Another Bank Failure – How Many More on the Horizon

Yet Another Bank Failure This Week. You probably did not hear that there was yet another bank failure this week.
The Fed closed down Ameribank a 102-year-old West Virginia bank on Friday. Ameribank, founded in January 1906 and had $102 million in deposits and assets of $115 million as of June 30 of this year. What is interesting that in 1999 Ameribank assumed $135 million of one of the largest bank failures of the 1990s, First National Bank of Keystone. The Feds sold all deposits to two other banks Pioneer Community Bank Inc. of Laeger, W.V. and The Citizens Savings Bank of Martins Ferry, Ohio. Both banks also will purchase about $23 million in Ameribank assets. The banks branches will reopen next week under their new guidance..

The closure of Ameribank Inc. was the 12th U.S. bank failure yet this year,. This is another example of the nation’s worst banking crisis in recent times. It is estimated that the cost to the FDIC’s deposit-insurance fund is $42 million The FDIC last month raised to 117 the number of banks it has identified that are in danger of failing, the largest number since mid-2003 and up from 90 at the end of the first quarter. Even though one might say this was a small amount.

Multiply this small amount times 117!

As well it is easy to assume that some of these 117 banks might cost the Fed more than $42 million dollars.

All one has to take into account the largest failure of the year so far is Pasadena, Calif.-based IndyMac Bank, taken down by regulators July 11 cost the Fed (Us) approx $10 billion dollars.

You do the math. How many more banks will be failing?

How safe is your money

Andrew Abraham

My Investors Place

Another Bank Failure

Yet Another Bank Failure This Week. You probably did not hear that there was yet another bank failure this week.
The Fed closed down Ameribank a 102-year-old West Virginia bank on Friday. Ameribank, founded in January 1906 and had $102 million in deposits and assets of $115 million as of June 30 of this year. What is interesting that in 1999 Ameribank assumed $135 million of one of the largest bank failures of the 1990s, First National Bank of Keystone. The Feds sold all deposits to two other banks Pioneer Community Bank Inc. of Laeger, W.V. and The Citizens Savings Bank of Martins Ferry, Ohio. Both banks also will purchase about $23 million in Ameribank assets. The banks branches will reopen next week under their new guidance..

The closure of Ameribank Inc. was the 12th U.S. bank failure yet this year,. This is another example of the nation’s worst banking crisis in recent times. It is estimated that the cost to the FDIC’s deposit-insurance fund is $42 million The FDIC last month raised to 117 the number of banks it has identified that are in danger of failing, the largest number since mid-2003 and up from 90 at the end of the first quarter. Even though one might say this was a small amount.

Multiply this small amount times 117!

As well it is easy to assume that some of these 117 banks might cost the Fed more than $42 million dollars.

All one has to take into account the largest failure of the year so far is Pasadena, Calif.-based IndyMac Bank, taken down by regulators July 11 cost the Fed (Us) approx $10 billion dollars.
You do the math. How many more banks will be failing?
How safe is your money?
Andrew Abraham
My Investors Place
Andrew has been in the financial arena since 1990. He is a Registered Investment Advisor ad affiliate of Abraham Bedick Capital. Since 1993 Andrew has been a proponent of quantitative mechanical trading programs. Andrew’s major concern is not only total return on investment but rather the amount of risk that one would have to tolerate in order to achieve returns He focuses on developing quant models that encompass strict risk adherence and correlation. He has been a speaker at conferences as well as an author of numerous articles. Andrew has spent years researching ideas that have the potential to outperform indices as well as maintain fewer draw downs.

A Summary of Virginia Medical Malpractice Laws

n many respects, Virginia has been more conservative about modifying the common law than its sister states. To the extent modifications have been approved, many restrict rather than expand the rights of the victims of medical negligence. For example, Virginia has adopted three major modifications of medical malpractice law: a damage cap, screening of proposed lawsuits by a medical review panel, and a state fund to compensate victims of birth-related neurological injuries. Much of the legislation specific to medical malpractice can be found in the Medical Malpractice Act, Va. Code Ann. §§ 8.01-581.1 to 8.01-581.20.

Statutes of Limitations

All medical malpractice actions for injury (as opposed to death) must be brought within two years from the date the cause of action accrued. Va. Code Ann. § 8.01-243(A). In § 8.01-230, a cause of action “accrues” at the time of injury: “the cause of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person… and not when the resulting damage is discovered.”

This two-year limitation has long been applicable, and strictly enforced, in Virginia. Virginia is one of the minority states that use the “date-of-the-act” rule, which means that the plaintiff must file suit within two years of the date of the injury regardless of how obscure or undiscoverable the injury might have been. Exceptions to the two-year rule are (i) cases involving minors or mentally incompetent people who are in law regarded as unable to know their legal rights and (ii) cases where the injury was fraudulently concealed from the person.

The Virginia Supreme Court rejected the judicial adoption of a discovery rule, Nunnally v. Artis, 254 Va. 247, 492 S.E.2d 126, (1997), but held that “continuing treatment for the same conditions” tolls the statute of limitations until treatment ends. Grubbs v. Rawls, 235 Va. 607, 369 S.E.2d 683 (1988). The court defined “continuous treatment” as not “mere continuity of a general physician-patient relationship; we mean diagnosis and treatment for the same relating illness or injuries, continuing after the alleged act of malpractice.” The court acknowledged, however, the rule would not apply to a single, isolated act of malpractice. Farley v. Goode, 219 Va. 969, 252 S.E.2d 594 (1979). In other words, when an act of malpractice occurred and that physician continued to see the patient over a course of years for an unrelated condition, the rule would not apply.

