Category Archives: Articles

With You As You Grow

Setting up a business in Central Virginia can be a complex and long-term job. From the very first game plan, to successive growth positioning and opportunities for expansion, business leaders benefit from having qualified counsel on their side. They benefit from having internal leadership teams and partners, but they also rely on local business lawyers to give them advice on how to maintain success as they move forward.

It is often useful to think of a business in stages: it is born and it grows incrementally. With each step, the business owner must assess not only projected revenues and expenses, but a range of issues involving liability and risk.

Location, Location, Location

In many cases, Central Virginia businesses that start out in one particular location will be looking at additional areas for growth. For example, they may be assessing the business markets in places like Waynesboro, Staunton and Charlottesville, which each have their own specific business climates and real estate situations, or perhaps they may be interested in more rural, small towns in Albemarle, Rockingham, Nelson, Augusta or adjacent counties.

Growing a business intelligently means doing the research on these areas before branching out into a broader business footprint. Issues like real estate, local law and localized market research often play a role in making smart moves on the Central Virginia chessboard.


Another major issue in growing a business is developing a staffing model. Many small businesses face staffing challenges. They need to consider where their workers are coming from. For example, are they coming from low-skilled sectors in the area or from remote rural towns and villages with less infrastructure and fewer economic prospects? The business will need to look at how to integrate workers the best way possible and how to put in place the right training and resources to support their thriving enterprise. Staffing is an operational puzzle, but it is also a risk puzzle, and business lawyers help leaders plan for some of the risks involved in entering into employer contracts with individual employees.

Business Attorneys: Local and State Law and Compliance

In the above areas and other aspects of small business administration, local business leaders will look for the advice of qualified business lawyers who know what they’re up against. Local Charlottesville lawyers can help a business owner or manager determine how to structure a business in any given location, what things need to be checked off before final advancement stages are implemented, and how to maintain safe and secure businesses to serve customers.

For all of this and more, call MartinWren P.C. Our local Charlottesville office offers in-depth knowledge of the Central Virginia area, along with a dedication to serving our clients and keeping them informed about the legal aspects of their businesses. We know how to develop an enterprise according to local law and how to set business growth on a firm foundation. Let us help you stand the tests of time as a Central VA company.

Three Major Types of Slip and Fall Cases

Most Virginia injury lawyers are well-versed in the issues surrounding slip and fall accidents. Slip and fall cases are a major area of personal injury law.

Legal professionals throughout the country can research and find all types of case precedent with regard to slip and fall cases. As they progress through their research of the topic, they will undoubtedly find that there are different types of challenges that injury victims face, such as:

  • Broken hips
  • Strained and sprain muscles
  • Soft tissue damage
  • Damage to the face or cranium from falling head first
  • Injuries or conditions affecting motor abilities

Knowledgeable Injury lawyers must look at the entire context of a slip and fall case and determine why the accident happened, whether there is any third-party responsibility and how to get the injury victim the best outcome possible.

Three Major Categories of Cases

Slip and fall cases generally fall into a few different categories. Here are three of the most common examples.

Ice and Winter Weather Falls

Many slip and fall cases involve unusually slick surfaces from ice, sleet or freezing rain.

One of the essential questions in such cases is whether property owners or businesses have taken the proper and adequate steps to clear snow and ice, put down ice melt materials or otherwise protect the public.

Wet Floor Falls

Many of us have heard of slip and fall cases involving wet floors that were not properly marked — which is why today’s large, plastic yellow ‘wet floor’ signs are such a common sight in local businesses.

Other kinds of wet floor cases have to do with situations where water leaked from an appliance or structure, puddled or pooled on the floor or formed from condensation.

In these kinds of cases, a personal injury attorney will look in detail at the business or public space to see what was installed there to avoid such issues in an effort to determine the existence of third-party responsibility.

Uneven Walkway or Obstructed Walkway Cases

A third major category of slip and fall case concerns uneven walkways on which an injury victim stumbles and/or obstructions that have been left in someone else’s path. These cases can often be tied to specific negligence or inattention to public safety, which can dramatically change the results of the personal injury case. The idea that “someone just left something somewhere” is generally not an effective defense.  Business and property owners need to provide safe public spaces for visitors.

Get the Help You Need Today

In central Virginia, get help from the lawyers at MartinWren, P.C. We have a track record of helping Charlottesville, Virginia residents and others around the community with personal injury or wrongful death cases. Let our attorneys guide you through the process and explain all your legal options and rights under the law.

