Personal injury attorney Douglas A. Barry

Giving back and serving our communities is a deeply held value at the Allen Law Firm. When I joined the firm in 1996, I came with a strong Government and public service background as well as a commitment to giving back to the community that fit well with the Firm’s values. For the first half of my career, I was an attorney in law enforcement, as a Special Agent in the Federal Bureau of Investigation and also as a prosecutor (Commonwealth’s Attorney in two different jurisdictions in Virginia). During the time since I joined Allen & Allen as an attorney, then made partner, and then was chosen as President, I have emphasized and expanded how the Firm could better serve our community.

Under my direction, I expanded the program where our Firm participates in community events and charities. We contacted the public schools in areas we serve, and greatly increased the number and frequency of times that our personal injury attorneys speak at many different school functions. As a member of the National Ski Patrol, I had an emergency services background. So we also contacted emergency medical services, rescue squads, fire departments, and police and sheriff Agencies. Over time, as the program became more widely known and credible, we were invited to speak to more and more groups. With my law enforcement and emergency medical background, I personally gave many talks to rescue squads, fire departments, and police and sheriff agencies.

When I speak to these groups, I am usually asked to talk about topics like liability, immunity, criminal law as it pertained to their jobs, and assumption of the risk. I often also give various safety and protective tips I have learned over the years that I think will help them.

Our Firm is now celebrating its 100th year since our founder George E. Allen, Sr. began his practice in Virginia. I’m proud that the Firm’s speaker program has grown immensely. I still take time to personally talk to rescue squads, fire departments, and police and sheriff agencies, sometimes traveling two evenings a week to speak to groups in different areas of Virginia. I’m honored that these sessions are sometimes videotaped to be shown as training tools to various EMS and rescue groups. I enjoy traveling to give talks to other groups also, and because every year there are some major changes in the law, I always have something new to say.

Currently I serve on the Faculty of the Emergency Medical Services Symposium for the Commonwealth of Virginia, and have spoken to this group twice, once in Norfolk, Virginia, and once in Bristol, Virginia. My goal in working with Rescue Squads, Fire Departments and EMS workers is to aid in making our communities a safer place, to help educate the dedicated public employees and volunteers in these organizations, and to give back myself as a public servant. Why give back? There are many great men and women, many accomplished thinkers and philosophers, who ultimately came to realize that public service, service to others, and just helping others is our worthiest goal. For instance:

“Our prime purpose in this life is to help others.” The Dalai Lama

“Everybody can be great… because anybody can serve. You don’t have to have a college degree to serve. You don’t have to make your subject and verb agree to serve. You only need a heart full of grace. A soul generated by love.” Martin Luther King, Jr.

“The best way to find yourself is to lose yourself in the service of others.” Mohandas K. Gandhi
“I don’t know what your destiny will be, but one thing I do know: the only ones among you who will be really happy are those who have sought and found how to serve.” Albert Schweitzer
“It is one of the most beautiful compensations of life, that no man can sincerely try to help another without helping himself.” Ralph Waldo Emerson

About the Author: Doug Barry is the president of Allen & Allen and a personal injury attorney in Richmond and Fredericksburg, Virginia

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Author: Attorney Paul D. Hux

Attorney Paul D. Hux

There are many famous people in the world today, and with media, the internet and the other multitude of publications, we think we know everything there is to know about these people. However, there are a number of movies actors, television personalities, sports stars, well known politicians and musical entertainers who all have something in common that very few people realize. This common thread is that they graduated from law school. The following is a list of some of the most well known people that have received their law degrees and why they are well known.

1. Barack Obama, in 1988 he started law school at Harvard Law School. He became the first African American president of the Harvard Law Review in 1990. Obama graduated magna cum laude 1 from Harvard College in 1991. He then practiced civil rights law in Chicago and taught at the University of Chicago Law School. Obama ran for the Illinois State Senate and was elected in 1996. He also was elected as a United States Senator from Illinois, and served from d January 2005 until he resigned after his election to the presidency in November 2008. He is the 44th president of the United States and the first African-American to hold this office.

2. Joe Biden, our current Vice-President, graduated from the University of Delaware in 1965 and from law school at the Syracuse University College of Law in 1968. Biden moved back to the Wilmington, Delaware area and set up his own law firm. He practiced law until 1972 when he was elected to his first U.S. Senate seat. Since 1991, Biden has been an adjunct professor at the Widener University School of Law, where he teaches a seminar on constitutional law.

