tysons Corner lawyer Cynthia L. Santoni, though, seemed to suggest that even Northern Virginia courts are not so set against such motions.  She said she had succeeded on reduction motions prior to trial a majority of the time in both Fairfax and Loudoun County.
Santoni added, though, that she hasn’t filed such a motion in about two years.  Why?  Because except for "bad baby" cases, plaintiffs are seldom asking for more than the cap in the first place, she did not argue the motion.


As for Richmond, judges are not very receptive to such requests, according to Anne G. Scher, who represented one of the doctors in Benson, though she did not argue the motion. Still, Scher said she routinely asks for a reduction, by either raising the ad damnum issue in her grounds of defense or filing a motion.  But she does so to get the issue in the record, and she does not schedule her reduction motions for hearing, she said. She noted that she had lost a reduction request before Norfolk Circuit Judge John E. Clarkson.


The fundamental question is why a plaintiff should be able to ask for more than he or she can recover, Scher said. Richmond lawyer Malcolm P. McConnell III gave a broad policy reason that plaintiffs ought to be able to ask for more than $1 million: Statistics of jury verdicts in excess of the cap, even though later reduced, help the legislature determine the propriety of any cap in general and this cap in particular, he said. It is important for the public to know that a jury felt the doctor actually caused several million dollars in damage, McConnell said. Two other judges from different areas of the commonwealth also have issued written opinions and split on the issue in the last couple of years.

In Smith v. Gomez (VLW 095-3-393), Fairfax Circuit Judge Jane Marum Roush disagreed with the defendant’s contention that the ad damnum should be reduced to the cap at the demurrer stage.  The appropriate procedures is to submit the case to the jury without informing it of the limit on recovery, she said.  Should the jury return a verdict in excess of the 'cap, the trial judge will reduce the award to the amount of the med-mal cap.


Norfolk lawyer Robert E. Moreland represented the doctor who made the reduction request in Benson. He could not be reached for comment.

Sweeper wins $1.1M, York record

A Newport News man struck from behind while driving a street sweeper in Chesterfield County has been awarded $1,100,000 by a York County jury against the operator of the tow truck that hit him. The verdict is believed to have set a new record for a personal injury award in York County.


The case is Beitler v. Drees and Lee Haul Service Center Inc., filed in the York Circuit Court, Case Number 7415.  Representing the plaintiff were Philip J. Geib of Virginia Beach and William McKee and Lowell Stanley of Norfolk.  Jeff W.Rosen of Virginia Beach represented the defendants.  Judge N. Prentiss Smiley presided over the trial.

Rear-ended

According to Geib, the plaintiff was operating a street sweeper when he slowed to avoid a bicyclist in front of him.  The defendant, driving a flatbed tow truck carrying a Ford Bronco, collided with the street sweeper, which the defendant claimed at trial had pulled out in front of him.  The defendant also said that the street sweeper’s rear brake lights were not working, but evidence presented by the plaintiff in the form of an inspection showed that the lights were working correctly.

Geib said that after the accident, the plaintiff was taken to the hospital, where he claimed he suffered from neck and back pain.  As the pain worsened, the plaintiff’s family doctor referred him to an orthopedist.  Eventually, he was referred to a neurosurgeon who opined that the plaintiff suffered from a pre-existing stenosis and a large osteophyte at C-3/C-4, and a discectomy with fusion was performed.

The plaintiff’s pain continued after surgery, and after he was referred to another neurosurgeon and a pain management specialist, it was opined that the plaintiff’s pain was caused by a nerve compression, caused by the accident and necessitating spinal surgery. The work restrictions from the resultant injuries prevented the plaintiff from returning to his street sweeper job, which he had held for 10 years, Geib said, and the plaintiff had to find work as a security guard at a lower wage.


The case was taken to trial on the issue of liability and damages.  Damages reported by the plaintiff separate case filed for medical malpractice injuries inflicted during the treatment of his injuries was not allowed by the judge, who ruled that the injuries in that matter were distinct and that the proximate injuries caused by the accident would be the only ones allowed to be contested.


One of the defendant’s experts, Dr. Isabella Richmond, said that, at best, the plaintiff had only suffered a strain or sprain which would have healed in two to three months, Geib said.  However, it was established that she was no longer practicing as a neurosurgeon and that "her living is testifying and reviewing cases for income" as a "medical/legal expert," Geib said. The defense also attempted to establish that the plaintiff’s pre-existing earnings were less than claimed on his income tax returns, Geib said.  An economist was brought in by the defense to reduce the future lost wages to the amount presented in the trial.