Did You Get There Okay? A Look at the Handling of Personal Injury Cases

It is true that personal injury attorneys spend a huge amount of time looking at the facts of a traffic accident or other injury scenario — but that is not all that they do for their clients. Professional and qualified injury firms look at the full context of the case from the very first days after the accident to guide their clients through what can be a troublesome, complex and frustrating process of filing a personal injury claim or otherwise pursuing litigation options.

For instance, a common issue raised with respect to a person’s injuries concerns the care they received. Injury lawyers must look at whether their clients received adequate care, whether doctors were unbiased in their diagnosis and the ordering of tests and procedures, and whether injury victims were generally well served by providers. That is why many lawyers start their consultations by asking about the victim’s care.  Did you get to a hospital quickly?  What doctor or doctors did you see? Did you find out if you have whiplash and/or any other soft tissue damage that could turn into chronic lifelong conditions?

The Long and Winding Road

In the wild mountain country of central Virginia, just getting to a hospital or facility can be a tricky task. When accidents happen beyond downtown areas of central Virginia population centers like Charlottesville, Waynesboro or Staunton, time can be a crucial factor in getting injury victims to a hospital where doctors can diagnose and treat them.

Still, although the physical road to care can be a tough one to travel, that is only the start of the care and recovery process. The injury victim has to get qualified medical evaluation and advice from doctors. Injury lawyers have to determine whether clinicians may have been biased by relationships with an insurance company or other factors. Some also advise injury victims on the best ways to get care and inform them about how treatment or other services can affect their finances.

In the process of following up on a personal injury case, skilled attorneys might ask the following questions:

  • How long did it take you to get initial care?
  • What questions did doctors ask about pain and symptoms?
  • What kind of insurance coverage to you have?
  • What safety precautions were in place or should have been in place to prevent the accident?
  • What about outside factors like weather, poor road conditions, etc.?

Attorneys typically ask such questions to cover all bases when it comes to ensure they have a sound personal injury case or claim with a plausible chance of working its way through local courts.

Get Help Today

In Charlottesville, Virginia and around Albermarle County, residents can get help from qualified Virginia injury lawyers at MartinWren, P.C. Our firm has experience helping central Virginia residents determine their legal options after they have suffered injuries in a traffic collision or other type of accident. We know how to help our clients get the best chance at obtaining compensation to protect their future financial outlook and get what they deserve in a personal injury case.

Top 6 Mistakes Made Settling Injury Claims Without a Lawyer

Top 6 Mistakes Made Settling Injury Claim Without a Lawyer

I’m a do-it-yourselfer.  If a room needs to be painted at my house, I want to do it rather than paying a painter to do it.  When it comes time for landscaping projects, I can get the job done.  Tile work needed in the bathroom?  I’ve got that covered.  Doing those projects saves money and it gives a great sense of accomplishment when a job is done well.

Virginia Lawyer Robert Byrne
Virginia Lawyer Robert Byrne

Given my own desire to tackle jobs around the house instead of paying an expert hundreds or thousands of dollars, I can certainly understand why many people are tempted to resolve their own personal injury claims.  After all, the thinking goes, if an insurance company offers you $10,000 to settle a claim, why on earth would you hire an attorney so that the attorney could get 33% or more of that $10,000? If you are able to resolve the claim without hiring an attorney, wouldn’t that make things a whole lot easier in the end?

These are good questions, and they deserve answers.  Perhaps the best way to answer these questions is to identify some of the mistakes that people make when they settle their personal injury claims without an attorney.  Stated simply, settling a personal injury claim is not like painting a wall or doing some other home improvement project where the eye can see if the job was well done.  With that in mind, here are the top six mistakes made settling injury claims without a lawyer.

1.  Settling for too Little Money.  When you are injured in an accident because of another party’s fault, it won’t be long before the other party’s insurance company contacts you.  They’ll want to take your statement and get you to say things that will undermine your right to collect money or diminish the value of your claim.  They may even offer a quick amount of money to you to settle the claim.

Using the above example, let’s say the insurance company offers you $10,000 to settle a claim where you break your arm in an automobile accident.  Your first thought may be that could keep all $10,000 instead of giving 33% or more to an attorney.  That sounds like it makes sense, but what if it is based on erroneous thinking?  What if, for instance, an attorney in that same case was able to get a settlement offer of $50,000 instead of $10,000?  Sure, you’d be sharing 33% of that fee, but your take-home check of 66%, or more than $30,000, would make the attorney’s fee a very worthwhile investment.

