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LEGAL NEWS FOR THE MEDICAL COMMUNITYVolume 13, Number 4 MAY 2016

OVERLOADED?You can take steps to fight job burnout…page 5

VERDICTS & SETTLEMENTSThree pages of newly reported cases begin on…page 16

DEATH CASE SETTLEMENTClaim under “patient-dumping” law settled for $1.1M…page 6

INSIDEHandling patient

records in bankruptcy

Page 4

By DeBorah elkins

A new mother can sue an obstetrical practice for al-legedly infecting her with streptococcus during treat-ment by an infected staff member, a Fairfax Circuit Court has ruled.

In May 2013, the mother fell ill after her dis-charge from the hospital. Several days later, she was admitted to a critical care unit suf-fering from “significant sepsis,” according to her lawsuit. After she was diagnosed with group A streptococcus, state and county health authorities inves-tigated, and traced the source of the infection back to “an employ-ee or agent” of the obstetrical practice, she said.

The defendant medical prac-tice claimed it was protected from suit under a statutory grant of immunity for providers who report health-related confi-dential information to state and local health authorities.

In a case of first impression, the judge rejected the defen-dant’s logic.

That interpretation of Va. Code § 32.1-38 would provide a broader grant of immunity than the legislature intended, said Fairfax Circuit Judge Stephen C. Shannon.

Back to the hospital Shannon relied on the parties’

pleadings in ruling on the defen-dant’s plea in bar.

Mary E. Alipio delivered her child on May 21, 2013, at INO-VA Fair Oaks Hospital, under the care of employees of the Fair Ridge OB-GYN Associates PC, who had provided her prenatal, labor and post-partum treat-ment, she alleged.

Two days after giving birth, she was discharged by a Fair Ridge employee. At the time,

By DeBorah elkins

A doctor’s long-running dis-pute with a consultant hired to help him buy a medical practice turned into a battle of the experts, as the doc-tor finally got to try his claim for damages in Alexandria federal court.

The case had twice been sent back from the 4th U.S. Circuit Court of Appeals, since it was first filed in 2011. Last June, the federal ap-peals court reversed judgment for the con-sultant hired by the plaintiff, Dr. Petr Bocek, and ordered the Alexandria court to enter judg-ment finding the consultant lia-ble for breach of a duty of loyalty to his former client.

At his December trial on dam-ages, Bocek asked the court to impose a constructive trust on the assets of the Allergy Care Centers Practice and to award him com-pensatory and punitive damages, as well as attorney’s fees.

Bocek’s expert valued the al-lergy practice at $2.2 million in 2011 and said the doctor lost be-tween $1.2 and $1.3 million by

Staff infection: Patient claims medical worker spread illness

n See BALANCE BILL on PAGE 19 n See RECOVERY on PAGE 19

n See INFECTION on PAGE 18

By Peter Vieth

For what may be the first time in Virginia, a judge has ordered a hospital to slash its “balance bill-ing” charges by 75 percent to re-flect the hospital’s usual write-off for uninsured patients.

The decision is a rare judicial rebuke to the common hospital practice of bill-ing full rate for patients whose insurance plans do not have reimbursement agree-ments with the hospital.

The judge said a contract signed by a dis-traught emergency room patient was inval-id and he chided the hospital for treating its list of charges as “double secret.”

Surprise billThe court dispute arose after Glenn

Dennis – a Martinsville banker – re-ceived what is sometimes termed a “sur-prise medical bill.”

He is not alone. A recent Kaiser Family Foundation survey found that among in-sured, non-elderly adults struggling with medical bills, charges from out-of-net-work providers were a factor about one-third of the time.

In seven out of 10 such cases, pa-tients did not know the providers were not in their plan’s network when they received care.

The 57-year-old Dennis had little choice about his treatment.

He was at work at a bank branch in

Challenge to ‘balance billing’ hits hospital

MILLION DOLLAR SETTLEMENTSIn 2015, our sister publication, Virginia Lawyers Weekly, reported 26 medical

malpractice defense wins in which the plaintiff sought a recovery of $1 million or more. the annual compendium of “million-dollar med-mal defense verdicts” begins

on page 7. For inclusion in the survey, the final demand or amount sued for must have been $1 million or more; the verdict must have been handed down by a jury in

2015. the “size” of the defense verdict is determined by the amount demanded.

Doc’s recovery is reduced for ‘unclean hands’

JUDGE CACHERIS

JUDGE SHANNON

By Peter Vieth

The chief of vascular surgery at INOVA Fairfax Hospital lied in medical records to cover up the fact that he operated on the wrong leg of his patient, according to a lawsuit filed this month.

The startling allegations are contained in a $10 million civil complaint that mar-ries medical malpractice claims with charges of civil conspiracy and fraud.

After the surgery, the absence of fur-ther care and misrepresentations by sur-geon Dr. Dipankar Mukherjee and others led to the death of the 92-year-old patient, the lawsuit contends.

The suit alleges that when Mukherjee realized he had operated on the wrong leg, he ended the surgery and added false entries in the records to make it seem as though the switch was intentional.

“Instead of just admitting the simple mistake and fixing it, he undertook to cover it up,” said Les S. Bowers of Roa-noke, the lawyer representing the pa-tient’s family.

The suit was filed April 5 in Fair-fax County Circuit Court. It is Yeatts v. Mukherjee, No. 2016-05070.

As of press time, it was not clear wheth-er the suit had been served on the defen-dants, including Mukherjee, Virginia Sur-gery Associates PC, INOVA Health Care Services and INOVA Physician Partners Inc. VLW could not confirm who would be counsel for the Inova defendants.

An attorney representing Mukher-jee declined to comment. A media rela-

tions officer for Inova said the non-profit healthcare company does not comment on matters in litigation.

The lawsuit – which includes images of entries in medical records – describes the last days of Reginald M. Manning. A longtime North Carolina state employ-ee, Manning in recent years had moved to Northern Virginia to be near family members, Bowers said.

A resident of an assisted living facility, Manning was taken to the Fairfax Hospi-tal in April 2014 with symptoms indicat-ing a possible urinary tract infection, the lawyer said.

Other than those symptoms, Manning was of “sound mind, stable body,” Bow-ers said.

Vascular surgery was planned after tests showed the possibility of blood clots

in Manning’s left leg. Dr. Mukherjee’s plan was an operation to remove the left leg clots either chemically or surgically.

None of the studies indicated any prob-lems with Manning’s right leg, and no medical staffer documented any concerns about the vascular status of the right leg at any time prior to the April 8 surgery,

Suit claimed doctor lied about wrong-leg surgery

By DeBorah elkins

Tighter rules on some kinds of drug prescriptions have put pharma-cists and law enforcement on alert for efforts to evade controls. Some-times their suspicions can lead to lawsuits, as in a recent case in Richmond federal court.

Plaintiff Eve Davis was arrested in a Wal-Mart store after a pharmacist suspected a fraudulent prescription and notified law en-forcement. Davis sued Spotsylvania County Deputy James V. Harney under 42 U.S.C. § 1983, claiming he did not adequately inves-tigate her history of prescription fulfillment prior to leading her away in handcuffs.

Richmond U.S. District Judge Henry Hudson dismissed Davis’ claims against Wal-Mart and its pharmacist, but the claim against Harney survived the court’s April 13 decision in Davis v. Wal-Mart Stores East LP.

Davis, a former government contractor with a security clearance, suffers from attention deficit/hyperactivity disorder and mild depression, for which she is pre-scribed Adderall, her complaint alleged. Because she had no medical insurance, her prescribing physician, Dr. Syed Ahmed, agreed to provide Davis with two one-month prescriptions every other month to reduce the frequency of Davis’ office visits and ultimately save her money.

On Saturday, Oct. 5, 2013, Davis took her prescription to Wal-Mart and waited in the store to pick it up. The pharma-cist, Brenda Greer, ran the prescription through the state’s Prescription Mon-itoring Program to check on Davis’ pre-scription history, and noticed she had just filled an Adderall prescription for the same quantity only four days earlier.

