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Legal Precedents

Legal Precedents Set by the Law Office of Jeffrey J. Downey, PC

Successful law firms are measured not only by their verdicts, but also by the legal precedents they establish to help future generations of lawyers excel in their chosen practice area. The Law Office of Jeffrey J. Downey has established numerous case precedents that have helped Plaintiffs pursuing medical malpractice and elder neglect cases. Below is a summary of some of the most important precedents. Anyone relying on these legal precedents in a court proceeding should update their research to determine if any later cases have modified or reversed these holdings.

 

Miriam Hirsch v. CSP Nova, 2018 WL 3231467, 98 Va. Cir. 286 (Loudoun Virginia 2018)

This is one of the most significant legal opinions addressing discovery in Virginia, compelling numerous categories of documents in a nursing home malpractice case including incident reports, training materials, policies and procedures, staff personnel files, prior complaint, electronic data, along with financial and operational data. The opinion cites other relevant cases showing why expanded discovery in a nursing home neglect case is relevant to show that Defendants had prior notice of their bad practices. This case should be cited any time Plaintiff is filing a Motion to Compel addressing these discovery issues. The case was settled so this decision was never appealed.

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Huffman v. Beverly Enterprises, 42 Va. Cir. 205, 1997 Va. Cir. Lexis 113 (Rockingham County, 1997)

This case addressed numerous legal issues in Virginia including punitive damages, ratification of punitive damages and the medical malpractice cap. It also decided whether a staff members sexual orientation was relevant to the allegations of sexual abuse. It also found that Defendant’s prior bad acts were admissible to show that his supervisors had notice of his dangerous propensities. This matter was never the subject of an appeal.

 

Bruce Lee Irle v. Inova Health System Foundation, et al, Cl-2018-11276 (Fairfax Virginia 2019)

Some nursing homes require their patients to waive their legal rights to file a case in court as a condition of admission. This practice was common during the Trump administration after President Trump abolished an Obama era regulation that prohibited these mandatory arbitration agreements. In this case the Court refused to enforce a mandatory arbitration provision because it was not executed by the patient or his lawful power of attorney. In addition to the case decision, we have posted a link to the legal brief that was filed by the Plaintiff in this case. This decision was never subject to an appeal.

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Henderson v. Hickory Hill Retirement Community, CL 19-187 (Nottoway Count, Virginia 2019)

Plaintiff alleged punitive damages and consumer protection claims in this case against an assisted living facility alleging wrongful death from dehydration. The Court upheld Plaintiff’s punitive damage and consumer protection claims and overruled Defendant’s demurrer. The Court also required Defendant to designate a corporate designee to speak to address prior regulatory violation of the assisted living facility and their representations made in marketing materials.

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Kevin Barkman v. Fahrney-Keedy Memorial Home, Inc, Law No. C-21-cv-18-643 (Washington County Circuit Court, Maryland 2019)

This was a nursing home malpractice case alleging lack of proper fall prevention. The Court granted Plaintiff’s Motion to Compel to obtain staff training materials and facility protocols, subject to a protective order. The Court also required the defendant to produce comparable complaints of other patients.

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Richard Humphrey v. Leewood Heathcare Center, et at, CL-2007-663 (Fairfax Virginia 2007)

This case alleged consumer protection claims in failing to prevent Mr. Humphrey’s elopement from the nursing facility. Defendant filed a demurrer arguing that Plaintiff could not pursue a consumer protection claim because the care did not involve a consumer transaction and that it was preempted by other Virginia statutes. The Court rejected various arguments, finding that nursing home care did constitute a service under the act. The court required Plaintiff to replead various facts in support of the claim, but the holding provided useful support for the assertion of a consumer protection claim in a nursing home malpractice case.

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Corrales v. HHC Poplar Springs, Inc, CL 150000378-00 (Petersburg Virginia, 2015)

Plaintiff alleged she was sexually assaulted by another patient in this psychiatric facility. Defendant filed a demurrer to the consumer protection claim arguing that the Medical Malpractice Act preempted claims under Va. Code 59.1-199, the Consumer Protection Act. The Court found that Plaintiff had alleged sufficient misstatements of fact to support a consumer protection claim and denied the demurrer.