In addition to recognizing the true value of a case, an attorney can help find other insurance coverage that might not otherwise be obvious.  An experienced Virginia personal injury lawyer could help ascertain if there is available insurance coverage from other sources, such as underinsured motorist protection, med pay, employer policies, or other assets that can be used to provide compensation for your claim.  All of these factors will help increase the value of your claim.

2.  Not Having Confidence to Negotiate.  The best way to negotiate an insurance claim is to be aggressive.  The best way to be aggressive is to be confident.  The best way to be confident is to know your rights and to know the law.  Knowing your rights and knowing what the law entitles you to receive in a given situation will let the insurance adjuster know that you should not be taken lightly.  It is hard for an adjuster to see that you are aggressive and knowledgeable if you are not an attorney or do not have significant experience negotiating with an insurance adjuster.

Even if you are confident about the injuries you suffered and the reasonableness and necessity of the treatment you received, an experienced insurance adjuster may attempt to undermine your claim by raising certain legal defenses, such as contributory negligence, assumption of the risk, or mitigation of damages.  Or, the insurance representative may discount your claim by claiming that the jurisdiction where the accident occurred contains jurors that are known to be sticklers for personal injury lawsuits.  If you don’t have a strong knowledge and experience base to work with, an insurance adjuster will sense that quickly and seek to undermine your claim as a result.  In addition, without sufficient experience, you won’t be able to tell when the insurance company is bluffing you.

3.  Settling Too Soon.  You obviously want the personal injury case to be resolved as quickly as possible.  But many mistakes are made when injured parties are faced with an insurance company’s offers soon after an accident.  For example, say you have back pain after an accident, and your doctor suspects that you had a muscle strain that will resolve in a short amount of time.  But what if you settle and then learn that the injury is actually a herniated disk that requires surgery, such as a diskectomy?  What if your injury ends up being worse than thought and it keeps you from doing your job and providing for your family?  Once a case is settled, it is done.  It cannot be unsettled and you’ll need to live with the consequences, good or bad.  Because of that, it is in your best interests to not make an impulsive decision to negotiate with the insurance company to quickly settle your claim.

4.  Settling a Property Damage Claim Without Knowing It.  If you are injured in an accident and the insurance company offers you compensation for the claim, they will make sure the check and general release you sign ends all further claims you may have.   That means that you’ll most likely have to accept the check as settlement of any and all claims you have against the other driver.  This will create a problem if your car, motorcycle, or other vehicle is totaled or if it sustained damage that needs to be repaired.  In that case, the release you sign may lump the injury and property damage claims together and prevent you from seeking compensation for the damage to your car.

5.  Not Providing Proper Documentation for the Claim.  To make a claim for insurance proceeds, it is vital that you provide evidence to support your claim.  You’ll need to show that you suffered an injury, that the other party caused the injury, and that you are entitled to compensation as a result of the other party’s carelessness or negligence.  That means you will need to provide medical records, lost pay information, and a variety of other information that may be necessary to prove the claim.

Injured parties should be very wary if the insurance company is willing to settle a care without first receiving all of the supporting documentation.  An insurance company that is willing to provide a quick payment in that situation probably knows that the claim is worth much more based on their investigation, and they want to obtain a quick and dirty settlement before the injured party hires an attorney to maximize the value of the claim.

6.  Ignoring Valid Liens.  Virginia has anti-subrogration laws that prevent health insurers from seeking to be repaid for insurance benefits they provide.  In plain English, that means that your health insurance company cannot seek repayment from you for health benefits it pays for the medical care you received for your injuries.

But there are some exceptions to this rule.  Some privately funded insurance policies, for example, give the insurance company the right of “subrogation,” or the right to be repaid for your medical treatment.  The same right of repayment exists for certain types of government insurers, for Medicare  or Medicaid, or for certain healthcare providers that provide medical care without receiving full payment.  Those parties can protect their right to payment by asserting what is called a lien.

If you settle an injury claim without satisfying your lien obligations, you will likely face a demand for payment from your insurer or other health care provider.  And if that happens, you may find that some or all of your insurance settlement will be used to satisfy those liens.  That can be a rude awakening and it would have been far better to have hired an attorney that identified any outstanding liens and advised your steps in light of those liens.