3. John Cleese of Monty Python Flying Circus fame earned his degree in law at Downing College, Cambridge. He never actually practiced law. He has developed into a well known director, writer, comedian and actor. He is best known for his roles in the films A Fish called Wanda, Monty Python and the Holy Grail and Monty Python’s Life of Brian. He currently holds the position of an honorary professor at Cornell University.

4. Tony La Russa, who played major league baseball for 10 years and currently manages the St. Louis Cardinals, went to law school at Florida State University College of Law following his retirement from Major League Baseball. He graduated in 1978 and pass the bar exam in 1979. He never practiced law. He began managing in the minor leagues in 1978. He has managed in the big leagues ever since 1979. He has won multiple “Manager of the Year” awards and is one of only two managers to win the World Series with teams from the American League and National League.

5. Jerry Springer received his law degree from Northwestern University in 1968. He then worked in politics as an aid, had a short lived attorney position in Cincinnati, worked on the city council, then became mayor of Cincinnati in 1977. He started his broadcasting career as a news anchor and political for TV and radio.

6. Howard Cosell, who was best known as one of the announcers that started on Monday Night Football in 1970 and for his ongoing relationship with Muhammad Ali, received his JD 2 from the New York University School of Law. He was the editor of the law review and passed the New York Bar exam at age 21.

7. Geraldo Rivera, a journalist, reporter, and talk show host, is a graduate of the University of Arizona and of the Brooklyn Law School in 1969. He started his reporting work in 1969 at WABC. He began contributing to national ABC news programs, such as Good Morning America and 20/20. He joined the Fox News Channel in 2001.

8. Julio Iglesias, a professional singer, early on was a world class soccer player with Real Madrid as a goalie. He then studied law at Complutense University in Madrid. During this time, he was injured in a serious car accident and was bedridden for many months. While recovering, one of his nurses brought him a guitar and he began to play, write and sing. In 1968, he won the Benidorm Festival with a song he composed himself, “La vida sigue igual,” and signed with Discos Columbia records. In 1972, to please his parents, he returned to law school and received his law degree from the law school at Cambridge University. He is Spain’s best-selling singer and the best-selling Spanish singer of all time.

9. Nelson Mandela, the South African activist who spent most of his adult life in prison for opposing the apartheid regime of his country, was the first post-apartheid President of South Africa. He started working as a clerk in a law firm while taking correspondence courses with the University of South Africa. He was awarded his Bachelor’s degree in 1941. He then enrolled at the University of Witwatersrand to study law and received his law degree there. He was instrumental in setting up South Africa’s first all-black law firm. He continued to practice until the 1950’s when he changed his focus to the people of his country.

10. John Grisham, best-selling American author, graduated with an accounting degree from Mississippi State University. He then attended University of Mississippi School of Law and graduated in 1981. He practiced law for nearly ten years in the small town of Southaven, Mississippi, specializing in criminal defense and personal injury litigation. In 1983, he was elected to the state House of Representatives and served until 1990. 3 Grisham, during this time, would work on his first novel in his time, often writing before heading off to the office, after coming home at night, and even during court room breaks. He spent three years writing A Time to Kill and finished it in 1987. It was printed and published in 1988. He has written a total of 23 books since 1987 of which nine have been turned into movies. His books have been published in many languages and over 250 million sold.

Several others that are fairly well known are Jay Bilas, a college basketball analyst for ESPN since 1995, former professional basketball player and college basketball at Duke University, who graduated from Duke Law School in 1992; Steve Young, current NFL analyst, Hall of Fame quarterback who played football in the NFL and won a Super Bowl championship in 1995, who received his law degree from J. Reuben Clark Law School at Brigham Young University in 1994; Andrea Bocelli, renowned operatic tenor, who graduated from the University of Pisa with a law degree and worked for a year as a court-appointed defense attorney before giving up the law to focus full time on singing; and Fidel Castro, who attended law school at the University of Havana and, after graduating in 1950, worked on behalf of the poor in Havana, Cuba. Soon thereafter he moved into politics and, after a revolutionary overthrow of the government, became Prime Minister from 1959-1976 and then President of Cuba from 1976 to 2008.