Reason for verdict

Geib said that one reason for the large award was the plaintiff himself.
"He was very matter of fact," Geib said, as he believed that the jury connected with him as "a common man….he did very well on direct examination and cross examination.  He was able to relate the damages well to the jury."  He described the plaintiff as "one of the most motivated people" he knew, whose injuries in the accident restricted the plaintiff to "light sedentary work."


Another factor in the award amount is the perception that small county juries award smaller amounts in cases such as this, Geib said.  That bit of apparent conventional wisdom may be becoming less reliable. He cited as an example the Buena Vista jury that earlier this month awarded $3.7 million to the family of a woman hit and killed by a Greyhound bus, in what is believed to be the largest wrongful death verdict in the state.


"Those areas don’t award large damages on these cases, historically," Geib said.  "If you have sufficient damages to put on show for the jury, they should deserve a larger verdict, rather than have the jury consider past verdicts as precedents." Geib also said that smaller rural areas "include people who have earned a significant living," and that the types of people living in those areas are becoming more diversified. "There are not just farmers on the jury anymore, and they understand larger issues," he said.

Overturn of Defense

Reversed a Norfolk Circuit Court decision in a case involving a child who lost his thumb after a door was shut on it at the Boys and Girls Club of Hampton Roads. The boy’s mother sued Virginia Wesleyan College and John Braley, a professor who allegedly shut the door on the child’s thumb.  The Norfolk Court dismissed the suit, ruling that Braley was entitled to charitable immunity. But the Supreme Court ruled that Braley, who was at the club to observe one of his students, "presented no evidence that he was doing anything particular for the club at the time of the incident."

NEGLIGENCE

Charitable Immunity; Performing Charity’s Work at Time of Accident
Mooring, a minor v. Virginia Wesleyan College No. 987270; Norfolk Cir. Ct.
(4/16/99) Laci, J. VTLANo.1882  (5 pages)

Even though plaintiff child suffered an amputation of his thumb when defendant professor closed the boy’s hand in a door at the Boys and Girls Club, the Supreme Court held that defendant was not entitled to charitable immunity as a volunteer at the Club because he was not engaged in the charity’s work at the time of the accident.  Rather, explained the Court, defendant was at the Club to observe a class conducted by one of his students and was acting as "doorkeeper" at the student’s request.  Reversed and remanded for further proceedings.

Medical Malpractice

Death – EKG/ECG Interpretation

Type of Action – Medical malpractice
Type of Injuries – Death
Name of Case – Confidential
Court/Case No. – Circuit Court Confidential
Awarded/Settled – Settled
Amount - $450,000
Plaintiff’s Attorney – Philip J. Geib, Virginia Beach
Plaintiff’s Experts – Cardiologist; emergency room physicians; economist
Defendant’s Experts – Cardiologist and emergency room physicians
Insurance Carrier – Confidential

Other Useful Information:

The decedent was a 41-year-old air traffic controller and was at work when he began to experience chest pain, pressure symptoms and tingling in his hands.  Due to continuing symptoms of pain, the decedent presented to the emergency room, complaining primarily of upper sternal chest pain anteriorally, with some pressure symptoms which had occurred some 30 minutes prior.  The decedent had a prior history of sarcoid, which had not been active for quite some time, which he described as entirely different. 

An examination was undertaken by the defendant emergency room physician, who noted that the decedent’s chest wall was non-tender upon palpation.  Blood work and EKG were ordered.  The EKG was read as "sinus rhythm, rate 62, premature complex; ventricular or aberrant superventricular, border line first degree AV block, early transition, probably early repolarization pattern."  The final reading/diagnosis was "abnormal EKG/ECG." 

Based upon the defendant emergency room physician’s interpretation of the ECG and his physical examination, the decedent was diagnosed with "acute myofascial chest pain."  The emergency room physician released the decedent with instructions to return home and take Advil three times every six hours for discomfort and to follow up with his family physician as needed.  The decedent returned home, where he was found approximately 1 and a half hours later by a friend, totally unresponsive with no pulse.  Attempts to resuscitate the decedent failed.