In conclusion, you may be reading this because you or a loved one was in an accident and the insurance company has presented you with what seems to be a very generous offer.  You may be confused about this entire process of settling a personal injury claim, and you want to make sure you don’t make a mistake.  You are wise to look into this, and I hope you avoid these top six mistakes made settling injury claims without a lawyer.

If you’d like to consult with an experienced Virginia personal injury lawyer, please contact Robert E. Byrne, Jr. of MartinWren, P.C. at (434) 817-3100 or by email at  Our office is based in Charlottesville, but we represent personal injury victims all throughout Virginia.  We offer free consultations, we do not charge legal fees unless we recover money for you, and we are happy to meet with you at our office, your home, or even the hospital.

Check out our other articles regarding personal injury law, such as Do I Have a Personal Injury Case?, Injury Claims for Employees Hurt in the Workplace, and Types of Money Damages in Personal Injury Cases.

This article is for informational purposes only and does not contain legal advice.

Video of Estate Planning Seminar

MartinWren, P.C. attorney G. Raye Jones is a frequent speaker on a variety of estate planning, medicaid planning, tax planning, and elder law seminars. Below is a video of an estate planning, medicaid planning, and tax planning seminar that Raye presented to a Charlottesville-area audience.

For more information about attending one of Raye’s seminars, or for information about estate plans, Medicaid plans, elder law, or tax planning, please contact Raye at (434) 817-3100.

Medical Malpractice from Misdiagnosis

Medical Malpractice from Misdiagnosis

One of the most common forms of medical malpractice is from misdiagnosis.  As the name indicates, misdiagnosis occurs when a doctor or other health care provider incorrectly diagnoses or fails to diagnose a medical condition, illness, or disease.  That diagnostic error then causes the medical condition to go untreated, for treatment to be delayed, or for the incorrect treatment to be given.  A misdiagnosis can then cause the actual problem to get worse, lead to new illnesses or diseases, or even lead to death.

The Extent of the Medical Malpractice Misdiagnosis Problem

Misdiagnosis is a very real threat to the health and safety of hospital and healthcare patients.  According to recent studies, misdiagnosis occurs in approximately 10-20% of all medical treatment.[i]   Even if only 5% of patients are the victims of misdiagnosis in medical care, that means at least 12 million Americans per year are victims of an incorrect diagnosis or a failed diagnosis.[ii]  The consequences of this problem are severe: one fairly recent study indicated that approximately 28% of misdiagnosis cases or undiagnosed matters threatened the life of patients, caused permanent disability, or led to the death of the patient.[iii]   That means that as many as 160,000 patients per year suffer permanent injury or death from misdiagnosis.[iv]

Understanding Differential Diagnosis

Misdiagnosis presents a significant medical negligence problem for patients when doctors, nurses or other healthcare providers fail to diagnose a serious medical condition and mistakenly believe that a patient’s complaints, discomfort, and problems are caused by a less serious condition.  This failure to identify the more serious condition can often be the result of failing to follow the rule known as “differential diagnosis,” and this may result in medical malpractice.

Stated simply, when figuring out what sort of illnesses or conditions a patient is experiencing, doctors and other healthcare providers have a duty to rule out the “worst first.”[v]  That means that a physician “who is diagnosing a patient’s symptoms has a duty to rule out the most dangerous, treatable potential diseases first.”[vi] If a doctor fails to take this basic step and misses the most dangerous condition, the doctor may have committed medical malpractice.

Causes of Misdiagnosis

Medical Malpractice from misdiagnosis of medical conditions may result from a number of medical errors.  Common medical errors that cause a missed diagnosis include a doctor’s failure to properly review and follow up on test results or to properly examine diagnostic exams.  Some blame the prevalence of misdiagnosis on doctors and staff needing to devote a significant amount of time to paperwork and struggling with insurance companies to get paid for the care they provided. [vii]  Other causes may be miscommunication between the physicians, nurses, and other hospital staff, lack of proper training, or overworked staff.  Regardless of the cause of the misdiagnosis, most of these incredibly costly medical errors are preventable.[viii]

Most Common Misdiagnosed or Undiagnosed Conditions

The most common diseases and conditions that are misdiagnosed are pneumonia, congestive heart failure, acute kidney failure, cancer, and urinary tract infection.[ix]  Other common misdiagnoses are for heart attacks, stroke, acute aortic dissection[x], pulmonary embolism[xi], cancer (primarily breast cancer and colorectal cancer)

[xii], clogged arteries, infection, and heart attack.[xiii]   Depending on the circumstances, this misdiagnosis may give a patient the right to pursue a medical malpractice case for compensation.