2 - “JD” or J.D.” stands for “Juris Doctor”, which means “Doctor of Laws” or “Doctor of Jurisprudence”. It is the degree for the primary professional education for lawyers in the United States, and is generally a three year program. Interestingly, it was first given at Harvard Law School. See http://en.wikipedia.org/wiki/Juris_Doctor.

3 - In Mississippi, being a state legislator is a part-time job. The same is true in the Commonwealth of Virginia.

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Author: Attorney Malcolm P. McConnell

Attorney Malcolm P. McConnell

If you have cancer that has been allowed to spread and threaten your life because of medical negligence, the answer is “yes.” But it may shock you to learn that, only a few years ago, the answer was “no.” Until recently, your right to sue could expire before you even knew you had a case! How could something so unfair be the law in Virginia?

All claims for personal injury in Virginia, including medical malpractice cases, are subject to time limits. 1 Although each case can be different, the general time limit for filing an injury lawsuit in Virginia is two years after the injury. 2 If the lawsuit is not filed within those two years, the right to sue is lost forever. In an automobile injury case, it is easy to figure out when the two year period begins to run, because the negligence and the injury are simultaneous. But when a doctor negligently misdiagnoses cancer, or fails to communicate a diagnosis to a patient, the physical injury does not occur until sometime later, as the disease progresses. In such a case, the patient will be totally unaware of the disease, and therefore unaware of its growth or spread. Nevertheless, that two year time period is slipping away. Until recently, if more than two years passed without the patient filing a lawsuit – even if the patient is unaware of the disease – the right to sue was lost forever.

I recently represented a woman in exactly that unfair situation. Five years before, she had had her uterus removed. Although the uterus contained cancer, she was told she was cancer free and placed on estrogen replacement therapy. Five years later, she was diagnosed with recurrent uterine cancer. The five-year-old pathology slides from her uterus were reviewed, and she learned that she had had cancer all along, but had never been told. In fact, the estrogen she had been taking for five years had actually “fed” her cancer, and would never have been given to her if the diagnosis had been known. Although I tried to make a claim for her, she died soon after and the claim could not survive a statute of limitations defense. Her right to sue had expired before she even knew she was sick.

While injustice may be corrected in the courtroom, it may be prevented in the legislature. After my client paid the ultimate price for physician negligence, I drafted a new law for cancer victims protecting their right to sue until one year AFTER they are informed of their illness. I am proud to say that the law passed both houses of the General Assembly without a single “no” vote at any stage of the process. In fact, when I explained the bill to one member of the House of Delegates, he was surprised and asked, “That’s not the law already?”

The new law went into effect on July 1, 2008. As a medical malpractice lawyer at the Allen Law Firm, I am proud to represent victims of medical negligence in the courtrooms, the legislature, or anywhere their rights are at stake. Our Firm is committed to the representing the rights of the individual in the legislature as well as the courtroom.

About the Author: Mic McConnell is a Richmond medical malpractice attorney. With over 20 years of experience, Mic has handled challenging cases in almost every medical specialty for over twenty years.

2 - See Va. Code §8.01-243.

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Attorney Tammy S. Ruble

Author: Attorney Tammy S. Ruble

Virginia has already been hit with the first big snow storm of the season and, as I write this, another storm is pending. Winter weather brings with it opportunities for outdoor fun but also the potential for great danger. Whether you clap your hands with glee at the first falling snowflake or are huddled before the fire dreaming of Virginia Beach in July, a little preparation will help make the winter safer.

Start by familiarizing yourself with the meanings of the various weather warnings you might hear. A “winter storm watch” means a winter storm is possible. A “winter storm warning” means a winter storm is coming your way. A “blizzard warning” means it’s time to get inside immediately. According to www.weather.com, a blizzard is a weather event lasting at least three hours which includes low temperatures (usually below 20 degrees Fahrenheit), winds of at least 35 mph, and snow falling or blowing at a rate which will generally reduce visibility to less than a quarter of a mile.

To help protect yourself and your family at home, make sure you have extra blankets available and that each member of your household has a warm coat, gloves or mittens, a hat, and water-resistant boots. The Red Cross recommends you prepare an emergency supplies kit, including the following items:

• First aid kit and any necessary prescription medications
• Battery operated NOAA weather radio, flashlight and extra batteries.
• At least three days’ worth of foods which require little or no water and no refrigeration or preparation. Think about items such as dry cereal, ready to eat soup, granola or energy bars, peanut butter and canned tuna. Check these food items periodically to make sure they have not expired.
• At least three gallons of bottled water per person (enough to last three days).