But Greer allegedly also observed a pattern of Davis filling two prescrip-tions for a one-month Adderall supply a few days apart, followed by a two-month hiatus before filling additional Adderall prescriptions, according to the suit. That pattern never exceeded a frequency of one prescription per month, from April

2013 to October 2013, Davis claimed.Davis alleged Greer apparently conclud-

ed Davis had a proper patient-provider relationship with Dr. Ahmed, but that Da-vis was attempting to fill the prescription too soon. She allegedly called Dr. Ahmed’s office and left a voicemail inquiry about whether he approved filling the prescrip-tion at this time, and faxed a copy of the prescription to his office. The pharmacy technician called Davis’ cellphone and left a voicemail stating Wal-Mart would be un-able to fill the prescription until Monday.

Shortly thereafter, Greer called the Spot-sylvania Sheriff’s Office and told a dis-patcher that she had a patient “turning in prescriptions with the same date on it for the same medicine at two pharmacies …” Davis alleged Greer described the prescrip-tion as a “fake” and a “duplicate” and said the signature “looked funny.” Greer gave the dispatcher Davis’ name, birthdate and address. The dispatcher told Greer a deputy was on his way. Davis alleged Greer never discussed her concerns as to the timing of the prescription.

When Deputy Harney arrived at the pharmacy, Greer purportedly told him the pharmacy needed more time to verify the prescription with the physician. The pharmacist did not tell the deputy the prescription was fraudulent, but did say the PMP history was raising some “red flags,” Davis said.

Jail timeDavis returned to the pharmacy to ask

about her prescription, and Greer supposed-ly stalled, waiting for the deputy. Once Har-ney arrived at the pharmacy, he got in line behind Davis, and when Greer announced Davis’ name, the deputy handcuffed Davis and escorted her to a room in the store to in-terview her about the prescription. He then took her to the sheriff’s office and booked her for violating Va. Code § 18.2-258.1(A), for attempting to obtain Adderall by fraud.

On the following Monday, Dr. Ahmed in-formed Wal-Mart pharmacy staff by phone and fax that the prescription was valid and he approved it being filled. Davis alleged Greer did not attempt to contact the sher-iff’s office to relay this information, but did

‘Suspicious’ Rx led to a lawsuit

n See PRESCRIPTION on PAGE 19

n See WRONG LEG on PAGE 6

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© Virginia Lawyers Media, May 2016 | Virginia Medical Law Report

Table of Contents:3 Suit claimed doctor lied about wrong-leg

surgery

3 ‘Suspicious’ Rx led to a lawsuit

4 Handling patient records in bankruptcy

5 Feeling the burnout? Take these steps to recharge

6 Settlement is $1.1 million in hospital death case

7 - 14 Million Dollar Defense Verdicts

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Handling patient records in bankruptcyBy roy terry

When a health care business files for bankruptcy, legal requirements for the handling of patient records can quickly become the focal point.

“Health care business” is defined broadly under a body of federal statutes known as the Bank-ruptcy Code. The Code definition refer-ences a public or pri-vate entity, whether for profit or non-prof-it, to include: (i) the diagnosis or treat-ment of injury, de-

formity, or disease; (ii) surgical, drug treatment, psychiatric or obstetric care; general or specialized hospital, ambu-latory, emergency or surgical treatment facilities; hospice; home health care; and any long-term care facility, including any skilled nursing or assisted living facility. Bankruptcy courts have understandably gained considerable experience with cas-es filed by businesses which fall within this sweeping definition.

The last major revision of the Bank-ruptcy Code occurred a decade ago. In-cluded within that revision was the en-actment of Section 351, which focuses solely upon the handling of patient re-cords. This Code section comes into play when a health care business commences a case under Chapter 7, 9, or 11.

Each of these chapters represents a dif-ferent type of bankruptcy:

• Chapter 7 is a liquidation bank-ruptcy where an independent trustee is appointed to administer assets for the benefit of creditors.

• Chapter 9 is a municipally-related bankruptcy which has famously seen re-cent use in the reorganization of Detroit’s finances. An example of a Chapter 9 health care proceeding might be the reorganiza-tion of an insolvent public hospital.

• Chapter 11 can be used for either the reorganization or liquidation of a busi-ness entity or individual. While a plan is being developed and put forward for the approval of creditors and confirmation by the court, pre-petition management gen-erally retains control during chapter 11 under the supervision of the court and an administrative agency known as the United States Trustee. “Debtor-in-posses-sion” is the term used when management remains in place during chapter 11. A debtor-in-possession functions with the same powers and duties as a chapter 7 trustee. Henceforth in this article, ref-erences to the trustee shall also include reference to a debtor-in-possession.

If a health care business commences a bankruptcy pursuant to chapter 7, 9 or 11, and the trustee lacks sufficient funds to pay for the storage of patient records as required under federal or state law, Sec-tion 351 prescribes the following specific requirements for the trustee:

1) The Trustee must promptly publish in one or more appropriate newspapers that if patient records are not claimed by the patient or an insurance company

within 365 days, the trustee will destroy the records;

2) During the first 180 days of the 365 day notice period, the trustee must also attempt to notify directly each patient (or family member or contact person of a patient) and appropriate insurance car-rier; and

3) If patient records remain unclaimed after the 365 day period, the trustee shall then request to deposit the records with each appropriate Federal agency, except that these agencies are not required to accept the records.

If patient records remain after all three steps have been accomplished, the trust-ee must destroy the records as directed by the statute.

It bears repeating that Section 351 applies when a trustee lacks sufficient funds to store patient records. What if the trustee also lacks sufficient funds to car-ry out the requirements of Section 351? Who pays to store the records during the one year plus required for the trustee to comply with the Code provisions? Stories exist of trustees who have had no choice but to fund compliance with the statutory requirements from their own pockets.

A resulting opportunity exists for pur-chasers desiring to acquire health care businesses who will take on the financial responsibility for storing patient records, and a possible solution exists for trust-ees charged with administering a cash-starved health care business.

Roy Terry practices law with Sands Anderson in Richmond.

TERRY

4

| © Virginia Lawyers Media, May 2016 Virginia Medical Law Report

By shawn healyDolan MeDia newswires

There are few things more discouraging than to invest significant time and effort in your career, only to want to quit because you feel burnt out.

Burnout is a common yet preventable experience among hardworking professionals. It’s the feeling of discouragement that comes from thinking that your current efforts are meaningless, or that you cannot produce the positive impact you want through your work.

Burnout is a reaction to prolonged, negative stress that feels like a weighty burden and makes it difficult to maintain hope for the future. Symptoms of depres-sion from burnout can include hopelessness, low ener-gy, sadness, discouragement and lack of interest. The more you understand what contributes to burnout, the more you can do to prevent it.

Contrary to popular belief, burnout can occur in a relatively short amount of time. You need not work in an unrewarding job for years before burnout sets in. In fact, given the right combination of factors, one can experience burnout very early in a career.

Burnout can occur when you’re working in a stress-ful job for an extended period of time; the stress is consistent and seems to be resistant to your attempts at reducing it; the work you do feels meaningless or of little use; you have tried repeatedly to change your situation but have not found success in anything you have tried; and/or you feel like you have no options to acquire the type of meaningful job you desire.

Below are several contributing factors to burnout and recommendations for how to prevent or treat it.

• Avoid unrealistic expectations.Our expectations set the parameters for how we re-

act to events in our lives. If our expectations are unre-alistic, we set ourselves up for disappointment, resent-ment and diminished resilience.

An expectation that our efforts at work will be re-warded with appreciation every day, while a nice idea, is an unrealistic expectation that will lead to feeling unappreciated within days.

A healthy or realistic expectation has more to do with you and what you have control over, and less

about what others will do.• Understanding the dynamics of the system.When we lack understanding as to how the system

we work in operates, frustration and feelings of power-lessness are soon to follow.

Learning to appreciate the system you’re in is not the same as simply “playing the game” and doing things the way they have always been done; instead, it’s a way to learn how most effectively to get your needs met.

The more you feel self-efficacy in meeting your needs, the greater sense of control you will feel.

• Identify what you control.Much time and effort are wasted as we try to manip-

ulate things outside of our control. Practicing accep-tance of the things over which we have no control and focusing our efforts on those things we can actually influence is a powerful way to increase your sense of control in your work, and in your life in general.

For instance, you might not be able to choose the cases you are assigned — a common source of frustra-tion for associates — but you can choose how you think about those cases, how you ask for help, how you look for something meaningful in the work, and how much time you choose to dedicate to thinking about the work once you leave the office.

• Avoid meaningless work.There are certain tasks that might seem meaning-

less or dreadfully boring. Most people experience a cer-tain amount of meaningless work in their day-to-day responsibilities.