Steps to Prevent Misdiagnosis

According to the National Patient Safety Foundation, there are steps patients can take to reduce the possibility of suffering a misdiagnosis in their medical care.  In a nutshell, patients need to be involved with their medical care, such as by knowing and conveying to health care providers the vital information necessary for a proper diagnosis to occur.  This means patients must be able to, among other things, describe their symptoms, explain their healthcare history, keep and provide records of past treatment they have received, have all of their healthcare providers aware of what the other providers are doing, and to follow up on diagnostic tests and exams to learn the results and what it means for health and healthcare.[xiv]

Legal Help for Misdiagnosis

If you or a loved one suffered a serious injury due to a healthcare provider’s misdiagnosis, incorrect diagnosis, or failure to diagnose an illness or disease, you may have a misdiagnosis medical malpractice case and the legal right to obtain compensation. For more information about a medical malpractice claim based on misdiagnosis, please contact Robert E. Byrne, Jr., a Virginia Medical Malpractice Attorney at MartinWren, P.C.  Bob can be reached at (434) 817-3100 or by email at

Virginia Lawyer Robert Byrne
Virginia Lawyer Robert Byrne

We are based in Charlottesville but handle cases throughout Virginia.  We offer free consultations and do not charge any legal fees unless we obtain a financial recovery for our clients.

This information is for informational purposes only and does not constitute legal advice.  Please see Medical Malpractice Claims in Virginia for more information about medical malpractice claims.


[i] Bringing Diagnosis Into the Quality and Safety Equations, Mark L. Graber, MD; Robert M. Wachter, MD; Christine K. Cassel, MD, MSc, JAMA 2012.


[iii] Diagnostic Error in Medicine, Gordon D. Schiff, MD; Omar Hasan, MD; Seijeoung Kim, RN, PhD; Richard Abrams, MD; Karen Cosby, MD; Bruce L. Lambert, PhD; Arthur S. Elstein, PhD; Scott Hasler, MD; Martin L. Kabongo, MD; Nela Krosnjar; Richard Odwazny, MBA; Mary F. Wisniewski, RN; Robert A. McNutt, MD, Arch Intern Med. 2009.


[v] Patrick Malone, Winning Medical Malpractice Cases, 2012, p.7.

[vi] Id.










Safety Issues Surrounding 250 in Pantops

A local movement for walkability in Charlottesville shows how vital certain safety provisions are in suburban neighborhoods or other busy housing communities. Reports from Charlottesville Tomorrow note residents of the Pavilions at Pantops, as well as others in nearby areas, are calling for safer crossings for U.S. 250 as it passes toward Interstate 64.

The Pantops area is located on the eastern edge of Charlottesville just above I-64. Many locals would like to see a crosswalk or pedestrian bridge at the intersection of 250 and Rolkin Road. Officials have admitted that walkability provisions and bike paths are insufficient for the area where the Virginia Department of Transportation estimates local traffic on U.S. 250 at over 30,000 vehicles per day. Additionally, the area has a history of pedestrian fatalities in the last few years. Now, local planners are looking at adding additional safety equipment in an attempt to address these safety concerns.

Walkability is Key: Public Safety in the Suburbs

The local issue in Charlottesville mirrors concerns in many other communities around the country. Too often, municipalities allow developers to build residential and commercial plans without adequately considering public safety when it comes to moving around the neighborhood in question. Many engineering plans seem to be “built for cars,” which goes against our natural inclination to decrease car travel to help with gas costs and the future of our environment. In other words, even as federal government agencies, scientific advocacy groups and others are asking Americans to conserve, they are asking some of us to take risks in places where the infrastructure truly fails to support pedestrians.

In areas where public planners failed to provide walkability, there are real results. Many in the area will make the safer choice and run all local errands by vehicle. Others will face safety risks when they are out on the street. These are real risks, with real consequences, and sadly, the most conscientious among us bear the brunt of the impact when it comes to these poorly designed spaces.