There are Family Preparedness Plan 1 forms available on-line that will help you be prepared. If you like, you can save the Plan you choose on-line and easily make later changes, or you can simply complete and print it and distribute a copy to your family members. The example noted in the footnote includes several comprehensive lists of items to keep in the event of an emergency.

Once the storm hits, do not go outside unless it’s absolutely necessary. Dress in light layers – several light layers will keep you warmer than one heavy layer. If you must shovel snow, be extremely careful and take frequent breaks to rest from the exertion. Watch for any signs of hypothermia or frostbite as both conditions can cause permanent damage. Signs of frostbite include burning, numbness, tingling or itching. The affected areas may appear white or frozen. Symptoms of hypothermia may include extreme shivering, numbness, stiffness, stumbling, drowsiness, slow speech and exhaustion. If you see these symptoms, seek medical attention immediately.

Don’t drive anywhere unless absolutely necessary. Fill your gas tank prior to any storm, which will help keep the fuel line from freezing. Advise other people of the route you plan to take; should you become lost or stuck, this will aid searchers. Tie a brightly colored ribbon to your antenna which will help rescuers spot your vehicle in the snow. Stay with your vehicle and run the engine’s heater for about ten minutes every hour, otherwise leaving the engine off to conserve gas. Make sure the exhaust pipe is cleared of snow before starting the vehicle. Never leave on a road trip without making sure you have extra blankets, water and food with you.

Of course, snow isn’t required for winter weather to be hazardous; extreme cold alone can be very dangerous. The wind chill temperature refers to how cold it actually feels to people outside and can be considerably lower than the temperature reading on the thermometer. For example, the National Weather Service indicates that a wind of 20 miles per hour will drop a temperature of 30 degrees to a wind chill temperature of 17 degrees, and a temperature of 15 degrees to a wind chill temperature of minus 2 degrees! 2 Be sure you bundle up warmly before going out when the wind chill temperature is low, regardless of what the thermometer says.

Whether you revel in the winter, or are anxiously looking for the first signs of spring, a little preparation and a little extra caution will go a long way towards making the winter weather safer and more enjoyable.

About the Author: Tammy Ruble is an attorney with the personal injury law firm of Allen & Allen.

2 -The National Weather Service has created a chart which shows the dramatic effect of adding wind to low temperatures; see http://www.nws.noaa.gov/om/windchill/.

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Attorney Charles Littlepage Allen

One hundred years ago, in 1910, my grandfather, George E. Allen Sr., a founder of this law firm, handled his first personal injury case. As a third generation family member of this law firm, I reflect back occasionally on the influence my grandfather and his legal career have had upon me. When I first began practicing law 25 years ago, attorneys and judges always spoke well of my grandfather. He was often cited as a shining example of professionalism who set a standard to which all successful attorneys should aspire. My grandfather was so passionate and committed about the practice of law late in his life when he wrote his memoirs he entitled the book The Law As A Way of Life.

At the beginning of my career, I experienced a surprising moment in my legal education during the first year in law school. I was touring the law library with the other first year students when I paused to randomly pull a volume of the Virginia Reporter off one of the bookshelves. The Virginia Reporter contains the written opinions of cases decided by our Virginia Supreme Court since 1790; there are hundreds of volumes of these books in the library. The particular book I selected fell open in my hands to a page concerning a case that my grandfather himself argued before the Supreme Court! What are the chances that among the thousands of cases reported in the hundreds of volumes of the Virginia Reporter I would stumble upon one involving my grandfather? Whether merely coincidence or fate, this experience often comes to mind when I research other cases in the Virginia Reporter, and remind me of the rare privilege and responsibility I enjoy of trying to perpetuate the legacy created two generations ago by my grandfather.

About the Author: Charles Allen is a Richmond personal injury attorney with Allen & Allen.

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Attorney Matthew B. Murray

Author: Attorney Matthew B. Murray

Don’t you love those flashy, huge rims that dress up cars today? Dubs, blades, speeds, spinners and twenties are beautiful and add personality that distinguish my car from the next guy who has the same make and model. 1

But those flashy wheels come with a risk. There have been many instances of after-market wheels collapsing or breaking causing serious car crashes. Rims available from suppliers other than your vehicle’s manufacturer are after- market products, products not manufactured specifically for your vehicle. Wheel rims are typically forged or cast aluminum. For high stress applications like automobile wheels, aluminum is blended with other materials for strength. The integrity of the aluminum in wheels depends on the integrity of the manufacturer.