The problems start to develop when the majority of your work feels meaningless or you lack compensatory experiences of meaningful work to balance it out. We all need meaning in our lives.

If the tasks you have to complete at work do not nat-urally satisfy your need for meaning, either seek out meaningful activities outside of work or explore ways that you can get involved in meaningful activities at work.

• Set reasonable boundaries.Setting healthy boundaries is one example of exer-

cising control in your life.When work feels unrelenting, increase your sense

of control by practicing saying “no” diplomatically, set boundaries on when you will stop working, schedule time for rest and self-care, and challenge the thought that you cannot set boundaries lest something terrible happen.

• Schedule breaks/time off.Our calendars can quickly fill up and feel overwhelm-

ing. Use the power of your calendar to schedule breaks in your work and time off from work in order to recharge.

Studies have shown that taking regular breaks throughout the day improves work productivity and in-creases your ability to handle difficult tasks.

• Exercise control outside of work.As you focus on areas within your work that you can

influence, look also to increase your control outside of work to help ward off burnout.

• Adopt meaningful hobbies and activities.It is extremely important to remember that your work

is not your entire life. If you are able to do something that you love, that’s great. But even then, you need more. Having meaningful hobbies and activities helps to in-crease your sense of life satisfaction, gives you an oppor-tunity to shift your perspective on things, and can in-crease creative thinking at work as you apply that new perspective to work situations.

• Talk to a professional.Burnout is a complex issue that is influenced by both

internal and external factors. Talking with a trained mental health professional (and perhaps a career coach) can help you break down the various elements that are contributing to the burnout.

Seek help sooner rather than later. The sooner that a significant issue is addressed, the easier it is to effect a positive change.

Feeling the burnout? Take these steps to recharge

New firm, same experienced lawyers.Wimbish Gentile McCray & Roeber PLLC

Wimbish Gentile McCray & Roeber PLLC8730 Stony Point Parkway, Suite 201

Richmond, VA 23235Phone: (804) 510-0870 | wgmrlaw.com

We congratulate Randy Wimbish, Colleen Gentile, Joel McCray and Ruth Griggs

on their inclusion on the 2015 Million Dollar Med Mal Defense Verdicts list.

Matthew L. CurtisColleen M. Gentile

Ruth GriggsL. Thompson “Tom” Hanes

Ian Lambeets

Joel M. McCrayKenneth T. Roeber

Katherine C. SkillingMichelle L. Warden

Carlyle R. “Randy” Wimbish, III

5


By Peter Vieth

The children of a woman who died from a long-untreated blood infec-tion after being seen at a hospital emergency room will share in a $1.1 million settlement of a claim against the hospital and the ER doctor.

The settlement left a novel legal is-sue unresolved: The woman’s estate had sought to bar a doctor’s undocumented claim that the patient had refused admis-sion. The estate’s attorney maintained the doctor should not be allowed to testify about the patient’s alleged refusal when the doctor failed to make any record of it in the medical charts.

The estate asserted claims under both the federal “patient dumping” law – the Emergency Medical Treatment and La-bor Act – and under state medical mal-practice standards. A federal judge ruled last year that the state law claims would remain in the case pursuant to the feder-al court’s supplemental jurisdiction.

Lynchburg attorney James B. Feinman, counsel for the estate, said he accepted the defendants’ offer out of concern about how a jury might regard the value of the case. The deceased patient was an IV drug abuser who previously had given up custody of her two children, the beneficia-ries of her estate.

The 27-year-old patient came to the emergency department on Nov. 25, 2014, with severe sepsis, hyponatremia and probable bloodstream infection, accord-ing to a summary provided by Feinman.

A blood sample was sent for analysis on a “stat” basis, but the patient was discharged before culture results were obtained.

The doctor discharged her with a diag-nosis of sinusitis and a prescription for oral antibiotics.

The lab results were positive for staph-ylococcus aureus in the patient’s blood-stream, establishing the “emergency medical condition” of staph aureus septi-cemia. The patient required hospitaliza-tion and long-term intravenous antibiotic treatment, Feinman said.

An emergency department nurse re-ceived the lab report, but never advised a doctor. The hospital never contacted the patient to tell her she had a bloodstream infection.

The patient returned and saw the same doctor 17 days later. She had not received any treatment for the blood infection in the interim.

While waiting for the doctor to start her on IV antibiotics, the patient had a stroke from a clot released by an erratic heartbeat caused by the infection, Fein-man said. She was partially paralyzed

and remained hospitalized until her death on March 12.

The ER physician claimed he knew of the patient’s serious condition when she first arrived at the hospital and tried to admit her. She refused, the doctor said.

The medical records showed the patient was discharged, but the doctor testified that he forgot to write down that he of-fered admission and the patient refused.

Feinman asked the judge to bar the doctor’s testimony about the patient’s purported refusal.

The lawyer pointed to a state regula-tion that requires doctors to maintain ac-curate medical records. Because the doc-tor, by his testimony, violated that rule, he should not be allowed to profit from his wrongdoing, Feinman argued.

“You can’t let him get the benefit of breaking that law,” Feinman told the judge.

“This is a whole new line of argument that had never been tried, never been liti-gated, never been decided,” he said.

The case settled before the judge could rule on the issue. Mediation was conduct-ed with retired U.S. Magistrate Judge B. Waugh Crigler.

“The estate was of the opinion it could not afford to gamble the offer of $1.1 million given the decedent’s admitted IV drug use,” Feinman wrote in a settle-ment report.

The money recovered for the patient’s children, ages 8 and 12, was placed in long-term structured settlement funds.

The identity of the parties is not being disclosed pursuant to the parties’ confi-dentiality agreement, which allowed a report on the details of the case.

Attorneys for the defendants declined comment.

Settlement is $1.1M in hospital death case

Wrong leg | n continued from page 3

the suit said.In the operating room, however,

Mukherjee “obtained arterial access and proceeded to operate on the RIGHT leg,” the suit read. “Dr. Mukherjee was oper-ating on the wrong leg,” the suit alleged.

The suit contended that Mukherjee falsely documented a finding of “vaso-spasm” in the right leg to cover up his mistake and then discontinued the pro-cedure. He never intervened with the left leg, the suit said.

“Dr. Mukherjee failed and refused to do anything for Mr. Manning’s LEFT leg because doing so would have exposed the fact that he had operated on the wrong leg,” the suit alleged.

Mukherjee later created chart entries suggesting the right leg intervention was appropriate, the suit contended. Those entries were “a knowing and intentional lie,” the suit said.

The doctor then counseled the family to agree to a “do not resuscitate” plan for the 92-year-old Manning, the suit said.

“This appears to be end of life condition and no major intervention should be per-formed,” Mukherjee wrote in the records, according to the suit.

Mukherjee’s recommendation was a “pretense to cover up the fact that he intentionally performed a wrong-leg sur-gery,” the suit said.

Even at his advanced age, the patient seemed to appreciate his predicament, the suit indicated.

A physician’s assistant documented a visit with Manning the day after the sur-gery. He said the patient had “good recall for his age” and told the PA “I have an em-bolus in my left femoral artery.” Manning also told the PA that his left foot hurt as he lay in bed, according to the lawsuit.

Manning was discharged the day after surgery and died two days later in hos-pice care.

“With proper treatment, Mr. Manning would have avoided his pain, suffering and untimely death,” the suit alleged.

The suit also claims the hospital and a physician group “ignored the incident” and later made Mukherjee the chief of vascular surgery for INOVA Fairfax Hospital.

Seven weeks after Manning’s death, Mukherjee sought to explain the circum-stances with an additional entry in the medical record, the suit said. He wrote that he decided to perform the procedure on the right leg “based on the symptom-atology of the patient the day of the pro-cedure and my clinical judgement.”

The patient and the family had given verbal consent, the doctor indicated in the note.

That note was “entirely false,” the law-suit said.

The note constituted wire fraud, insur-ance fraud and obstruction of justice, the plaintiff contended.

The lawsuit seeks compensatory and punitive damages for medical negligence, battery, common law civil conspiracy, and fraud.

Bowers said he sent a draft of his law-suit to representatives of the defendants before filing, but they declined to engage in settlement discussions.

Bowers said the wrongdoing was plain to see. There were “repeatedly obvious misrepresentations in the records,” he said in an interview.