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Fettig v. Safeway, Law No. 2017-11588 (Fairfax Circuit Court, 2018)

Plaintiff cross noticed a discovery deposition of a treating medical provider taking the position that if the defense was going to do a discovery deposition, Plaintiff could take a de bene esse deposition (for trial) right after the discovery deposition was completed. Defendant’s Motion for a protective order, seeking to delay the de bene esse deposition, was denied by the court in a motion before calendar control.

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Margaret Smallwood v. Health Care Institute, Law 2007 CA 007517 (D.C. Superior Court, 2008)

This order was generated in the context of a Motion to Compel filed against a nursing home in the District of Columbia. The Court required Defendant to produce similar complaints, personnel files, budgets and financial information, subject to certain limitations set forth in the order.

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James Conrad v. CSP Nova, d/b/a Commonweath Health and Rehab Center

This case alleged punitive damages based on Defendants’ alleged failure to correct staffing and other care deficiencies, as set forth in prior statements of deficiencies cited by the Virginia Department of Health. Plaintiff’s primary injury was a pressure wound that became infected and allegedly caused her death. The Court found that Plaintiff had alleged sufficient facts to make out a claim for punitive damages under Virginia law and overruled Defendants’ demurrer.

Complaint

Order denying demurrer

 

Dana Jones, Guardian of Raymond Jones v. Centra Health Inc d/b/a Guggenheimer Health and Rehab Center, CL 14000696 (Lynchburg Circuit Court, Virginia 2015)

This case alleged that Defendants failed to prevent Mr. Jones’ elopement from a third story window despite a nurse aide being present in the room at the time. The Court required the Defendant to produce staff personnel files as well as similar complaints of neglect involving other residents.

Link

Additional information in the Jones case can be found here.

 

Clifford Temes v. CSP Nova LLC, d/b/a Commonwealth Health and Rehab Center, CL 2012 0014808 (Fairfax Cir. Ct. Virginia, 2013)

In this nursing home negligence case, the Court required Defendant to produce sections of personnel files in which the staff members made comments or complaints regarding staffing or patient care issues. The Court required the Defendant to produce any policies and procedures as designated by Plaintiff, subject to a protective order. Defendant was also required to produce any incident or investigative reports.

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William Johnson v. Army Distaff Foundation, a/k/a Knollwood Military Residence, law -05-791 (D.C. Superior Court, 2006)

In this nursing home negligence case Plaintiff sued for treble damages under D.C. Code section 44-1004.03, which permits treble damages for the violation of any D.C. regulations applying to nursing home care. This decision denied summary judgment allowing the issue of treble damages to be resolved by the Jury. The case was later settled and this decision remains good law.

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Dorothy Hawkins v. Sibley Memorial Hospital, Law 2013 CA 950 (D.C. Superior Court, 2013)

This is one of the most well-reasoned discovery decisions in a DC malpractice case. The Court rejected defendant’s argument that the peer review privilege set forth in D.C. code §44-801(b)(6) protected incident reports from discovery. Incident reports are created after an incident, typically one that involved an injury, but they are not produced as part of the chart. Plaintiffs routinely argue that incident reports are used to hide incriminating information that the healthcare provider would prefer to keep out of the chart. The Court also required Sibley to produce internal policies and procedures as well as limited personnel files, which were produced under a protective order.

Link

 

Yvonne Smith v. Rock Creek Manor, Law 454-98 (D.C. Superior Court)

In this D.C. nursing home malpractice case, Judge Mize admitted prior instances of neglect of other patients, where similar to the neglect of Plaintiff, as relevant to notice. At the conclusion of the case Judge Mize also applied the trebling statute under 44-1004.03, which tripled Plaintiff’s verdict in this matter. This was a case of first impression that was not appealed.

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