Many of these aftermarket wheels come from overseas where manufacturing standards may not be monitored as carefully as they should be. Overseas manufacturers are often difficult to identify. A wheel failure causing a crash can leave injured victims without recourse against the responsible parties.

New cars leave the showroom with 13” to 15” rims and tires specifically designed for that car. Manufacturers determine the specifications for safe performance and handling of vehicles after extensive testing. With after-market wheels, often as large as 20”, the stability and handling of a car can change dramatically.

The computers and electronic systems in all modern cars depend on feedback from the wheels. If larger wheels are added without adjustment to the computer, the system cannot interpret incoming data. Speedometers are thrown off and anti-lock braking can be impaired. Larger wheels can increase wear and tear on steering and suspension components. Since larger wheels are heavier than stock wheels, they slow acceleration, extend stopping distances and impact emergency maneuvering. All of these changes increase the risk of a crash.

If you are considering dressing up your car, don’t do it in the back yard. Go to a reputable tire shop where adjustments and modifications to suspension and braking systems can minimize the risk of adding dubs, blades, speeds, spinners or twenties. 2

If you believe a car crash was caused by a defective product such as an aftermarket wheel, it is critical to preserve the evidence. Don’t hesitate to call Allen Allen Allen & Allen. We have a wealth of experience in product liability cases.

About the Author: Matt Murray is a Charlottesville car accident attorney with the personal injury law firm of Allen & Allen. Matt has over 30 years of experience helping clients in the Charlottesville area.

2 - For more information, see www.insideline.com/features/the-danger-of-dubs.html.

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Attorney Melinda H. South

Author: Melinda H. South, Attorney

Owning a dog brings great joy but also great responsibility. Rarely does an owner want to acknowledge that their favorite pooch has the potential to harm someone. Many states have adopted state-wide laws regarding the responsibilities of a dog owner to control their dog; these laws are generally referred to as “leash laws”. 1 In Virginia, there is a two-part system. First, there is no state-wide “leash law” but the law empowers local jurisdictions (cities, counties and towns) to adopt regulations concerning control of certain breeds of dogs or at certain times of the year. These local ordinances have the effect of law and are called “running at large” ordinances. 2 Localities are also empowered to enact ordinances that require a dog owner to have a dog under “immediate control” which means on a leash or under voice control. 3 These local ordinances also have the effect of law and are called “leash laws”.

Most local jurisdictions in Virginia have some adopted some kind of “leash law”. 4 Usually these laws require that you, as the owner of your dog, while on your property, must keep your dog under control, which means that your dog is confined to the house, a dog pen, on a secured leash, or generally under immediate voice control. If you take the dog off your property, the law usually requires you have your dog on a leash or under immediate voice control. It is advisable to have the dog on a leash.

The second part of the Virginia system is a state-wide law governing “dangerous dogs”. 5 Under specific circumstances, if a dog has bitten a person or another dog previously, then the dog is deemed a “dangerous dog”. There is a “Dangerous Dog Registry”. However, this state-wide law is relatively ineffective due to the large number of exceptions. For instance, if the dog bite is determined not to be “serious” by a veterinarian, the law doesn’t apply. If the bite takes place on the property of the dog owner, then the laws doesn’t apply. And there are many other exceptions.

The potential harm from not having your dog on a leash or confined may come in a form other than your dog biting a person. The harm could come from your dog wanting to play and knocking down a bicyclist or motorcyclist. Or the harm could come from scaring or running into a person out for a walk who falls and is injured. In addition, there is also the risk of your dog of being hurt if allowed to run loose.

In general, Virginia is referred to as a “one bite” state or having the “one bite rule” when determining the civil liability of the owner of a dog. This principle says that in order to hold a dog owner responsible for his dog biting someone, the victim must show that the dog has bitten prior to this occasion. (The idea is that the owner is then on notice that the dog might bite again). Actually, Virginia law is broader than this. Even if the dog has not bitten before, if the dog has shown “inclinations or characteristics” in its behavior that would otherwise put the owner on notice the dog is likely to cause injury, then a dog owner has a duty to use ordinary care to prevent an injury. 6

So, under this approach, a victim must show that the dog behaved viciously or aggressively on other occasions, and the dog’s owner knew of this behavior. This evidence may be obtained by one or more of the following ways: talking with the owner of the dog, his neighbors, checking with animal control, postal employees, FedEx or UPS drivers, and possibly obtaining the records from the dog’s veterinarian.