“It seems like one of those ‘hand in the cookie jar’ incidents,” Bowers said.

“You just can’t go in and change records like this in 2014 without leaving a trail,” he added.

Mukherjee has been in active clinical practice for 41 years and is board-certi-fied in general and vascular surgery, ac-cording to records of the state Board of Medicine. The record shows no reported paid claims in the past 10 years.

Richmond lawyer Colleen M. Gentile confirmed she is representing Mukherjee, but offered no comment.

CongratulationsJ. Jonathan Schraub

and Paige Levy Smith

J. Jonathan Schraub Paige Levy Smith

Million-Dollar Med-Mal Defense Verdicts of 2015

1111 East Main Street, Suite 2400, Richmond, VA 23219 804-648-1636RICHMOND - CHRISTIANSBURG - FREDERICKSBURG - McLEAN – RALEIGH

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6


$13 Million

Plaintiffs claim earlier C-section would have prevented brain injury

Injuries alleged: Serious physical and neurological injuries including brain damage (infant); serious physical injuries, emotional and mental anguish (mother)

Court: Hanover County Circuit Court

Defense attorneys: Kimberly A. Satterwhite and Ashley Dobbin Calkins, Richmond

The plain-tiff mother, 39 weeks pregnant, presented to the hospital for an elective induc-tion of labor on the evening of Aug. 9, 2011. La-bor progressed throughout the day Aug. 10. She requested an epi-

dural, which was placed at approximately 12:15 p.m.The defendant OB/GYN treated the mother again be-

ginning the evening of Aug. 10. The defendant physician was notified at approximately 2:00 a.m. that the fetus was experiencing continuous variable decelerations, more pronounced with pushing, with decreased variabil-ity. The defendant physician advised the nurse that the patient should continue to push. At approximately 2:26 a.m., the defendant arrived at the mother’s bedside. He recommended a Caesarean section. The plaintiff infant was delivered at 2:52 a.m.

The infant was initially described as floppy and cy-anotic with irregular respirations. His scores were low and he later was diagnosed with cerebral palsy.

Defendants’ neuroradiology expert testified that, based on findings on the CT scan taken at 10 hours of life, the infant’s brain injury most likely occurred at the latest at approximately 6:40 p.m. on Aug. 10, seven hours before plaintiffs’ experts had opined that the de-fendant had breached the standard of care and caused injury to the mother and infant. After seven days of trial, the jury returned a verdict in favor of the defendant doc-tor and his practice.

$5 million

Plaintiff claimed cardiologist failed to diagnose impending heart failure

Injuries alleged: Congestive heart failure, hospitalization and stroke

Court: Roanoke Circuit Court

Defense attorneys: Kathleen M. McCauley and Susan L. Kimble, Richmond

In 2002, plaintiff was diagnosed with cardiomyopathy, likely viral, and ventricular tachycardia. Echocardiogra-phy indicated severe disease. An AICD was placed, and plaintiff was prescribed medications. A repeat echocar-diogram in 2004 showed no improvement, and plaintiff followed up with the defendant cardiologist approxi-mately every six months between 2002 and 2008.

Beginning in July 2008, plaintiff reported increased stress at work. In August, he began seeing a gener-al surgeon for epigastric discomfort. Plaintiff visited

the emergency department on Sept. 19, 2008, complaining of a brief episode of chest pain. A chest CT was negative for pul-monary emboli.

Several days later, plaintiff followed up with his last visit to the cardiologist. Plaintiff was admitted to the hospital on Oct. 13 with complaints of abdominal pain and short-ness of breath. On the third hospital day, plaintiff was diagnosed with congestive heart failure. He suffered an embolic stroke on the seventh hospital day. In 2012, plaintiff underwent heart transplant.

Plaintiff alleged that the defendant cardiologist failed to appropriately monitor and control his blood pressure, failed to order serial echocardiograms and failed to di-agnose impending congestive heart failure, beginning in July 2008. Plaintiff further alleged that due to the cardiologist’s negligence, he required hospitalization for congestive heart failure and suffered a stroke.

The jury deliberated for two hours and 20 minutes and returned a defense verdict.

$5 million

Plaintiff claims spinal surgeon’s posterior approach caused paraplegia

Injuries alleged: Paraplegia following back surgery

Court: Fredericksburg Circuit Court

Defense attorneys: Byron J. Mitchell and Coreen A. Silverman, Fredericksburg

Plaintiff, 86, presented to the defendant orthopedic spine surgeon in January 2013 with complaints of gait difficul-ties and im-balance. MRIs revealed ste-nosis due to an extremely rare condition: ossifi-cation of the pos-terior longitudi-nal ligament. In

OPLL, the poste-rior ligament running vertically along the front of the spine becomes calcified, causing lower leg symptoms. Af-ter a neck operation that was an unsuccessful attempt to relieve her symptoms, the defendant eight months lat-er operated on plaintiff ’s thoracic spine. The defendant used a posterior-lateral approach to remove the bony elements in the back of her spine and then removed a small portion of the ossified ligament, which he could access. When the patient awoke in the recovery room, she was paraplegic, and remains so.

Plaintiff sued her spine surgeon, claiming that the defendant should have approached the OPLL from the front or side, and because of his faulty posterior ap-proach and shoddy technique, he manipulated the spinal cord at surgery and caused her paralysis, The defense theme was that defendant elected a reasonable, less in-vasive posterior-lateral approach. Defendant also denied touching the spinal cord and claimed that the post-op imaging was not conclusive as to the cause of injury.

After four-and-a-half days of evidence, the jury de-liberated for about five hours before returning a de-fense verdict.

$4,324,904

Man died of staph infection after suffering injuries in ATV crash

Injuries alleged: Wrongful death

Court: Prince Edward County Circuit Court

Defense attorneys: Carlyle R. Wimbish III and Ruth T. Griggs, Richmond

Plaintiff, 59, was in an ATV rollover accident. At dis-charge, decedent was instructed to follow up with his primary care physician in one week.

On May 4, decedent saw his family doctor, Dr. Hall, who re-ferred him to Dr. Donkor for “pos-sible drainage of left hemothorax.”

Dr. Donkor saw decedent later that same day and recom-mended a course of treatment; decedent wanted these treatments administered and monitored by Dr. Hall.

On May 7, decedent was transported by ambulance to the emergency room. Although the treating emergency physician thought the vital signs and lab results strong-ly suggested an infection, he did not order antibiotics. Rather, he transferred the decedent to VCU. A blood cul-ture indicated a staph aureus, but he did not report this result. Decedent remained at VCU until May 11, when he died of an untreated infection.

Dr. Donkor was the only physician sued by the dece-dent’s estate. The plaintiff ’s experts contended that Dr. Donkor breached the standard of care by not admitting the decedent to the hospital from his office on May 4. Dr. Donkor presented the testimony of a pulmonologist, who testified that the standard of care did not require him to admit the decedent to the hospital that day.

The jury deliberated for approximately one hour be-fore returning a defense verdict.

$3,500,000

Laparoscopic prostatectomy was complicated by bowel injury

Injuries alleged: Bowel perforation and injury leading to subsequent surgeries

Defense attorneys: Sean P. Byrne and Meredith M. Brebner, Glen Allen

Plaintiff, 59, was a minister. He was diagnosed with prostate cancer. Plaintiff ’s treating urologist discussed treatment options with the patient, who opted to explore surgical treatment. He was referred to the defendant urologist, who was experienced in performing robotic-as-sisted laparoscopic prostatectomies.

Plaintiff underwent such an operation in January 2013. During surgery, the defendant urologist recog-nized and repaired a bowel perforation likely caused by the initial trocar insertion. After the initial surgery, the

MILLION-DOLLAR DEFENSE VERDICTSVIRGINIA’S MILLION-DOLLAR MED-MAL DEFENSE VERDICTS OF 2015

METHODOLOGYThe survey of “Virginia’s Million-Dollar Med Mal Defense Verdicts” survey is compiled from the

Verdict & Settlement Reports published by our sister newspaper, Virginia Lawyers Weekly. In each of these cases, the amount the plaintiff sued for, or the final demand for settlement, was at

least $1 million. The recover in each was the same – zero, since the defense prevailed. The “size” of the verdict is based on the value of the demand.

To qualify, a verdict must have been returned by a jury in 2015. The 2015 survey features 26 verdicts.