Plaintiff’s experts opined, among other things, that the defendant physician’s interpretation of the ECG was entirely inaccurate and, in fact, showed that he was having an acute anterior wall myocardial infarction.  Plaintiff’s experts further opined that the overall presentation of the decedent, coupled with the abnormal ECG, should have caused the defendant emergency physician to immediately admit the decedent to rule out cardiac involvement.  Defendant’s experts opined that the plaintiff’s overall presentation lead to an appropriate discharge and the ECG was normal.

The case settled at mediation shortly before trial. The decedent, who was divorced, was survived by two minor children who were in the custody of his ex-spouse.

Medical Malpractice

Wrongful Death

Expert Witnesses:
Plaintiff:  cardiologist from MCV in Richmond and an internist from Newport News, an economist
Outcome of Case:  Settled at mediation for $650,000
Attorney for the Plaintiff:  Philip J. Geib of Philip J. Geib, P.C., in Virginia Beach.

        
Description of Case:

The plaintiff’s decedent was a 52-year-old male who, in August 1997, began to experience chest pain, causing him to seek treatment with his family physician.  The physician ordered immediate EKG studies scheduled a Thallium stress test and the EKG were interpreted as "normal." 

In November 1997, the decedent again began to experience severe chest pain over a weekend, also with pain in his left arm.  He called his family physician and was scheduled to come into the office the following Monday.  The family physician examined the decedent and noted complaints of chest pain and pain in the left arm. 

No EKG or other diagnostic studies were ordered and the physician diagnosed costochondritis.  The decedent was prescribed pain medicine and muscle relaxants, sent home and instructed to return in two weeks for GI studies.  Hours later, the decedent called the family Physician’s office and stated that the pain was not better with the medication.  A shot of Morphine was requested by the decedent.  In response, a prescription for Demoral was written and filled.  The decedent continued to experience severe chest pain after taking the Demoral.


The decedent called the family physician’s office two days later (Thanksgiving Day) and described his symptoms, which now included shortness of breath, to the physician of call.  The decedent had read the handouts accompanying his prescriptions and read that a shortness of breath was sometimes a side effect of one of his prescribed medicines.  The physician on call advised to stop taking the medication and schedule an appointment for the following Monday.  No recommendation was made at any time by any of the defendant health care providers to go to the emergency room.


The following day, due to extreme chest pain and shortness of breath, the decedent presented to a hospital emergency room where he was found to be in congestive heart failure as a result of an ongoing, untreated myocardial infarction(s).  Decedent was immediately scheduled for surgery, which included a mitral valve replacement.  Shortly after the surgery, the decedent expired.


The decedent’s experts opined that the standard of care, given the presentation of the decedent, required an EKG or immediate hospitalization, and that failure to diagnose the decedent resulted in his death.  The defendant’s physician was aware that the decedent’s family history involved several relatives who had died at early ages with myocardial infarctions. 

Further, the decedent had a cholesterol screening by the defendant family physician two years prior to his death, which revealed high cholesterol.  Decedent’s experts opined that these results should have been immediately acted upon.  The family physician testified at depositions that he never considered the possibility of a myocardial infarcation or cardiac disease, based upon the results of the previous EKG, Thallium stress test and physical examination done two months earlier.  The decedent died, leaving a spouse and six grown children.

Medical/Dental Malpractice

    

A dentist whose patient died after he performed a simple tooth extraction in 1997 has settled a lawsuit filed against him by the patient’s family. Dr. Steven J. Solomon lost his license to practice dentistry following the incident in March 1997, when Shannon Nye Askins consumed sedatives shortly before she visited Solomon to have a tooth extracted.
Askins was discovered unconscious by her boyfriend in an apartment on March 14,1997, only hours after Solomon pulled her tooth.  She died two days later.


Solomon’s attorney, John Franklin, would not disclose details of the settlement, which apparently was reached in mid-May.  The case had been scheduled for trial on June 1.
The state Board of Dentistry decided by unanimous vote in November 1998 that Solomon was negligent in his practice and posed danger to his patients. The board said that Solomon wrongly performed surgery after he knew that Askins had consumed too many sedatives.  He failed to monitor her condition and improperly discharged her when he should have gotten her medical treatment, the board said.


 The board also found irregularities in Solomon’s treatment of two other patients.  One’s jaw was fractured during an extraction and the other suffered complications after a root canal.  It was not Solomon’s first conflict with the board.  In 1986, he was placed on probation as the result of a cocaine-possession conviction, according to court records.