However, leash laws and ordinances may create liability for a dog owner even though the owner has no reason to know the dog is likely to bite. 7 If a dog is allowed to run loose in violation of such an ordinance, or if a dog owner negligently allows the dog to get loose, the owner is liable for injury caused by the dog off the premises of the owner. 8 To determine if your city or county has a leash law, check http://www.municode.com. If your locale is not listed here, call Animal Control for your area and ask about any “running at large” or “leash law” regulations.

However, Virginia law also says that even if the dog has never bitten before, an owner is on notice of the “general natural inclinations” of the breed or class of dog, and if those “inclinations or characteristics” are of a kind likely to cause injury, then the owner has a duty to use reasonable care to prevent injury. Certain breeds, especially if the breed is one bred to be an attack or fight dog, and the dog is raised that way, are naturally vicious and dangerous. This is often called notice of the “propensities of the breed.”

In summary, the Virginia legislature has passed laws to protect the citizens of our state from dangerous or vicious dogs, and has given the authority to pass more stringent leash laws to the localities. Know the law of your locality and please be a responsible dog owner

If you have been bitten or suffered injury due to a dog, you should consult an attorney to determine what your rights are.

About the Author: Melinda South is a Richmond attorney with Allen & Allen. The Allen Law Firm is experienced in handling dob bite cases and helping injured victims.

2 - Va. Code sec. 3.2-6538.

3 - Va. Code sec. 3.2-6539.

4 - For example, ordinance in the City of Richmond, Virginia: “Sec. 10-172. Restraint or confinement of dogs. All dogs shall be kept under restraint or confined in an enclosure, except as otherwise provided in state law.” See http://municipalcodes.lexisnexis.com/codes/richmondva/. (See also Chapter 10. “Animals” generally).

5 - Va. Code sec. 3.2-6540 and 3.2-6542.

6 - Ignoring the fact that, at best, all dogs are domesticated wild animals, the law in Virginia states that a dog owner is not responsible for a bite by his dog unless or until the dog owner knows that the dog is aggressive and is likely to bite. (Some other states have laws that hold a dog owner is always responsible for the damage caused by his dog, which is based on the idea that it is in the nature of dogs to bite, so a dog bite is never a surprise to the owner).

7 - See Butler v. Frieden, 208 Va. 352, 158 S.E.2d 121 (1967), where the Virginia Supreme Court held that a city ordinance (“leash law”) set the standard of care for a dog owner and if it was violated, that was negligence by the dog owner.

8 - For instance, see Stout v. Bartholomew, 261 Va. 547, 544 S.E.2d 653 (2001). In that case, although a jury awarded damages to someone bitten by a dog, the trial court entered judgment for the dog owner and the Virginia Supreme Court agreed. The dog had escaped from an invisible fence and caused a motorcyclist to crash. However, noting that (1) the dog owner had successfully used an invisible fence with a previous dog; (2) this dog had never escaped the invisible fence before; (3) an invisible fence is not a method of fencing that is inherently any less reliable than any other method; (4) the dog had not shown propensity to attack cars or motorcycles or people, the Virginia Supreme Court held that there was no evidence that the dog owner did not act reasonably in restraining the dog or that the dog owner had any notice that the dog was likely to cause injury.

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Attorney Nathan J. D. Veldhuis

Author: Attorney Nathan J. D. Veldhuis

Sovereign immunity is the legal principle that the government (and its branches, departments, agencies and employees) cannot be sued or held legally responsible for their actions. This legal principle comes from the old English law that held the king was divinely chosen and therefore could do no wrong. As a result, the king could not be held accountable for his actions nor could his representatives. When the United States was founded, this principle of British law was adopted. Since early colonial times, however, the courts and congress have limited the original broad scope of this immunity, as have the individual states. However, except where limited by judicial decision or by law, the principle of sovereign immunity remains the law.