CALKINS

GRIGGS

KIMBLE

SILVERMAN

SATTERWHITE

WIMBISH

McCAULEY

MITCHELL

7


MILLION-DOLLAR DEFENSE VERDICTS

defendant urol-ogist disclosed the bowel injury to plaintiff and his family. He kept the patient in the hospital until post-oper-ative day three for careful moni-toring. As of the date of discharge, the patient was feeling well and was discharged home.

On the sixth post-operative day, the patient returned to the emergency room. A CT scan confirmed a bowel leak, and plaintiff underwent repair surgery performed by a general surgeon in consultation with the defendant urologist.

In discovery and at trial, plaintiff repeatedly denied the defendant urologist (or any physician) had ever ad-vised him of the risks of surgery and specifically the risk of bowel injury. But the jury was presented with medical records and documenting his specific risk factors and in-formed consent discussions.

After less than 20 minutes, the jury returned a verdict in favor of the defendant urologist and his employer.

$3,100,000

Hospital patient died from complications of sickle cell disease


Court: Arlington County Circuit Court

Defense attorneys: Susan L. Mitchell, Matthew D. Banks and Judd P. Altman, Fairfax

Decedent, 19, suffered from sickle cell disease. She presented to Virginia Hospital Center-Arlington with signs and symptoms consistent with sickle cell vaso-oc-clusive pain crisis. She was transferred to the ICU with plummeting oxygen saturation levels and respiratory distress. Chest X-rays and CT scan showed significant bilateral basilar airspace disease. The patient’s course continued to worsen and she died.

Plaintiff presented evidence that the patient was suffering from acute chest syndrome, which is a seri-ous complication of sickle cell disease. Plaintiff ’s expert intensivist/pulmonologist testified that the standard of care required the defendants to obtain a hematology consultation and to have ordered a special blood trans-

fusion known as an exchange transfusion in order to properly treat the patient’s acute chest syndrome.

Defense experts testified that under the circumstanc-es the standard of care required neither hematology consultation nor exchange transfusion prior to the time that those steps were, in fact, taken. Defendant’s pul-monology expert testified that the patient was suffer-ing from severe pneumonia, likely due to an aspiration event, which took her life in spite of appropriate care by defendants.

Plaintiff presented rebuttal expert testimony that the patient did not have pneumonia.

The jury returned a defense verdict on day seven. Plaintiff ’s petition for appeal is pending with the Supreme Court of Virginia.

$3 million

Patient with history of sleep apnea died during surgical recovery


Court: Fairfax County Circuit Court

Defense attorneys: Byron J. Mitchell and Lynne C. Kemp, Fredericksburg

The dece-dent, 63, under-went a five-hour back surgery on March 23, 2009, at Inova Fairfax Hospital. Her medical history was significant for obesity, se-vere obstructive sleep apnea, re-

VIRGINIA’S MILLION-DOLLAR MED-MAL DEFENSE VERDICTS OF 2015

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nal failure, congestive heart failure, hypertension and diabetes. Surgery was uneventful. Decedent emerged from anesthesia smoothly. Despite receiving the opioid, Dilaudid, for her post-operative pain, decedent showed no signs of obstruction, apnea or respiratory difficulty. Decedent was transferred to the orthopedic floor at 4:17 p.m, where she dozed off to sleep.

At approximately 5:00 p.m., decedent’s son noticed that her customary noisy snoring had stopped. He sum-moned help. A Code Blue was called. Despite being re-suscitated within minutes, decedent never regained consciousness and was diagnosed with brain damage. A week later, the family elected to withdraw life support. The surviving adult children sued the anesthesiologist, alleging that he failed to order that the decedent be dis-charged from the PACU to a continuously monitored bed with a continuous positive airway pressure machine. The defense argued that the defendant acted reasonably in his anesthesia plan, including sending the decedent to the orthopedic floor given her outstanding course in the PACU. The jury deliberated for more than seven hours over two days before returning a defense verdict.

$3 million

Infant had no long-term deficits from placental disruption

Injuries alleged: Placental disruption during Caesarean section

Court: Norfolk Circuit Court

Defense attorneys: Kimberly A. Satterwhite and Sandra Morris Holleran, Richmond

Plaintiff, age 38, underwent an elective Caesarean section on Nov. 13, 2009. Her prenatal course had been complicated by gestational diabetes and concern regard-

ing placental loca-tion. After a series of ultrasounds, the final ultra-sound revealed an anterior low-lying placenta and ma-ternal-fetal medi-cine recommend-ed that plaintiff be managed as a previa patient with delivery by C-section.

During the C-section, the defendant OB/GYN per-formed a transverse low incision in the lower uterine segment. In doing so, the defendant disrupted and en-tered a small portion of the placenta, consistent with an anterior previa, to deliver the infant. The infant’s arte-rial and venous cord blood gasses at birth were normal. Blood gasses drawn approximately 40 minutes later in the nursery were abnormal and the infant was trans-ferred to a NICU at another facility where the infant was diagnosed with anemia and other medical issues. The infant fully recovered and was discharged after 31 days, with the anemia and all other medical issues re-solved halfway through the NICU stay. The infant had no neurological or developmental deficits from the birth and subsequent hospitalization in the NICU.

On the third day of trial, the jury returned a verdict in favor of the defendants.

$3 million

Patient fainted and struck his head after getting an X-ray

Injuries alleged: After falling, plaintiff developed a large brain hemorrhage

Court: Arlington Circuit Court

Defense attorneys: Byron J. Mitchell and Kristina L. Lewis, Fredericksburg

The plain-tiff, an active 52-year-old and a high-earning tax attorney with the IRS, fell off his bicycle as he rode home from work, striking his left shoulder. He walked his bike home, show-

ered and then he and his wife went to the Virginia Hospital Center ER. He denied hitting his head to the triage nurse.

The defendant physician’s assistant evaluated the plaintiff and ordered X-rays, which revealed a collapsed lung and several fractures. After examining the plaintiff, the pulmonologist recommended a repeat chest X-ray to see if the pneumothorax had enlarged. Immediately af-ter the repeat chest X-ray, while standing, the plaintiff exclaimed, “It hurts,” fainted and struck his head on the floor. A code was called. Plaintiff underwent life-saving brain surgery at 2:00 a.m. to relieve a large intracranial bleed. He suffered through 11 months of rehabilitation before returning to work.

Plaintiff sued the PA and ER physician, alleging that


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they underestimated his injuries. The defendants ar-gued that the plaintiff ’s fainting episode after his repeat chest X-ray was completely unforeseeable given that he had never complained of feeling dizzy, lightheaded or weak in the ER. After five days of evidence, the jury de-liberated for an hour before returning a defense verdict.

$3 million

Diabetic lost full use of hand after mole removal surgery

Injuries alleged: Loss of significant use of dominant hand

Court: Richmond Circuit Court

Defense attorneys: Coreen A. Silverman and Isaac McBeth, Richmond

Defendant re-moved a bleed-ing mole from the right index finger of plain-tiff, a diabetic. Plaintiff request-ed antibiotics but the defendant declined and ad-vised her that she did not need it. Less than 24

hours after surgery, she notified defendant that she was experiencing pain. Defendant prescribed Hydrocodone, which she took without much relief. Several days later, she notified the defendant that her hand was red, swol-len and painful. Defendant immediately diagnosed her with an infection and prescribed oral antibiotics and additional pain medications. Defendant examined her hand on June 23, and admitted her to the hospital for

intravenous antibiotic therapy, where she stayed five days. Plaintiff underwent approximately five months of hand therapy to regain function in her hand.

Plaintiff filed suit seeking $3,000,000 in compensato-ry damages for loss of significant use of her dominant hand due to the defendant’s alleged failure to prescribe antibiotics and failure to timely diagnose and appropri-ately treat the infection.

Defense experts testified that the defendant complied with the standard of care, that the plaintiff ’s incision became contaminated several days after surgery from lack of adequate hand washing, and that intravenous antibiotics alone cured the infection.

The jury returned a defense verdict within 10 minutes of deliberating.

$3 million

Juror misconduct was alleged in med-mal trial

Injuries alleged: Anoxic brain injury and death


Defense attorneys: Sean P. Byrne and Meredith M. Brebner, Glen Allen; Robert Donnelly and Robyn P. Ayres-Barber, Glen Allen

This medical malpractice trial involved the death of a patient after an arrest and code during an upper endos-copy. Plaintiff alleged that the defendants were negli-gent in their pre-procedure planning, performance of the sedation and endoscopy, and that the resuscitative ef-forts did not meet the standard of care. After a four-day trial and two hours of deliberation, the jury returned a verdict in favor of all defendants.