Askins first visited Solomon’s office on March 12, 1997 complaining of a toothache.  Solomon gave her a prescription for 12 tablets of Xanax, an anti-anxiety drug, and 20 tablets of a powerful pain reliever containing generic Demerol, according to testimony at a dental board hearing in November. Askins had a history of substance abuse and had attempted suicide, according to board documents and hearing testimony. On the day of the extraction Askins came to the appointment giddy and displaying slurred speech and an unsteady gait, according to earlier accounts. Solomon discharged Askins following the procedure despite warning signs that she was still heavily sedated.  She was found unconscious several hours later.

NEGLIGENCE

Personal Injury-Wrist

Type of Action – Personal injury
Type of Injuries – Broken injury
Name of Case – Bagwell v. Kim
Court/Case No. – Norfolk Circuit Court
Name of Judge – Judge Lydia Taylor
Awarded/Settled – Awarded
Amount - $90,000
Special Damages - $23,947.39 in medical bills
Insurance Carriers – State Farm, Allstate and Nationwide
Highest Offer - $30,000 from Allstate no offers from State Farm or Nationwide
Attorney for Plaintiff – Philip J. Geib, Virginia Beach

Other Useful Info:

The plaintiff was a passenger in her boyfriend’s (now her husband) vehicle insured by State Farm.  They were following a friend’s vehicle (Nationwide) on way to a festival in Norfolk.  A third defendant (Allstate), failing to see either oncoming vehicle, made a U-turn in front of the vehicles.  The friend’s vehicle struck that vehicle and the plaintiff’s vehicle then struck the friend's vehicle.  The driver of the third vehicle did not speak English, but indicated through a translation that he never saw the other two vehicles prior to the accident.  The friend testified that he could not avoid the impact as the third driver had come into his lane of travel without stopping.


The plaintiff suffered a fractured to her left wrist, which required closed reduction surgery with an application of an external fixator.  She subsequently required surgical intervention for arthrofibrosis, consisting of arthroscopy and the debridement of scar tissue.  She was left with unsightly scars to her forearm and wrist.  However, her physician did not assign a permanent impairment.  Allstate made a one-time offer of $30,000 and requested contribution from the other two defendants.  Neither the boyfriend’s carrier or the friend’s carrier made any offers prior to or during the trial.


Evidence was introduced at trial that the plaintiff’s boyfriend and the friend in the second vehicle had been "racing" at some time prior to the impact.  However, both of these defendants testified that they were traveling at or below the speed limit at the time of the accident.  The jury, after hearing all of the evidence, found only against the boyfriend (insured by State Farm), and his available coverage was $75,000.  [00-T-234]

NEGLIGENCE

Pedestrian/Motorcycle Collision

Type of Action – Negligence – Pedestrian/Motorcycle Accident
Type of Injuries – Wrist Fracture/Subdural Hematoma
Name of Case – Sykes v. Stellwag and Khedive Temple, etc. (The Shriners)
Court/Case No. – Chesapeake Circuit Court
Judge – Judge Russell Townsend Jr.
Special Damages - $9,500 medicals
Awarded or Settled – Awarded
Amount - $75,000
Highest Offer - $0
Attorney for Plaintiff – Philip J. Geib, Virginia Beach
Plaintiff’s Experts – None
Insurance Carriers – North Carolina Farm Burea and Nationwide Insurance Company

Other Useful Information:

The plaintiff and her family were bystanders at the Shriners’ Parade in Virginia Beach. A motorcycle operated by the defendant, Stellwag, left the parade route (street) and ran up on the sidewalk, striking the plaintiff and knocking her to the ground.  The defendant Shriners claimed that a small child stepped off the curb into the street as the defendant motorcycle operator(s) were performing “figure eights" in the street along the parade route.  The defendant claimed he swerved and came up onto the sidewalk in order to avoid striking the child. 

Some of the defendant’s witnesses testified that his motorcycle never left the street or came over the curb.  Plaintiff’s witnesses testified that just prior to the collision, they observed the motorcycles operating at an excessively high rate of speed and yelled out to the operators to slow down.  No witnesses actually saw the plaintiff struck by the motorcycle. Defense witnesses claimed that the plaintiff was injured because she tripped over the curb while lifting the child from the street. The emergency technician at the scene testified that upon regaining consciousness at the scene, the plaintiff stated, when asked what happened, "the motorcycle ran me over."  The plaintiff suffered a fracture to her left wrist and a small subdural hematoma which resolved.  [99-T-139]

       

The Week's Opinions

A med-mal plaintiff who nonsuited his original motion for judgment alleging misdiagnosis of a bone fracture may amend his pleading to state a claim for failure to adequately treat his injury, and to raise the ad damnum from $500,000 to $2 million.

