Virginia judge largely sides with ex-patients in hospital's effort to pare down lawsuit abuse claims

Posted at 10:20 AM, Aug 22, 2023
and last updated 2023-08-22 12:43:33-04

RICHMOND, Va. (AP/WTVR) —Most of the claims of sexual abuse and other mistreatment made in a lawsuit by dozens of former patients of a Virginia children's hospital can move forward, a judge has ruled, rejecting arguments that many of the allegations were time-limited under the state's medical malpractice law.

Judge Bradley Cavedo issued the ruling Aug. 14 in favor of most of the dozens of plaintiffs who are suing publicly traded healthcare company Universal Health Services Inc. and its co-defendants. His decision came two weeks after a hearing on the matter in Richmond Circuit Court, where attorneys for UHS, related corporate entities and the doctor at the center of many of the allegations urged him to whittle down the claims.

“If the judge ruled in their favor in this hearing, then most of these cases, most of our clients' cases would have been thrown out of court,” said Kevin Biniazan, an attorney for the plaintiffs, all former patients of the Cumberland Hospital for Children and Adolescents east of Richmond. “They would have been thrown out of court, based upon an argument that the sexual abuse committed by Dr. Davidow, as we allege it wasn't actually sexual abuse, that it was some form of medical malpractice or an improper medical examination. That's obviously not what the case is about. That's obviously not what we're saying and our clients are screaming out about and the reason we brought these lawsuits, and this ruling by the judge reflects that those things are mutually exclusive. That when somebody comes forward and says that they've been sexually abused, it doesn't matter if you're wearing a white coat, or a jacket or whatever it may be that's an action of sexual abuse and the law applies differently,” he added.

The lawsuit was filed in October 2020 by 20 plaintiffs and later amended to add 26 more. The former patients at the New Kent County facility make a range of claims, including: sexual or physical abuse, negligence, and the falsification of medical records and diagnoses to prolong their stays.

According to the civil attorneys, 35 of the plaintiffs specifically allege they were touched inappropriately by Dr. Daniel Davidow, the facility's former longtime medical director, during medical examinations. Attorneys for Davidow, who is facing separate criminal charges but has not been convicted of a crime, have denied the allegations.

The parties in the matter before Cavedo were at odds, in part over whether allegations of sexual misconduct in a medical setting should be covered under the malpractice law’s two-year statute of limitations, or the 20-year window laid out in a statute dealing with childhood sex abuse claims. UHS and its co-defendants argued that the vast majority of plaintiffs had waited too long to bring their claims.

But Cavedo found that the malpractice law doesn't apply “as there is no basis in health care or malpractice that would include the sexual assault as alleged by plaintiffs.”

“The factual allegations of the plaintiffs’ pleadings address conduct unrelated to any health care or professional service that Cumberland and its staff — including Doctor Davidow — should have rendered to each plaintiff individually," he wrote.

“I think to really appreciate what the judge is saying in his opinion, you have to acknowledge or understand the arguments of the defendants,” said Biniazan. “The arguments of the defendants were that the actions as we've alleged of Dr. Davidow, that is, touching and rubbing on a young girl's vagina or labia is an indistinguishable part of a medical examination. That has never been the evidence in the case, it's never been the allegation in the case and that doesn't comport with common sense,” Biniazan added. “Those actions by a physician are never an indistinguishable part of the medical examination. They should never be part of the medical examination for a 13 year old being admitted at a residential treatment center. The judge’s opinion reflects that. The different examples or the different cases that the defendants are citing to try and make it look like something else were not compelling because this case stands on its own. The actions of Dr. Davidow have to be evaluated for what they are alleged to be, and that is sexual abuse.”

Cavedo did rule that two plaintiffs, identified only as J.L.E. and K.T., were time-barred from bringing their claims, saying they should have done so earlier.

Biniazan said he planned to file Monday for reconsideration of Cavedo's decision regarding J.L.E and K.T.

Joseph Farchione, an attorney representing the hospital and UHS, said the judge's ruling and potential next steps by his clients were under consideration.

“We are in the process of reviewing our options, and at this point, no decision has been made,” he wrote in an email.

Attorneys representing Davidow in the civil suit did not respond to emailed requests for comment.

Attorney Mike Herring of McGuireWoods, who previously served as Richmond's top prosecutor, argued the case before Cavedo for UHS of Delaware, a subsidiary of UHS Inc.

In asking Cavedo to pare back the claims, he said the General Assembly has carved out exceptions to the Virginia Medical Malpractice Act's statute of limitations, such as in cases involving cancer and the discovery of foreign objects. But he added: “The General Assembly has never excluded claims for sexual assault.”

In court documents, the plaintiffs' attorneys said the defendants were adopting an “extreme position.”

“Our clients are resilient. They're incredibly strong and brave even courageous to continue the fight. You know, some of them going forward with this case now for almost three years now, in the civil context, longer for some of the criminal investigations,” said Biniazan. “I cannot speak with more pride about our clients in their willingness to continue to push forward for what they view and what we view is the right thing for justice for the right outcome and that's what we're still fighting for,” he added.

The first civil case trial will begin in September 2024 and Dr. Davidow’s criminal bench trial is scheduled for April 2024.

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