Plaintiff’s decedent, 60, was scheduled for an outpatient upper endoscopy with the defendant gastroenterologist.

Several minutes into the proce-dure, the patient retched or coughed, and the gastroenterologist removed the endoscope. She coded, and ul-timately, a breathing tube was suc-cessfully placed by an EMT. The pa-tient was transferred to the hospital, where she was diagnosed with anox-ic brain injury and passed away six days later.

The plaintiff filed a motion chal-lenging the verdict based on an alle-gation of juror misconduct and out-side influence. An alternate juror alleged that a fellow juror had told her she had consulted with a third-party physician friend during trial. The issue was briefed and affidavits were presented. After a hearing with testimo-ny from the jurors, the trial court denied plaintiff ’s mo-tion and upheld the verdict.


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$2,900,000

Docs’ records contradicted plaintiff’s version of events

Injuries alleged: Pain and suffering due to alleged negligence in diagno-sis and treatment

Court: District of Columbia Superior Court

Defense attorneys: Stephen Altman and Judd Altman, Fairfax

Plaintiff un-derwent an ACL reconstruction with a ham-string graft. Af-terwards, plain-tiff presented to defendants’ office for her post-operative visit. Plaintiff alleged that she told defendants

of a fever, chills, pain and nausea. Defendants denied any mention of fever or chills. The medical records of the defendants as well as the subsequent treating phy-sicians contradicted plaintiff ’s version of events. Plain-tiff claimed that administration of IV antibiotics at the first post-operative visit would have prevented her joint infection and subsequent bacteremia. The jury deliber-ated for three hours and returned a verdict in favor of all defendants.

$2,500,000

Closure device slipped out of place during heart surgery

Injuries alleged: Complications from cardiac procedure causing stroke leading to significant neurologic injury and profound disability

Attorneys for defendant: Sean P. Byrne & John E. Peterson Jr., Glen Allen

The plaintiff, 48, was a cabi-net finisher. He previously un-derwent triple bypass surgery. During routine follow-up after the bypass sur-gery, plaintiff ’s treating cardiol-ogist diagnosed an atrial septal

defect – a hole in the atrial septum. The cardiolo-gist referred plaintiff to the defendant intervention-al cardiologist, who had experience treating these defects. The defendant physician sought to close the hole with device known as an atrial septal occlude. During the closure procedure, the device slipped out of place, ultimately requiring open-heart surgery to retrieve the occluder and close the defect.

Following open-heart surgery to remove the device, the plaintiff had an embolic stroke, which he attributed to the ASO blocking the left ventricular outflow tract.

The plaintiff ’s expert in essence opined that the device must have been too small, causing it to embo-lize. The opposing experts offered conflicting theories and analysis of the measurement of the size of the device and the reasons why the device came out of

position and could not be readily retrieved.The defense argued that the defendant physician ac-

curately sized the hole, but variations in the anatomy and heart tissue were such that the device did not stay in place. The trial lasted five days. After getting an Al-len charge, the jury returned a defense verdict after five hours.

$2,200,000

Child with sleep apnea died of cardiac arrhythmia after surgery


Court: Fairfax County Circuit Court

Defense attorneys: Richard L. Nagle and James N. Knaack, Fairfax

P l a i n t i f f ’ s decedent, a 5-year-old male with history of chronic severe obstructive sleep apnea, under-went a tonsil-lectomy and adenoidectomy surgery (T&A) to seek relief from the ongo-

ing obstructions in the airway. The patient tolerated the procedure well and was discharged after appropriate post-anesthesia care unit observation and evaluation. Several hours later, the plaintiff, decedent’s mother, found him unresponsive on the family room couch and 911 was called. Despite significant resuscitative efforts, the decedent was pronounced dead at the hospital. The


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medical examiner found that the decedent died of a car-diac arrhythmia of unknown etiology.

Plaintiff filed suit in the Fairfax County Circuit Court, alleging that the decedent was not an appropriate pa-tient for outpatient T&A because he had severe obstruc-tive sleep apnea.

Defense standard of care experts testified that the de-fendant physician’s care and plan for the T&A surgery were appropriate and reasonable for the patient in that case. A defense causation expert testified that genetic testing from DNA samples kept by the medical examin-er’s office found gene mutations that show the decedent had a rare inheritable cardiac conduction disorder called Brugada Syndrome, which is known to cause sudden cardiac death.

After a five-and-a-half day trial, the jury deliberated for approximately 90 minutes and returned a defense verdict.

$2,150,000

Bone gave way unexpectedly during back surgery

Injuries alleged: Laceration to the aorta during spine surgery


Defense attorneys: Ronald P. Herbert and Todd D. Anderson, Richmond

Plaintiff, a 51-year-old nurse with a history of back surgery, underwent surgery to fuse four vertebrae us-ing a minimally invasive technique. A preoperative DEXA scan confirmed good bone quality to support a fusion. Surgery proceeded uneventfully at L4-5 and L3-4. However, when using a Cobb elevator to remove the disk at L2-3, the vertebral body gave way, causing the instrument to slip anteriorly. Shortly thereafter, her blood pressure dropped and an injury to the great

vessels was sus-pected. The pa-tient coded and had to be resus-citated on the operative table. A vascular sur-geon was called who repaired a rent in the aor-ta but the pa-tient required

significant blood transfusions. Plaintiff proceeded to trial against the orthopedic surgery group, but not the surgeon and claimed she suffered an anoxic brain injury, gait prob-lems and an inability to return to work. At trial, the defense produced expert testimony that the injury was not foreseeable, particularly in light of the DEXA scan which revealed adequate bone quality. A defense radiologist reviewed postop images showing the loca-tion where the bone gave way, causing the instrument to slip leading to the injury and refuted the claim of anoxic brain injury. The jury deliberated for approxi-mately 90 minutes before returning a defense verdict.

$2 million

Patient coded multiple times during placement of catheter


Defense attorneys: Byron J. Mitchell and Paul Walkinshaw, Fairfax; Lee Rutland, Annapolis, Maryland

Decedent, age 60, was admitted to Inova Fair Oaks Hospital on June 20, 2012, with an infected hemodialy-

sis catheter. Her medical history was significant for two failed kid-ney transplants, l o n g s t a n d i n g dialysis use (15 years), coro-nary artery dis-ease and hyper-tension. Because of her years of dialysis and dis-eased and scarred vasculature, the decedent had one re-maining viable vein for dialysis access, namely, her left internal jugular. The defendant interventional radiol-ogist removed the infected catheter and placed a tem-porary one without incident. Antibiotics were started to treat the patient’s infection and once that resolved, the plan was to insert a permanent dialysis catheter.

Decedent was cleared for permanent catheter ex-change. Problems arose and the defendant suspected a perforation somewhere in the superior vena cava. Ef-forts to repair were unsuccessful and the decedent died.

Decedent’s surviving husband of 37 years sued the in-terventional radiologist and the hospitalist who ran the code for wrongful death. The interventional radiologist’s experts testified that the defendant’s multiple attempts to diagnose and repair the perforation were timely, had to be aborted when she arrested, and that the decedent passed away in spite of his efforts, not because of them. The jury heard evidence for three days. They deliberated on day four for approximately two hours before return-ing a defense verdict for both physicians.


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$2 Million

Man diagnosed with blood disorder discharged from hospital


Court: Norfolk Circuit Court

Defense attorneys: Sean P. Byrne, Glen Allen; Julie C. Mayer, Virginia Beach (attorneys for emergency medicine physician); Ronald P. Herbert and Katherine W. Tanner Pilcher, Richmond (attorneys for hematologist)

On a Sunday morning in 2009, the 65-year-old decedent presented to the emergency department with symptoms of worsening skin rash all over his body. He had recently suf-fered from a viral illness. The emer-gency physician diagnosed a rare bleeding disorder where the body at-tacks and destroys its own platelets.

The emergency medicine physi-cian consulted with the on-call he-matologist. The physicians agreed

on a diagnosis and a treatment plan.

The patient was to follow up with his established hema-tologist the next morning.