Virginia Code § 8.01-5, effective July 1, 1996, provides that an amendment of a pleading changing or adding a claim or defendant relates back to the date of the original pleadings for purposes of the statute of limitations if the court finds that the claim or defense in the amended pleading arose out of the conduct, transaction or occurrence in the original pleading; the amending party was reasonably diligent in asserting the amended claim or defense; and parties opposing the amendment will not be substantially prejudice as a result of the timing.

Defendants argue that the rule of Vines v. Branch, 244 Va. 185(1992), was codified in clause one of Code § 8.01-6, citing Cunningham v. Garst, 44 Va.  Cir. 422 (1998).  Under Vines, the relation back was determined solely by whether a new cause of action was alleged.  Under the construction of the statute defendants advance a new claim relates back only if it is not a new cause of action, the plaintiff was reasonably diligent in asserting the amended claim, and there is no substantial prejudice to defendant.  Defendant also cited four other circuit court decisions applying the Vines rule after July 1, 1996.  However, in none of those decisions was § 8.01-6.1 even mentioned.  As a court is required to apply a controlling statute, I must assume the statute was not cited to those courts.

The only other circuit court decisions I have found construed the statute without mentioning Vine, thus interpretation also has been adopted by two of the leading commentators on Virginia civil procedure.

I conclude that § 8.01-6.1 now governs the relation back of new claims in an amended motion for judgment, the relation back of new claims in an amended motion for judgment, and that clause one does codify the rule of Vines v. Branch, but establishes a new standard.  In applying the statute to the proposed amended motion for judgment, I find that the new claims asserted (assuming, without deciding, that they are new causes of action) arise out of the conduct, transaction, or occurrence described in the original motion for judgment, that is, defendants’ care of plaintiff.  I also find there is no substantial prejudice to defendants.  No trial date has yet been set and a doctor can hardly be surprised when a former patient who has alleged misdiagnosis now alleges a failure to treat the misdiagnosed condition.

This leaves plaintiff’s diligence in asserting the new claims.  Defendants concede that plaintiff’s cause of action may not have accrued until December 1995.  He re-filed his motion for judgment pro se on March 20, 1998.  Disregarding the six-month extension of Code § 8.01-229(E)(3), the statute of limitations expired here in December 1997.  From then at least through the end of March 1998, plaintiff was pro se.  Even if his lawyer was retained as early as the beginning of April, he asserted the new claims within 10 weeks.  I conclude, under the circumstances, that plaintiff asserted the new claims with reasonable diligence.

Defendants next claim plaintiff should not be allowed to increase his ad damnum because the permissible amount is limited by either the amount sought in the non-suited action or by Va. Code § 8.01-581.15. The first contention has been answered adversely to defendants in Conner v. Rose, 252 Va. 57 (1996).  On the second contention there is a split of authority.  I find more persuasive  those cases allowing the pleading of an ad damnum  in excess of the statutory maximum recovery.  This result seems to have been implicitly endorsed by the Supreme Court in Etheridge v. Medical Center Hosps., 237 Va. 87 (1989).

Keeble v. Webb (Martin) Law No. L98-714, Jan. 11, 1999; Norfolk Cir. Ct.; Phillip J. Geib for plaintiff; Brian O’Dolan, Colleen Dickerson for defendants* VLW 099-8-099,5pp

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BARRETT v. APPLIED RADIANT ENERGY CORP.

A female sales rep can sue her employer for negligent retention of a sales manager who she alleges sexually harassed her. USDC, VLW 099-3-014

CALL v. SHAW JEWLERS

A woman may sue her employer, a jewelry store, for negligent retention of an alleged sexual harasser.  USDC, VLW 099-3-008.

 
SPROLES v. LOWRY

In figuring a father’s child support obligation in light of a $157 "credit" for his child from a prior marriage, the trial court did not err in deducting the $157 after calculating father’s presumptive amount under the guidelines.  Va. Ct. App., VLW 099-7-015(up).

 
KEEBLE v. WEBB

A 1996 statute changed the standard for allowing new causes of action to be added to pleadings, and a med-mal plaintiff may amend his suit to add a claim of inadequate treatment to a claim for misdiagnosis. Va. Cir.Ct., VLW 099-8-009.