Virginia Personal Injury and Accident Law

Several new bills have been approved (or rejected) by the General Assembly and awaiting the Governor’s decision, some of which affect litigation and personal injury. Stay current with developments in the law by following PLDR Law.

PASSED - SB 633 (Stanley) & HB 1145 (Leftwich) - Civil actions; health care bills and records. Defines the term "bill" for the purposes of evidence of medical services provided in certain civil actions as a statement of charges, an invoice, or any other form prepared by the health care provider or its third-party bill administrator identifying the costs of health care services provided. The bill also clarifies the procedures for introducing evidence of medical reports, statements, or records of a health care provider by affidavit in general district court.

PASSED - HB 1132 (Williams) Payment of small amounts to certain persons without involvement of fiduciary; threshold. Increases from $25,000 to $50,000 the amount under which a payment to certain persons may be made without the involvement of a fiduciary.

PASSED - SB 64 (Surovell) Proceeds of compromise agreements; minors; investment in college savings trust accounts. Permits a court to direct the payment of the proceeds of an approved compromise agreement, in the case of damage to the person or property of a minor, by investment in a college savings trust account for which the minor is the beneficiary pursuant to a college savings trust agreement with the Virginia College Savings Plan, provided that (i) the investment options pursuant to such agreement are restricted to target enrollment portfolios; (ii) the order or decree approving and confirming the compromise requires the minor beneficiary's parent, as that term is defined in relevant law, to act as the custodian of the account; and (iii) except in the case of a distribution from the account to be applied toward the minor beneficiary's qualified higher education expenses, as that term is defined in relevant federal law, the order or decree approving and confirming the compromise prohibits the minor beneficiary's parent from making any transfer, withdrawal, termination, or other account transaction unless the court provides prior approval pursuant to a written order.

PASSED - SB 350 (Surovell) Health records; patient's right to disclosure. Requires a health care entity to include in its disclosure of an individual's health records any changes made to the health records and an audit trail for such records if the individual specifically requests that such information be included in the health records disclosure. The bill permits the health care entity to charge the requester reasonable costs to produce an audit trail, if specifically requested.

PASSED - SB 681 (Obenshain) Duty of in-network providers to submit claims to health insurers; Virginia Consumer Protection Act. Provides that a knowing violation of the existing requirement for an in-network provider that provides health care services to a covered patient to submit its claim to the health insurer for the health care services in accordance with the terms of the applicable provider agreement or as permitted under applicable federal or state laws is a prohibited practice under the Virginia Consumer Protection Act.

PASSED - SB 124 (Obenshain) Misuse of power of attorney; financial exploitation; incapacitated adults; penalty. Makes it a Class 1 misdemeanor for an agent under a power of attorney who knowingly or intentionally engages in financial exploitation of an incapacitated adult who is the principal of that agent. The bill also provides that the agent's authority terminates upon such conviction. As introduced, this bill was a recommendation of the Virginia Criminal Justice Conference. This bill incorporates SB 10 and SB 690 and is identical to HB 497.

PASSED - SB 148 (Norment) Public health emergencies; immunity for health care providers. Expands immunity provided to health care providers responding to a disaster to include actions or omissions taken by the provider as directed by any order of public health in response to such disaster when a local emergency, state of emergency, or public health emergency has been declared.

PASSED - SB 754 (Obenshain/Ballard) Motor vehicle insurance; underinsured motor vehicle. Changes the manner by which underinsured motorist coverage may be offset by amount of liability coverage available for payment, depending upon election of consumer. Also provides for changes in notifications to insured and insurance company. Bill was supported by Independent Insurance Agents of Virginia.

PASSED - HB 689 (Wampler) Workers' compensation; employer duty to furnish medical attention; cost limit. Adds scooters to the list of medical equipment an employer is required to furnish to an employee under certain circumstances under the Virginia Workers' Compensation Act. The bill raises the limit on the aggregate cost of items and modifications required to be furnished by an employer to an injured employee from $42,000 to $55,000, to be increased on an annual basis.

PASSED - SB 677 (Lewis) Workers' compensation; cost of living supplements. Provides that cost-of-living supplements shall be payable to claimants who are receiving disability benefits under the Virginia Workers' Compensation Act but are not receiving federal disability benefits.

PASSED - SB 351 (Surovell) Workers' compensation; permanent and total incapacity; subsequent accident. Requires compensation for permanent and total incapacity to be awarded for the loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof either from the same accident or a compensable consequence of an injury sustained in the original accident. Under current law, compensation for permanent and total incapacity is required only when such loss occurs in the same accident.