The decedent was discharged from the hospital in the late morning, but returned by ambulance later that day. When he was seen again in the hospital, he had signs and symptoms of a severe intracranial hemorrhage. The decedent died the following day in the hospital.

The plaintiff filed suit in Norfolk Circuit Court against the emergency physician and hematology consultant. The plaintiff alleged that both the defendants should have ordered additional treatment, which the plaintiff alleged, would have prevented the intracranial bleed.

Defense experts countered that the treatment plan met the standard of care and that steroids were the cor-rect initial therapy for this rare bleeding disorder. After a five-day trial and deliberation by a jury for less than one hour, the jury returned a verdict in favor of both of the defendants.

$2 million

Small intestine perforated during gynecological surgery

Injuries alleged: Permanent small bowel injury, extensive scarring, low back pain due to weakened abdominal muscles

Court: Fredericksburg Circuit Court

Defense attorneys: Byron J. Mitchell and Coreen A. Silverman, Fredericksburg

Plaintiff saw the defendant for longstanding pelvic pain due to uterine fibroids. A laparoscopic hysterecto-my was planned. The defendant started the laparoscopic procedure but concluded that severe dense adhesions ruled out laparoscopy, and thus converted to an open sur-gery. The defendant asked the on-call trauma surgeon

(trauma surgeon #1) to take down the extensive adhesions. The defendant re-moved the uter-us, ovaries and fallopian tubes. The patient did well initially, but on post-operative day three she be-came severely hypotensive and tachycardic.

Plaintiff was rushed to the operating room for sus-pected bowel perforation and sepsis. Trauma surgeon #2 found a small bowel perforation. He did not say any-thing about it to the family or defendant, but 17 days later, trauma surgeon #2 finalized his op report, stating that the cause of the perforation was an abdominal wall suture. Plaintiff was in a medically induced coma in the ICU for a month, and she underwent several abdominal washout surgeries and a complex abdominal wall recon-struction. She sued the defendant for negligently plac-ing a suture through the small bowel when he closed the abdominal muscles.

The defendant’s trauma surgeon expert testified that the small bowel was more likely injured during the diffi-cult lysis of adhesions – not from a suture.

After four days of evidence, the jury deliberated for three hours before returning a defense verdict.


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$1,950,000

Plaintiff claims timelier procedure would have prevented brain injury


Court: Chesterfield County Circuit Court

Defense attorneys: J. Jonathan Schraub and Paige Levy Smith, McLean

Decedent, a 39-year-old mar-ried police of-ficer with two young sons, had been struggling with headaches accompanied by nausea and vom-iting.

On Oct. 4. he was transported to a small, com-

munity hospital, arriving there at 4:39 a.m. The patient went for his MRI that began around 9:37 a.m. The MRI showed a colloid cyst with associated significant hydro-cephalus of the lateral ventricles. The admitting neuro-surgeon was paged and at approximately 10:20 a.m. was updated on his patient’s status. The plan was for neu-rosurgery at 1:00 p.m. The patient was received in the preoperative holding area at 2:10 p.m. He underwent a right frontal craniotomy and excision of colloid cyst with placement of a ventricular catheter.

Post-operatively, the patient did not awaken. He re-mained comatose for days. Radiologic imaging revealed that the patient had suffered severe brain herniation, resulting in multiple strokes and profound brain injury.

The patient was discharged to an acute rehabilitation facility on Oct. 30. He later died Nov. 18.

The principal allegation against the defendant neuro-surgeon was that he breached the standard of care by not placing a ventriculostomy earlier in time, after receiving the update on his patient from the ICU nurse at around 10:20 a.m; the jury found no breach of the standard of care and thus did not reach the issue of causation.

$1,925,000

Patient with history of gastric reflux died after surgery


Court: Danville Circuit Court

Defense attorneys: Robert F. Donnelly and Marshall H. Ross, Richmond

Decedent, 47, was admitted to Danville Re-gional Medical Center for a split thickness skin graft to his right forefoot. During his pre-operative assessment, the patient denied GERD, but listed

Nexium as a cur-rent medication. He denied any other significant med-ical history. During induction of anesthesia, the patient vomited and was immediately suctioned and intubated. The anesthesiologist performed bronchoscopy and gas-tric lavage while the planned skin graft was completed. The patient was then extubated and sent to the recovery room. While in recovery, the patient became tachypneic with low oxygen saturations. He was reintubated and sent to the ICU. Labs came back showing his potassium count was extremely elevated and his heart failed. Re-suscitative efforts were unsuccessful.

Plaintiff ’s evidence alleged that the pre-operative anesthesia work-up negligently failed to identify the patient’s history of active reflux, which would have war-ranted intubating the first-time general anesthesia pa-tient and preventing aspiration. Moreover, it was alleged that defendants should have initiated pre-admission lab testing, which would have identified any potential kidney issues. Finally, for a simple grafting procedure, plaintiff alleged that regional anesthesia, not general, should have been used.

The defense argued that the defendant met the stan-

dard of care and none of the health care providers who treated him on that day could have predicted he suffered from hyperkalemia, which, ultimately, was responsible for his death.

$1,825,000

Plaintiff said foot surgery was unnecessary, led to complications

Injuries alleged: Unnecessary surgeries and inappropriate response to post-operative infection, leading to loss of function in plaintiff’s left foot

Court: Rockingham County Circuit Court

Defense attorneys: C.J. Steuart Thomas III and Tate C. Love, Staunton

Defendant di-agnosed plaintiff with metatarsal-gia, or pain in the ball of her foot. Defendant eventually deter-mined that this excessive pain and pressure on the ball of the plaintiff ’s left foot was caused

by both positional and structural deformities. After nine months of unsuccessful conservative thera-

py, the defendant performed a number of procedures in a single surgical setting, all of which were designed to alleviate the metatarsalgia.

Though the first surgery had been successful in alle-viating the pain in the ball of plaintiff ’s foot, the plain-tiff ’s left foot issues were complex. About a year after the original surgery, another orthopedist rendering a second opinion referred plaintiff to Dr. Park, a U.Va. orthopedic foot and ankle surgeon, who eventually determined that the plaintiff had osteomyelitis, or a bone infection, in her left heel; he operated and addressed that problem.

Plaintiff ’s experts alleged that most of the surgeries performed by the defendant were unnecessary. They fur-ther alleged that the osteomyelitis diagnosed and treat-ed by Dr. Park was a result of the defendant’s inappro-priate diagnoses and treatment of plaintiff.

The defendant’s experts testified that all of the sur-geries performed by the defendant were indicated and adequately performed. After four days of trial and four hours of deliberation, the jury returned a unanimous verdict in favor of the defendant.

$1,750,000

Plaintiff: Aneurysm should have prompted immediate surgery


Court: Winchester Circuit Court

Defense attorneys: Charles Y. Sipe, Charlottesville; Jessica M. Flage, Norfolk

The decedent, 58, presented to the emergency department with chest pain. He reported sudden onset the day before. Past med-ical history was significant, in-cluding coronary artery disease and ascending

aortic aneurysm, among other concerns.A chest CT referenced an increase in size of the an-

eurysm from a previous study where it was previously noted to be 4.4 cm. The decedent was admitted for obser-vation to be followed by the defendant hospitalist.

The decedent remained on cardiac monitoring through the night and was discharged home the following after-noon.The defendant signed discharge instructions noti-fying the patient to call 911 should he have chest pain or unrelieved pain.

The decedent presented to the emergency department three days later with an altered mental status. A tho-

racic CT showed concern for aortic dissection. The de-fendant did not see the decedent at any time during this presentation to the hospital. Ultimately, the decedent died due to the dissection and resulting stroke.

Defense experts testified it was not a breach of the standard of care for the defendant physician not to ob-tain the consultation to rule out aortic aneurysm, as ar-gued by the plaintiff. On the third day of trial, the jury returned a verdict in favor of the defendant physician.

$1,550,000

Docs claimed post-surgery bleeding was acute, not slow


Court: Winchester Circuit Court

Defense attorneys: Colleen Gentile and Ruth Griggs, Richmond

Plaintiff al-leged that the decedent suf-fered a slow bleed beginning shortly after cardiac bypass surgery, that nurses failed to appreciate same over the course of 10 hours, and

that the decedent suffered cardiac arrest and brain injury as a result. The defendants argued that the decedent suffered a sudden acute bleed within minutes of his arrest, that this was a known complication of cardiac bypass surgery, and that, despite extraordinary efforts at resuscitation, brain in-jury resulted.

