Legal Question in Personal Injury in Virginia

I was in an automobile accident in which I was struck head on by a driver who had fallen asleep. I suffered a fractured foot, broken sternum and some seatbelt related injuries. Litigation is pending vs the other driver. I have two questions....

1- The hospital never performed an MRI despite the fact that I lost consciousness at the scene of the accident. Now a neurophysiologist has ordered one and while the results are still pending, he has conducted other tests and says my symptoms are consistent with a frontal lobe injury. Was it malpractice on the part of the hospital to not conduct an MRI?

2 - I have heard of cases where the spouse of an accident victim has also independently pursued litigation for pain and suffering, although not involved in the accident. This was emotionally and physically taxing on my wife while I was in the hospital and during my recovery. We were in the process of moving and due to my accident it all fell squarely on her shoulders. Does she have a case independent of mine?

Asked on 8/21/13, 5:14 am

1 Answer from Attorneys

Michael E. Hendrickson Attorney & Counsellor at Law
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1. More relevant facts required to make a more definitive determination, but I suspect not.

2. Yes, you're correct regarding the claim known as Loss of Consortium which in some states may be brought as an independent tort action while in others

it is treated as an element of damages in the case brought by the primary plaintiff in his or her personal injury case. However, in the Commonwealth, there is no such claim recognized for either spouse and it apparently is actually statutorially barred under Va. Code Sec.55-36 (2010). (See also Carey v. Foster, 221 Supp. F. 185 (E.D. Va. 1963.)

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8/21/13, 6:47 am

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