Virginia Lawyers Weekly VA Lawyers Weekly
Despite a “suspicious” omission of unfavorable medical information, a Norfolk judge refused to hobble a medical malpractice case because the plaintiff and his lawyer dragged their feet in supplementing discovery responses.
The defendant hospital claimed there was a “blatant abuse of the discovery process,” but the plaintiff’s lawyer – in an affidavit – described only an “oversight, not an attempt to hide” damaging details of an out-of-state doctor visit.
Norfolk Circuit Judge Mary Jane Hall chastised both the plaintiff and counsel Carlton F. Bennett of Virginia Beach for failure to take the discovery process seriously. Hall, however, refused to dismiss the lawsuit or block any challenge to the damaging evidence, opting instead for a fee award of $21,667. Bennett, through his own counsel, said the sanction has been paid and the case is going forward.
Hall’s March 9 order is Robbins v. Sentara Hospitals (VLW 020-8-046).
Causation damage
Plaintiff Richard Robbins underwent knee surgery at Sentara Virginia Beach General Hospital. He contends he suffered permanent injury from negligent bladder management by Sentara’s nurses.
Robbins’ disclosure of subsequent treating providers failed to include any reference to a visit to a urologist at Johns Hopkins in Baltimore for a second opinion on his bladder issues. The Baltimore visit was referenced in a Virginia urologist’s office note.
Spotting that note, a Sentara lawyer asked for a signed authorization to get the Johns Hopkins records. Robbins complied, but he changed the expiration date of the authorization so that it would expire in three weeks. That window proved too short after the first request went to the wrong office. It took more than four months for the defendant to get the records.
The records were a torpedo strike: “Discussed that his enlarged bladder capacity has likely occurred over the span of many years and that this is not the result of a bladder injury sustained from surgery and spinal anesthesia,” the Baltimore urologist had written.
The Johns Hopkins records were “obviously quite harmful” to Robbins’ theory that Sentara caused his bladder problems,” Hall said.
Sentara assumed the worst, according to Hall’s order. The hospital’s lawyers said Bennett had earlier told defense counsel there was nothing of substance in the records to delay the deposition and mediation.
“What is clear is that these records are in fact highly relevant, and Plaintiff and/or his counsel deliberately gave evasive and incomplete responses to discovery to avoid production of case dispositive evidence,” the hospital said in a motion for sanctions. “This is a blatant abuse of the discovery process and necessitates the imposition of sanctions,” the lawyers wrote, as cited by Hall’s order.
The hospital’s legal team is led by Mary Elizabeth Sherwin of Norfolk.
The delay had forced the cancellation of the plaintiff’s deposition and a scheduled mediation session.
Judge’s admonishment
Bennett hired Alan B. Rashkind of Norfolk as personal counsel in the dispute, and both Robbins and Bennett submitted affidavits. Bennett said the failure to produce identifying information about the Johns Hopkins doctors “was an oversight, not an attempt to hide the visit or its outcome,” Hall quoted from the affidavit.
Bennett said Robbins never mentioned the doctor’s statements about the cause of his bladder problems. Robbins said he did not believe he told Bennett about what the Baltimore urologist said about the cause of his problems.
Bennett said he never saw the Johns Hopkins records until Sentara shared them in support of the sanctions motion.
Sentara hammered the suspicious circumstances, Hall said, while Robbins and his counsel denied any intentional concealment. Hall said she had no basis to disbelieve the explanations of Robbins and Bennett.
“It might be suspicious and uncannily coincidental that this particular harmful record was the one that both the client and the lawyer forgot about, but the Affidavits state that the omission was inadvertent. The Court therefore has no basis to conclude otherwise,” Hall wrote.
But even inadvertent discovery failures can support a motion for sanctions, the judge continued. Bennett did not supplement Robbins’ interrogatory answer when the Johns Hopkins issue emerged, Hall said.
“Plaintiff’s counsel never outlines any attempt that he made to obtain that record despite his knowledge that it existed,” Hall wrote.
The judge wasn’t finished.
“Litigants need to take the discovery process seriously from start to finish. Plaintiff and his counsel did not here. They should have disclosed a visit to a world-renowned hospital for a second opinion about the very condition that caused Plaintiff to bring this malpractice suit; and once the omission came to Plaintiff’s attention he and his counsel should have addressed the oversight immediately. They did not,” Hall wrote.
Sentara asked for dismissal or to take the causation issue from the jury, but Hall said those remedies should be reserved for intentional concealment or misconduct. She determined to award fees related to the failure to disclose the Johns Hopkins record.
Robbins did not challenge the bills submitted by Sentara’s counsel, but Hall subtracted $1,326 for reviewing the sanctions order and preparing the summary of costs.
Speaking on Bennett’s behalf, Rashkind said afterward that the suspicions of nefarious conduct were unfounded.
“But the information should have been provided. It wasn’t. There was a sanction ordered. The sanctions have been paid. And the case goes forward,” Rashkind said.
The dispute should not obscure the contentions of the lawsuit itself, Rashkind added.
Sherwin declined to comment as the case remained pending.
A jury trial was scheduled for July 1, according to online court records.
