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Zoey, JD
Zoey, JD, Attorney
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Experience:  Active member of the NYS bar since 1989
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My husband was recently released from prison in VA after serving

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My husband was recently released from prison in VA after serving 12 years. He is not on parole, nor does he have probation - we are free and clear. My question arises because he has a shoulder injury due to negligence on the part of a guard at his last correctional facility who closed his cell door on him. The injury is documented, and the prison medical people kept promising he would be seen by an orthopaedic specialist (because the doctor on site was a general practictioner). Eight months later he was released because his time was served. He is 51 years old and now his shoulder injury keeps him in pain. The prison never did get him checked or treated properly and now we are worried his injury will keep him from working. A physical therapist confirmed verbally, that his rotator cuff is torn. I am a professional educator. We've kept good records, but the VA Dept. of Corrections is a formidable and overwhelming force. We were too frightened of imminent retribution to create too many waves when he was still incarcerated. Now he is out. Is there a precedent or a possibility that we might have a case against VA DOC - as he was a ward of the state and injured (there were witnesses) due to their negligence, and is still injured - for continued negligence and supreme indifference. We cannot get insurance for him until he gets a job and he can't start working while his shoulder is so painful - so we're stuck. Also what kind of lawyer would you recommend?
Submitted: 5 years ago.
Category: Legal
Expert:  Zoey, JD replied 5 years ago.

The state and its agencies and employees are immune from suit or prosecution when operating within the line of duty, unless you could show negligence or misconduct. I obviously have only very little information here, but it's possible that you would be able to establish negligence in the causing and the failure to provide adequate treatment for your husband. You and your husband would have to sit down with a personal injury lawyer, and get a sense of how viable this suit may be and whether it would be worthwhile to spend the time and funds to bring the legal action.

We are not able to personally recommend specfic attorneys or firms, but if you weren't sure where to start to find a personal injury litigator, you could get a one time inexpensive referral to a pre-screened member of the Virginia Bar in good professional standing for $50 or less, which would include a half hour consultation with the lawyer by going through the Virginia State Bar Association's Lawyer Referral Service. There's no obligation for you to retain the lawyer at the end of the conference.

Another option would be to use a referral service to which lawyers subscribe in order to solicit business. A very reputable one of this kind is Although they do not prescreen, they have a rating procedure which would give you some additional information.

One big problem with suits of this kind is getting anyone to go head to head against the state. However, if your injury claim is strong enough you may not only be able to find one, but you may be able to get him to take it on a contingecy basis. That is, you only payup front for filing fees and whatever incidentals you and the lawyer agree upon before you retain him. From there, he would only get his actual fee if he won for you at trial, or negotiated a settlement that you agreed to take. Then he'd get 1/3 of your award or thereabouts. Since the lawyer doesn't get paid if he doesn't win or force a good settlement, if no lawyer will touch a case on a contingency basis, it may also be a reality check as to how good a plaintiff's case may actually be.

Apart from this, the poor level of medical care in prisons throughout the country is a big concern of the ACLU, which brings class actions on behalf of inmates subjected to substandard medical treatment. I don't know the extent of the issues they are involved with regarding the Virginia Department of Corrections, but it might be worth contacting them as well, since they may be addressing this subject as a civil rights issue, and they are a pro bono organization.

Edited by FranL on 1/1/2011 at 8:10 PM EST
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