Virginia Personal Injury Lawyers: Representing Injury Victims

Walkability, bicycle and pedestrian safety issues are some of the things that personal injury lawyers consider when called to represent their clients in court. Some attorneys may choose to look at general public planning across the country, but they will also review the case within a local context and consider the past actions of public planners and others. In Charlottesville and Central VA, Virginia personal injury lawyers are looking to discover any instances of third-party responsibility or negligence that can help injury victims obtain just court awards. The goal is to collect compensation that victims need to handle lost wages and other issues surrounding their injuries.

In Charlottesville Virginia, local residents can seek assistance from the offices of MartinWren, P.C. Our Virginia personal injury lawyers help to assess claims and have extensive knowledge of what typically happens in such cases in the local area, as well as how these kinds of cases are handled throughout the court system. Call to discuss your case today.

Restrictive Covenants in Virginia Employment Contracts

Restrictive Covenants in Virginia Employment Contracts

Virginia is an at-will employment state, meaning that either an employee or the employer can terminate the employment relationship at any time, for any reason, or for no reason at all.[i]  Except in certain circumstances, any duties and obligations an employee has to an employer—and vice versa—end when the employment relationship ends.  For a variety of reasons, many employees and employers alter the nature of their post-employment relationship by entering agreements that contain restrictive covenants.

Virginia Lawyer Robert Byrne
Virginia Lawyer Robert Byrne

The most common and easily recognizable restrictive covenant in the employment context is a noncompetition agreement, or a noncompete.[ii]  Many individuals are not aware that there are a number of other restrictive covenants that may exist in addition to a noncompete agreement, such as nonsolicitation of employee provisions, confidentiality covenants, nondisclosure provisions, or nonpiracy provisions.  Employees who are not aware of these provisions may be surprised to learn that they oftentimes impose significant restrictions on post-employment conduct.

With this in mind, here’s a brief discussion of each of these types of restrictive covenants that commonly arise in employment contracts.

Nonsolicitation of employee provision.  A nonsolicitation provision forbids former workers from “raiding” their former team members, staff members, or other personnel.  Such nonsolicitation provisions prevent a “brain drain” that could occur if a key employee left the business.  These provisions can be valid in Virginia so long as they are reasonable in scope.

Confidentiality covenants.  Our service-based society often operates based on trade secrets and other intellectual property.  Certain employees with access to this sensitive information, typically inventors, executives, engineers, technicians, programmers, and others that work with secret information, are often required to sign agreements with confidentiality provisions.

Nondisclosure provisions.  Nondisclosure agreements, or NDAs, are agreements that protect the confidentiality of information that is presented to another for a limited purpose.  NDAs serve several of the same purposes of confidentiality agreements, but these are nevertheless often included in agreements with confidentiality covenants.

Nonpiracy provisions.  In addition to noncompete agreements, many employers have provisions that forbid former employees from contacting or soliciting their former customers, clients, or business contacts, or from doing any business with them.  In many respects, these nonpiracy provisions can be even more far reaching than covenants not to compete.  This is because nonpiracy provisions may not be limited by function or industry in the same way that a non-compete provision would be.

Covenants Not to Compete.  Last but not least, Virginia law permits employers to restrict an individual’s post-employment activities by having them enter a noncompete agreement.  Covenants not to compete are disfavored under Virginia law, which means that courts may refuse to enforce a provision that it determines is broader than necessary to protect an employer’s legitimate business interest.

Most of these provisions are, in at least some sense, disfavored under Virginia law as unreasonable restraints on trade.  If you are an employer or employee seeking to enforce or defeat a restrictive covenant through litigation, it is important for you to confer with an attorney who is experienced with drafting and litigating matters involving noncompetes and other restrictive covenants.

Restrictive covenants are important for employers and employees alike.  Employees need to be mindful of restrictive covenants for assessing their post-employment options and when negotiating a severance agreement.  At the same time, business owners want to ensure they adequately protect their intellectual property by wisely using restrictive covenants.

For more information about restrictive covenants under Virginia law, contact Charlottesville Employment Lawyer Robert E. Byrne, Jr. of MartinWren, P.C. at (434) 817-3100 or by email at

This post is for informational purposes only and is not legal advice.

[i] There are some exceptions to this rule, of course, such as when an employer terminates an employee for discriminatory reasons on the basis of race, ethnicity, disability, religion, or some other protected class.