One area of sovereign immunity that has received a lot of attention by the courts in Virginia is whether, and under what circumstances, a doctor employed by the Commonwealth of Virginia is entitled to a sovereign immunity defense when sued for medical malpractice. The courts have held that whether a doctor is entitled to the sovereign immunity defense depends on the consideration of four factors. First, courts will look to the relationship between the doctor’s functions and the Commonwealth’s important governmental objectives. The stronger the relationship between the two, the more likely it is that a court will find that the doctor is protected by sovereign immunity. Second, courts look to the Commonwealth’s interest and involvement in the doctor’s function. Third, courts will consider whether the doctor’s functions involved the use of judgment and discretion. Fourth, the courts will look to the degree of control and direction exercised by the state over the doctor. Let me explain what this means in more detail.

In James v. Jane, 221 Va. 43 (1980), the Virginia Supreme Court fashioned a four part “balancing test” to determine when a doctor employed by the Commonwealth is protected from medical malpractice claims by the doctrine of sovereign immunity.

The first factor that a court will consider is the relationship between the doctor’s activities and the important governmental objectives of the Commonwealth. James, 221 Va. at 53. A strong relationship between the two will weigh in favor of sovereign immunity covering the doctor. Lohr v. Larsen, 246 Va. 81, 85 (1993). Determining the strength of this relationship will involve a fact-intensive examination of the circumstances of the doctor’s employment. For example, in James, 221 Va. at 46, the Virginia Supreme Court was confronted with the question of whether doctors employed by the University of Virginia Medical School were entitled to a sovereign immunity defense in relation to a malpractice claim brought by patients that were treated at the university hospital. The Court noted that although the Commonwealth had important governmental objectives in running the medical school, the functions that the defendant doctors were performing did not bear a strong relation to those objectives. Id. at 54. The “paramount” objective of the Commonwealth was to operate a good medical school staffed by competent professors, yet the functions the doctors were alleged to have performed negligently related to an entirely different end – the treatment of patients. Id. Because of the disconnect between the doctors’ duties in question and the Commonwealth’s objectives, the court found that the doctors’ claim for a sovereign immunity defense was weakened.

The second factor that courts consider is the Commonwealth’s interest and involvement in the doctor’s functions. Id. at 53. Courts seem to require that the Commonwealth have more than just a generalized interest in functions being performed by the doctor. Instead, the Commonwealth must have a “great” interest in the doctor’s practice and must be specifically involved therein. Lohr, 246 Va. at 85. For example, in James, 221 Va. at 53, the court noted that while the Commonwealth had some interest in the defendant doctors’ adequate treatment of their patients, it had this same concern for all doctors practicing in Virginia. The Commonwealth’s interest in what the specific doctors of the case were doing was therefore slight, weighing against their claim of sovereign immunity. Id. at 54. The situation in Lohr, however, provides an illustrative contrast. In that case, the defendant doctor worked at a state clinic which operated for the purpose of providing medical treatment for economically underprivileged patients. Lohr, 246 Va. at 86. Because the state was specifically involved in achieving this objective through the defendant doctor, the court found that this factor weighed in favor of the doctor’s claim of sovereign immunity. Id. Thus, courts look for the Commonwealth’s interest and involvement that relates to the doctor’s activities in a specific, rather than a generalized, way.

The third factor that courts will consider is the amount of judgment and discretion that the doctor’s activities involve. James, 221 Va. at 53. A doctor whose duties involve greater use of judgment and discretion is more likely to be protected by sovereign immunity because the doctor’s duties “should not be affected by threats of personal liability arising from the use of such discretion.” Lohr, 246 Va. at 87. However, the mere ability to use discretion and judgment is not the only consideration; the courts take a functional approach which examines whether that discretion is attendant to duties that are integral to the Commonwealth’s interests. Id. Thus, while the doctors in James were invested with considerable discretion in the treatment of their patients, this discretion did not bear a strong relationship to the Commonwealth’s primary interest of running an effective medical school. Lohr, 246 Va. at 87 (discussing James, 221 Va. at 53).

The fourth factor that courts look to is the level of control that the state exerts over the doctor. James, 221 Va. at 53. A high level of control over the doctor weighs in favor of immunity, while a low level of control weighs against it. Lohr, 246 at 88. As the Virginia Supreme Court itself has recognized, this rule seemingly contradicts the rule in the third prong of the James test, which holds that greater amounts of doctor discretion weigh in favor of sovereign immunity. See id. The court has not provided much guidance as to how to balance these apparently opposing factors, explaining only that “when a government employee [such as a doctor] is specially trained to make discretionary decisions, the government’s control must necessarily be limited in order to make maximum use of the employee’s special training and subsequent experience.” Id. Various cases seem to indicate that because the exercise of judgment is perhaps inherent in a doctor’s functions, the determinative element will be that of state control.