In foreign object cases (surgical sponges, needles, etc.) and cases of fraud or concealment (i.e., alteration of medical records) the statute is extended to one year from the date the object or injury is discovered or reasonably should have been discovered. However, this extension is subject to a ten-year limit from the time the cause of action accrued. Va. Code Ann. § 8.01-243(C).

In cases in which the health care provider’s negligence caused the patient’s death (Wrongful Death Claims), suit must be filed within two years of death. Va. Code Ann. § 8.01-244(B).

If a person entitled to bring a personal action dies with no such action pending before the expiration of [the two-year] limitation period… then an action may be commenced by the decedent’s personal representative before the expiration of the limitation period… or within one year after his qualification as personal representative, whichever occurs later.

However, § 8.01-229(B)(6) states that:

[i]f there is an interval of more than two years between the death of any person in whose favor . . . a cause of action has accrued or shall subsequently accrue and the qualification of such person’s personal representative, such personal representative shall, for the purposes of [the statute], be deemed to have qualified on the last day of such two-year period.

A parent’s action for medical expenses caused by injury to a minor must be brought within five years. Va. Code Ann. § 8.01-243(B). A minor’s medical malpractice action for injury or death must be commenced within two years from the date of the last act of negligence, unless the child is less than eight years of age, in which case the action must be brought by the child’s tenth birthday. Va. Code Ann. § 8.01-243.1. The Virginia Supreme Court has upheld the constitutionality of this statute. Willis v. Mullett, 263 Va. 653, 561 S.E.2d 705 (2002). Incapacity (typically a substantial mental or physical handicap) also tolls the running of the statute of limitations during the period of incapacity. Va. Code Ann. § 8.01-229(A).

Contributory or Comparative Negligence

Virginia recognizes the doctrine of contributory negligence in medical malpractice cases. A plaintiff’s contributory negligence may bar her recovery entirely, but the patient’s negligence must be concurrent with the defendant’s negligence. Sawyer v. Comerci, 264 Va. 68, 563 S.E.2d 748 (2002); Ponirakis v. Choi, 262 Va. 119, 546 S.E.2d 707 (2001).

Joint and Several Liability

Virginia imposes joint and several liability on joint tortfeasors. Va. Code Ann. § 8.01-443. Thus, any joint tortfeasor against whom judgment is entered is liable to the plaintiff for the entire judgment, regardless of the tortfeasor’s degree or percentage of fault. For example, in a hospital setting, if the attending doctor and nurse are both negligent, then each one can be held responsible for the patient’s entire injury even if part of that injury was caused by the other’s negligence.

Vicarious Liability

Under the doctrine of respondeat superior, hospitals in Virginia are vicariously liable for the negligence of their employees but not that of independent contractors. McDonald v. Hampton Training School for Nurses, 254 Va. 79, 486 S.E.2d 299 (1997). Whether a physician should be considered an employee is a question of fact not to be determined by whether the hospital calls him one, but by the factors of selection and engagement, payment of compensation, power of dismissal, and (most importantly) power to control the physician’s work. A physician’s exercise of professional judgment in the performance of professional duties is a factor, but not the only factor, in deciding whether the hospital has the power to control his work. There is also authority for holding a hospital liable for the act of a physician on the theory of negligent credentialing. Stottlemyer v. Ghramm, 2001 Va. Cir. LEXIS 501 (Va. Cir. Ct. July 13, 2001)(affirmed at 2004 Va. LEXIS 99 (2004). In other words, a hospital can be held legally responsible for granting hospital admission and treatment privileges to an unqualified physician.

Expert Testimony

Except for rare cases within the common knowledge and experience of lay jurors, expert testimony is necessary to establish the standard of care, a deviation from the standard, and the proximate cause of injury. Perdieu v. Blackstone Family Practice Center, Inc., 264 Va. 408, 568 S.E.2d 703 (2002). To testify as an expert on the standard of care a witness must demonstrate expert knowledge of the standards of the defendant’s specialty and have had an active clinical practice in either the defendant’s specialty, or a related field of medicine, within one year of the date of the alleged act or omission. Va. Code Ann. § 8.01-581.20.

Damage Caps

Virginia imposes a cap (limit) on damages of all kinds in medical malpractice cases. For claims arising out of acts or omissions prior to August 1, 1999, the damage cap is $1 million. For acts or omissions on or after August 1, 1999, and before July 1, 2000, the cap is $1.5 million. The cap is increasing by $50,000 every July 1. Two final increases of $75,000 beginning in 2007 will bring the damage cap to $2 million for acts or omissions on or after July 1, 2008. Va. Code Ann. § 8.01-581.15. The Virginia Supreme Court has twice considered this legislation and held that it does not violate the U.S. or Virginia constitutions. Pulliam v. Coastal Emergency Services, Inc., 257 Va. 1, 509 S.E.2d 307 (1999); Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989).

A settlement with one defendant reduces the maximum liability of the others, because the cap limits the total amount recoverable for an injury to a patient, regardless of the number of theories or defendants. FairfaxHospital System v. Nevitt, 249 Va. 591, 457 S.E.2d 10 (1995). This includes punitive damages. Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1990). In cases arising prior to March 28, 1994, when the definition of “health care provider” was broadened in Va. Code Ann. § 8.01-581.1, a physician’s professional corporation may be subject to uncapped liability. Schwartz v. Brownlee, 253 Va. 159, 482 S.E.2d 827 (1997).

Virginia limits punitive damages to $350,000. Va. Code Ann. § 8.01-38.1. This cap has also been determined to be constitutional by the Fourth Circuit Court of Appeals. Wackenhut Applied Technologies Center, Inc. v. Sygnetron Protection Systems, Inc., 979 F.2d 980 (4th Cir. 1992).

Statutory Cap on Attorneys’ Fees

There is no Virginia statute setting a limit on attorneys’ fees in medical malpractice actions.