[ii] See my article, “A Review of Noncompete Agreements in Virginia” for more information.


Medical Malpractice Claims in Virginia

Medical Malpractice Claims in Virginia

Virginia Lawyer Robert Byrne
Virginia Trial Lawyer Robert Byrne

According to the Inspector General for the Department of Health and Human Services, medical errors are the third leading cause of death in America, behind heart disease and cancer. That is staggering.  It shows that medical malpractice is a very real problem facing Americans.  Virginia is unfortunately not exempt from this problem, as medical errors cause injury and death here just as in every other state.

Medical malpractice claims in Virginia are a particular type of personal injury action.[i]  Just like personal injury actions based on negligence, to win a Virginia medical malpractice claim a patient must show that a doctor or other healthcare provider owes a legal duty to the patient, the doctor breached the duty, and the doctor’s breach caused harm or injuries to the patient.[ii]   These elements of a claim for medical malpractice in Virginia sound straightforward, but they often become complicated when viewed in light of a particular claim.

Because medical malpractice claims are commonly based on the negligence of physicians and healthcare providers, it might be helpful to compare a medical malpractice case to a typical personal injury case based on negligence.  A personal injury case can arise, for example, when someone driving a car disregards a red light and crashes into a pedestrian who has the right of way.  There, the driver had a duty to stop at the red light, but his breach of that duty caused injury to a pedestrian.

Medical malpractice actions are similar to, but a little different than, the red light example above.  Just like all drivers have a legal duty to stop at red lights and obey other traffic rules, doctors have a legal duty to follow certain safety rules that apply in the medical world.  The safety rules that doctors and nurses are required to follow are called “standards of care.” Depending on the type of situation a doctor faces, the standard of care requires doctors, surgeons, nurses, and other health care providers to provide care that a reasonably prudent doctor giving care in that situation would provide. Generally speaking, if a doctor provides healthcare that falls below or deviates from what a reasonable doctor would have done, the doctor will have breached the standard of care.

Establishing the Standard of Care

The plaintiff’s first challenge in a Virginia medical malpractice case is to provide evidence of what the standard of care is in their case.  That means the plaintiff must typically hire an expert witness to explain the standard of care in their case.  The expert will be required to explain what a reasonably competent doctor would have done in the situation presented by the plaintiff’s medical condition.  Except in very limited circumstances where the standard of care is understandable by a jury using common sense, a plaintiff’s failure to hire a standard of care expert may cause the case to fail.

Breach of the Standard of Care

In addition to showing what the standard of care is, a plaintiff in a medical malpractice case must show that their healthcare provider – a doctor, nurse, osteopath, surgeon, midwife, or other medical caregiver – violated that standard of care.  That means that the plaintiff must show that their medical provider either took actions that a reasonable doctor would not have taken, or failed to act in the same manner that a reasonable doctor would have.

Satisfying the standard of care does not require doctors, nurses, osteopaths or other healthcare providers to provide perfect healthcare or to guarantee that a surgery will go exactly as planned.  Rather, the standard of care establishes the minimum level of care a healthcare provider must give to a patient. If that healthcare provider meets that minimum level of care, the patient will not have a medical malpractice claim even if the patient does not obtain the results the patient desired.

As an example, the standard of care for surgeons will require that a surgeon and his or her staff remove all sponges and other foreign objects from a surgical site before closing the wound.[iii]  A surgeon will violate this standard of care when he or she leaves tools, sponges, or other items in the patient’s wound before closing the site.  If that happens, the defense doctor has most likely violated the standard of care, breached a duty, and formed the basis for a medical malpractice action in Virginia.


To get compensation for a medical malpractice injury, an injured patient must show that the healthcare provider’s breach of the standard of care caused an injury.  Using the previous example, it may be the case that a physician left a sponge inside a patient’s body and failed to remove that sponge during surgery, and it will most likely be the case that the retained object will cause the patient to develop a terrible infection.  In that case, it should not be extremely difficult for a plaintiff to prove that the retained object caused the infection.

Showing a “causal link” between the retained sponge and the injury is more difficult if the injury were, for example, a heart attack suffered by the patient after the sponge was retained.  The patient would face an uphill battle showing that the retained sponge set in motion a chain of events that caused the patient to suffer a heart attack.  That’s not to say it would be impossible, but it would certainly be considerably more difficult and the patient would need very persuasive expert witnesses to draw the connection between the retained sponge and the heart attack.


