“You’re in Trouble,” Says Judge to Bladder Injury Plaintiff Who Failed to Disclose Doctor’s Visit in Discovery, and Awards $21,000 in Sanctions

By Stacey Rose Harris
DiMuroGinsberg, PC

Plaintiff Richard Robbins sued Sentara Hospital in Norfolk Circuit Court, alleging that he suffered permanent injury to his bladder following knee surgery, due to negligent bladder management by the nursing staff (likely arising out of catheter care). During discovery, Robbins’ counsel did not disclose that Robbins had visited a bladder specialist in Baltimore, and Sentara’s counsel caught wind of it when they saw reference to a John’s Hopkins appointment in other medical records. The records revealed the Hopkins’ specialist opinion that the bladder issues likely arose “over the span of many years” and were not the result of treatment during his surgery stay.

This revelation was explosive, and Sentara’s counsel sought dismissal of the case or to have the issue of causation taken from the jury, arguing that “Plaintiff and/or his counsel deliberately gave evasive and incomplete responses to avoid production of dispositive evidence.” Sentara’s counsel also pointed to the fact that they had asked for Plaintiff’s counsel to authorize a medical subpoena, and he has put a tight expiration date on it—three weeks. This delayed their obtaining the records. Further, even after being made aware of the existence of new records, he did not supplement Robbins’ discovery responses. Robbins, in an affidavit to the Court, swore that he never disclosed the Hopkins visit to his lawyer. The lawyer, for his part, and represented by his own counsel, stated that he had not seen the Hopkins records until Sentara moved for sanctions, and that his clients had not mentioned the doctor’s statements.

Sentara’s lawyers were galled at Robbin’s position. Nevertheless, on their motion for sanctions, they asked the Court, “What’s your analysis?” The Court found that 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 that omission came to Plaintiff’s attention, he and his counsel should have addressed the oversight immediately. They did not.” Although that omission was suspicious, the Court decided that there was no evidence that this information was intentionally concealed, and declined to dismiss the case or find that Robbins should be precluded from presenting evidence on causation. It did enter an award of sanctions against the Plaintiff of over $21,000, with a stern warning that this type of relevant discovery must be leaked much earlier in the case.

The lawyers at DiMuroGinsberg regularly represents attorneys who find themselves similarly situated to Robbins’ lawyer. Ben DiMuro, managing partner of the firm, has over 30 years of experience in counseling other attorneys on professional responsibility matters and defending them against sanctions motions and before the Virginia State Bar in ethics proceedings.