A few examples may help to illustrate the mix of control and discretion that courts will look for. In James, 221 Va. at 43, the court found that while the doctors exercised broad discretion in treating their patients, the state did not exert enough control over them for them to be protected by sovereign immunity. For example, the doctors were under no obligation to accept any individual or class of patients; their methods of treatment were not subject to the control and direction of others; they had the ability to forgive medical bills; and a portion of the fees paid by the patients went to the doctors’ retirement fund. Id. at 47-52.

By way of contrast, in Gargiulo v. Ohar, 239 Va. 209, 215 (1990), the court noted that the defendant physician was granted enough discretion and was under enough state control to be entitled to sovereign immunity. For example, the doctor received no compensation, directly or indirectly, from her patients; she was not able to choose her patients, she was subject to the supervision of her superiors; and she was required to employ state-prescribed methods and to follow state-standardized procedures. Id. This case seems to accept the idea that in a profession where some exercise of judgment and discretion is necessary, the key inquiry will be on whether the state nonetheless retains significant control over the doctor’s practice.

The later case of McCloskey v. Kane, 268 Va. 685 (2004), follows this approach as well. There, the Court noted that the physician at Western State Hospital had wide latitude to use his own discretion and judgment, but he was not subject to very much state control because he was not under anyone’s supervision and was not adequately controlled in his treatment of patients. Id. at 690. As a result, the doctor was not immune to a claim for medical malpractice, and could be held responsible for his actions.

Although a very old principle of law, sovereign immunity is very much still an important doctrine in Virginia law. This article has focused on its application in medical malpractice claims, but it applies in many other contexts as well. In subsequent articles, I will discuss how this principle applies to other types of claims and what laws have been passed that allow claims against the governments and its employees.

About the Author: Nathan Veldhuis is a Fredericksburg accident attorney with Allen & Allen.

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Attorney J. David Douthit

Author: Attorney J. David Douthit

Winter driving has its own challenges. In addition, in the winter the risk of exposure if you have a breakdown makes it doubly important that you properly maintain your car. Here are some tips that include both actions to take before you drive as well as some advice about driving in the winter.

Make sure your car is operating properly before driving. Some simple and inexpensive steps include topping off fluids, especially window washing fluid, and checking tire pressure. Keeping your gas tank as close to full as possible also helps by reducing condensation in the tank. You should also look at the maintenance schedule in the owner’s manual, and get a tune-up if needed.

Check the weather along your route before travelling.

Clean snow and ice completely off your car. 1 Clean off the windshield, windows and side mirrors so you can see. Clear off your headlights and brake lights so that other drivers can see you. Clear the snow off the top of your car–if not, it’s going to slide down over your windshield as you stop, which may create a hazard for you, or it may blow off your roof as you’re driving and cause a hazard for someone behind you whose vision might be obscured, or their vehicle damaged, or even they may even crash.

Allow for greater stopping distances when driving on snow or ice. That means you need to leave a longer following distance behind other vehicles, and begin to slow sooner when approaching a stop. Remember that bridges and overpasses will freeze before surface streets.

Drive more slowly.

Brake gently to avoid skidding. With gentle braking you will need to brake earlier than normal. Perhaps the most dangerous action you can take when driving on ice and snow is to brake suddenly.

Keep some basic supplies in the trunk of your car, such as jumper cables, a quality ice scraper/brush, and a tow chain or strap. A bag of sand or kitty litter will provide some extra traction if you get stuck. A shovel will also help if you get stuck — if a full-size shovel won’t fit in your trunk, consider getting a collapsible shovel. Gloves, a hat, extra clothing and a blanket or two will come in handy if you’re stuck or your vehicle is disabled for a period of time.

When driving in bad weather, you need to pay attention. Avoid distractions and concentrate on your driving. Hang up the cellphone, and keep both hands on the wheel.

Finally, if you don’t need to go out, then don’t. Even four wheel drive vehicles and pickup trucks can be difficult to handle with ice or snow on the roads. If your vehicle is small and light, or has front wheel drive, then you should stay off the roads until they are cleared. If you do have to go out, remember that roads are iciest early in the morning and again in the late afternoon, when the temperature is usually the coldest.

About the Author: J. David Douthit is a Richmond personal injury attorney.

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