To have a medical malpractice case worth pursuing, a patient or his or her family must not just show that their doctor breached a standard of care that caused an injury, they must be able to show that the injury was significant enough to justify the stress, expense, and disruption that will a medical malpractice lawsuit will entail.  Medical malpractice lawsuits can be incredibly expensive, may take years to resolve, and oftentimes end in victory for the doctor or other healthcare providers.  Because of that uncertainty, an injured patient should consider pursuing a medical malpractice claim in Virginia when the injuries are severe enough to justify the difficulty involved.  Having a serious injury caused by medical malpractice will increase the chances of obtaining an amount of money that will justify pursuing such a claim.


If you or a loved one have suffered an injury due to medical malpractice, please contact Virginia personal injury attorney Robert E. Byrne, Jr. of MartinWren, P.C.  Our attorneys have experience handling medical malpractice cases and obtaining compensation for our clients, we offer free consultations, and we’d be happy to meet with you at a time and place that is convenient for you.  Please call Bob at (434) 817-3100 or email him at

This article is for informational purposes only and does not constitute legal advice.


[i] Howell v. Sobhan, 278 Va. 278, 283 (2009).

[ii] Virginia’s Medical Malpractice Act defines a “health care provider” broadly to include “a person, corporation, facility or institution licensed by this Commonwealth to provide health care or professional services as a physician or hospital, dentist, pharmacist, registered nurse or licensed practical nurse or a person who holds a multistate privilege to practice such nursing under the Nurse Licensure Compact, optometrist, podiatrist, physician assistant, chiropractor, physical therapist, physical therapy assistant, clinical psychologist, clinical social worker, professional counselor, licensed marriage and family therapist, licensed dental hygienist, health maintenance organization, or emergency medical care attendant or technician who provides services on a fee basis.”  Va. Code § 8.10-581.1.  The statute reaches even further, and includes professional corporations, partnerships, nursing homes, professional limited liability companies, or other similar entities that employ or are comprised of licensed health care providers or primarily render health care services.  Id.

[iii] There may be exceptions to this rule, such as if a medical device is supposed to be surgically placed or implanted and left inside the patient’s body.

UVA Family Commends Police Chief

Amid the ongoing activities surrounding the heartbreaking case of University of Virginia student Hannah Graham’s disappearance, members of the family are expressing gratitude for the work of the local Charlottesville Police Department and Chief Timothy Longo.

In the weeks since the UVA student went missing September 13, police have been trying to handle the case with care, including looking at a “person of interest” in what is currently an open case. In a letter in the Daily Progress, the father of the missing student commends Chief Longo for “passion and purpose; his articulate, well-considered, forceful and humane words.”

Public Leaders and Public Safety

Even in the worst kinds of challenges that a community can face, public leaders with positive images provide help to those whom they serve to connect and work toward resolution. This is true in many different kinds of cases, and it is something that is evident to not only the first responders and public planners who administrate, but to other professionals such as personal injury lawyers who work toward their own goals from different vantage points.

It is evident to experienced attorneys and other legal professionals that the outlook and leadership of law enforcement and municipal leaders makes a big difference in all sorts of cases where a family seeks protection from the law and assistance from a legal system. What those in power do, including municipal leaders and the heads of police departments, sets the stage for resolution and sets a tone for how a community handles adversity. The right kind of leadership considers the safety and care of local residents; the wrong kind of leadership often fans the flames of contention, whether it is through negligence and inattention to public safety, or even callous comments and mentalities that show a disregard for the citizens whom appointed and elected public officials serve.

Virginia Personal Injury Lawyers: Standing with Families

Like public leaders, local law firms stand with families as they struggle with events and circumstances beyond their control. The guidance that these firms give is different, essentially based on the needs of the clients they represent and on the realities of bringing injury or wrongful death cases through local courts. Through it all, a qualified and dedicated firm will keep clients informed, listen to what they say and work closely with them from the beginning to the end. At its core, the work that these Virginia personal injury lawyers and other local attorneys do is based on empathy for clients, on respect for what they have gone through and on a relentless effort to help them access their rights after a tragic event has rocked their families.

Those seeking justice for family members in Virginia communities can rely on the Virginia personal injury lawyers at MartinWren, P.C. to assist in evaluating claims and bringing them forward according to a client’s rights under the law. Call to get more information about how this process works in the state of Virginia.