FAILED - HB 1002 (Guzman) Workers' compensation; injuries caused by repetitive and sustained physical stressors. Provides that, for the purposes of the Virginia Workers' Compensation Act, "occupational disease" includes injuries from conditions resulting from repetitive and sustained physical stressors, including repetitive and sustained motions, exertions, posture stress, contact stresses, vibration, or noise. The bill provides that such injuries are covered under the Act. Such coverage does not require that the injuries occurred over a particular time period under the bill, provided that such a period can be reasonably identified. The bill failed in the House Commerce & Energy Subcommittee, 6-4.

PASSED - SB 631 (Barker) Fair Labor Standards Act; overtime; employer liability. Replaces the current provisions of the Virginia Overtime Wage Act with the provision that any employer that violates the overtime wage requirements of the federal Fair Labor Standards Act, and any related laws and regulations, shall be liable to its employee for remedies or other relief available under the Fair Labor Standards Act. The bill requires an employer to compensate employees of a derivative carrier, defined in the bill, at a rate not less than one and one-half times the employee's regular rate of pay for any hours worked in excess of 40 hours in any one workweek. The bill requires the Secretary of Labor to convene a work group that includes certain industry representatives and legislators to review overtime issues and the Virginia Overtime Wage Act and requires the work group to submit a report on its findings and recommendations to the Governor and the Chairmen of the House Committees on Appropriations and Commerce and Energy and the Senate Committees on Finance and Appropriations and Commerce and Labor by November 1, 2022. This bill is identical to HB 1173.

FAILED - SB 555 (Obenshain) Liability for sale of alcohol to an underage person. Creates a cause of action against an alcoholic beverage control retail licensee who sells alcohol to an underage person who was visibly intoxicated if the consumption of the alcohol caused or contributed to an injury to person or property while the underage person operated a motor vehicle. The plaintiff must prove such negligence by a clear and convincing evidence standard. The bill was defeated in the Senate Judiciary Committee. 4-10.

FAILED - SB 642 (Morrissey) Preliminary analysis of breath to determine alcoholic content of blood; failure to advise person of rights. Provides that if a police officer or a member of any sheriff's department fails to advise a person of his rights to refuse a preliminary breath test, any preliminary breath test sample shall not be admissible for the purpose of determining probable cause or used in evidence at any hearing or trial.

FAILED - SB 144 (Edwards) Admissibility of statements of a deceased or incompetent party. Repeals the "dead man's statute," which provides that no judgment shall be entered against a person incapable of testifying based upon the uncorroborated testimony of the adverse party. Senator Edwards ultimately presented a bill to the full Senate Judiciary Committee that did not repeal the Deadman’s statute but amended it. The full Committee did not look favorably on the substitute bill and decided to carry-over, effectively killing the bill.

PASSED - HB 496 (Mullin) Abuse and neglect; financial exploitation; incapacitated adults; penalties. Changes the term "incapacitated adult" to "vulnerable adult" for the purposes of the crime of abuse and neglect of such adults and defines "vulnerable adult" as any person 18 years of age or older who is impaired by reason of mental illness, intellectual or developmental disability, physical illness or disability, or other causes, including age, to the extent the adult lacks sufficient understanding or capacity to make, communicate, or carry out reasonable decisions concerning his well-being or has one or more limitations that substantially impair the adult's ability to independently provide for his daily needs or safeguard his person, property, or legal interests. The bill also changes the term "person with mental incapacity" to the same meaning of "vulnerable adult" for the purposes of the crime of financial exploitation. As introduced, the bill was a recommendation of the Virginia Criminal Justice Conference. The bill incorporates SB 126.

PASSED - HB 869 (Brewer) Adoption. Allows a circuit court, upon consideration of a petition for adoption, to immediately enter an interlocutory order referring the case to a child-placing agency to conduct a visitation instead of entering an order of reference referring the case to a child-placing agency for investigation and makes other amendments to accommodate for and bolster this change. The bill allows petitions for adoption submitted by the persons listed as the child's parents on his birth certificate to be filed and granted under the provisions governing stepparent adoptions. The bill states that a putative father's registration with the Virginia Birth Father Registry is untimely regarding a child whose adoption has been finalized 180 days or more prior to such registration and in certain other instances set forth in the bill and allows written notice of an adoption plan to be sent to a putative father by express mail with proof of delivery in addition to delivery by personal service or certified mailing as in current law.

FAILED - HB 365 (Sullivan) Parenting Coordinator Act. Supported by the Virginia Family Law Coalition, the bill creates the Parenting Coordinator Act, which provides a framework for the use of a parenting coordinator in actions for divorce, separate maintenance, or annulment in which custody or visitation is in issue, petitions for custody or visitation, and written agreements between parties and parenting coordinators. The Act governs the qualifications, scope of authority, appointment and removal, confidentiality, communication, records maintenance, and fees of such parenting coordinators. The bill failed in the House Courts Civil Law Subcommittee.

PLDR Law Chad Mooney 1

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