$1.5 million

ER patient did not reveal combination of drugs that led to overdose


Court: Roanoke Circuit Court

Defense attorneys: Joel McCray and Ruth Griggs, Richmond

The plain-tiffs alleged that their son, who presented to the emergen-cy department after taking an overdose of Dex-tromethorphan, received improp-er treatment. The defendants argued that the

son deliberately, with the intent to commit suicide, with-held from providers in the ED information regarding his recent consumption of Selegiline, an anti-depressant medication, which reacted with the overdose of Dextro-methorphan and resulted in his death. The defendants sought to present evidence and jury instructions on ille-gal act, assumption of risk and contributory negligence. The court allowed evidence and jury instructions on con-tributory negligence.

$1,200,000

Complications arose during surgery on broken clavicle

Injuries alleged: Laceration of the subclavian vein during clavicle surgery

Court: Stafford County Circuit Court

Defense attorneys: Byron Mitchell and Coreen Silverman, Fredericksburg

Plaintiff, age 52 and a mailman with the US Post-al Service for 26 years, fell, fracturing his collarbone.


SMITH

ROSS

LOVE

FLAGE

GRIGGS

GRIGGS

SCHRAUB

THOMAS

SIPE

GENTILE

McCRAY

DONNELLY

14



The defendant orthopedic sur-geon treated the plaintiff, who was a two-pack-a-day cigarette smoker, conser-vatively with a sling for three months. Serial X-rays, however, revealed that the fracture was not healing.

The defendant performed an open reduction internal fixation surgery on the plaintiff ’s broken clavicle, affix-ing a metal plate on the top of the clavicle with multiple screws. Plaintiff claimed that as the defendant drilled through the clavicle, he negligently plunged the drill too deeply beyond the clavicle, catching the subclavian vein and tearing a 4-5 cm hole in it. Plaintiff flat-lined on the operating table, but was resuscitated. Because of addi-tional hardware that painfully jabs into his breastbone when he moves his arm, plaintiff claimed that he cannot return to the job he loved as a mailman, or any other job.

Defense experts, both of whom publish and teach on fixation of clavicle fractures, testified that the standard of care does not require dissection and retraction be-cause doing so jeopardizes blood supply to the already

compromised bone. Instead, the defendant reasonably relied on his sense of feel, sight and sound as he drilled. After three-and-a-half days of evidence, the jury delib-erated for two and half hours before returning a de-fense verdict.

$1 million

Bacterial infection worsened after discharge from hospital

Injuries alleged: Severe septic shock

Court: Halifax County Circuit Court

Defense attorneys: Elizabeth Guilbert Perrow and Daniel T. Sarrell, Roanoke

Plaintiff, 59, underwent an urgent laparoscopic cho-lecystectomy that was converted to an open procedure after his gallbladder ruptured, spilling a large amount of purulent bile into the abdominal cavity.

Post-operatively, plaintiff ’s white blood count, BUN and creatinine levels began to rise after surgery; the lev-els were higher the next day. At discharge, plaintiff was switched from intravenous Unasyn to an oral antibiotic

equivalent, Aug-mentin, at 500 mg three times per day.

M o m e n t s after the dis-charge, results of the gallblad-der fluid culture became avail-able, indicating the presence of a bacteria resis-tant to the Augmentin prescribed for plaintiff at dis-charge. Early the next day, plaintiff returned to the hospital for treatment for severe sepsis. His recovery was difficult and slow.

Plaintiff ’s general surgery expert testified that plain-tiff ’s condition— the rising BUN, creatinine and white blood counts—prior to the discharge was consistent with an infection that should have been recognized. The defendant’s general surgery experts and infectious dis-ease expert testified that the standard of care allows a surgeon to treat a patient’s clinical picture and that a surgeon is not required to obtain culture and sensitivity results prior to discharge, even when there is possible contamination of the operative field. The jury deliber-ated for approximately four hours before returning a defense verdict.


SARRELLMITCHELL PERROWSILVERMAN

valawyersweekly.com

15


The Verdicts & Settlements page in Virginia Lawyers Weekly is a forum for lawyers in Virginia to share results of recent cases. It is intended as a tool to help in determining case values for trial or settlement. Submissions are provided by one of the lawyers in the case. Virginia Lawyers Weekly reserves the right to edit submissions for style, language and length.

Settlement

The decedent was incidentally diag-nosed with a suspected cancerous mass in his pancreas in September 2012. The can-cer was totally confined within the head of the pancreas, without metastases. The decedent submitted to a pancreaticodu-odenectomy (also known as a Whipple procedure) performed by the defendant surgeon on Oct. 15, 2012. The defendant was a general surgeon, employed by the hospital, and had not completed a fellow-ship in hepaticobiliary surgery.

Early in the surgical procedure, the de-fendant lacerated what he believed to be the patient’s middle colic vein. He ligated (tied off) this vein and continued with the surgery to resect the pancreas. Approx-imately 45 minutes later, the surgeon realized he had not injured the middle colic vein but instead had lacerated the superior mesenteric vein, a much larger vein in the mesentery. The defendant sur-geon requested the assistance of a vas-cular surgeon who made three attempts to anastomose the lacerated superior

mesenteric vein before obtaining a patent anastomosis. Although the Whipple pro-cedure had not been completed at that time, the defendant surgeon decided to close the patient and transfer him to in-tensive care in the hope that he would be-come hemodynamically stable enough to return to the OR for the completion of the Whipple procedure. While in the inten-sive care unit, the decedent was attended to by a critical care surgeon and received multiple units of blood and blood prod-ucts in an attempt to reach hemodynamic stability. When further attempts to sta-bilize the patient failed, the patient was

returned to the operating room where he exsanguinated on the OR table.

The plaintiff ’s expert opined the defen-dant was negligent in failing to properly identify the patient’s anatomy intraop-eratively. Further, that the defendant failed to properly identify the injured vein and to repair the same during the surgical procedure. The defendants’ ex-perts opined the vein was injured during a “blind portion” of the procedure, and did not constitute medical negligence. One

defense expert opined that, although in-juring the superior mesenteric vein un-der the mistaken understanding that the middle colic vein had been injured was a “technical error,” it was not a deviation from the standard of care.

The statutory beneficiaries were the decedent’s wife of 62 years, his adult daughter, and a grandson from a de-ceased child of the decedent. The case re-solved the week before trial.

[16-T-054]

Doctor tied off wrong vein during pancreas operation

FRITH ELLERMAN

Type of action: Medical Malpractice - Wrongful Death

Injuries alleged: Elderly male patient encountered complications during pancreaticoduodenectomy (Whipple procedure) resulting in death by exsanguination.

Name of case: Estate of Confidential Decedent v. Confidential Surgeon and Confidential Hospital

Tried before: N/A

Date resolved: Mar. 4, 2016

Special damages: Funeral bills and loss of solace, etc.

Verdict or settlement: Settlement

Amount: Confidential

Attorneys for plaintiff: T. Daniel Frith III and Lauren M. Ellerman, Roanoke

Plaintiff’s experts: Christopher L. Wolfgang, MD; Johns Hopkins University Medical Center (Baltimore) Defendant’s experts: Christian M. Schmidt, MD; Indiana University School of Medicine (Indianapolis)

$1,800,000 Verdict

A 57-year-old woman with a histo-ry of failed gastric bypass underwent a breast reduction, abdominoplasty with panniculectomy, and liposuction. Over the next six weeks, the surgical wound deteriorated, developing necrosis while the defendant plastic surgeon saw the patient, reassured her and waited for the wound to “declare.” After a seroma ruptured, the patient went to the ER in Norfolk, where another plastic surgeon took over care and began debriding the wound. He planned a definitive debride-ment two weeks later.

The plaintiff ’s standard of care expert testified the defendant simply over-did it – he took out too much tissue, tissue where he knew the blood vessels lived. The tissue he left slowly died without vital oxygen because the surgeon cut off blood supply. The patient was left with severe lower abdominal scarring and dis-figurement, which would require revision surgery. (The breast reduction was done

properly and was not an issue in the case.)

On pretrial mo-tions the plaintiff succeeded in keeping out “risks of the pro-cedure” and “known complications” be-cause informed con-sent was not an issue, although the defen-dant kept trying to

get around that by referring to “red flags” and “concerns.”

The defendant’s standard of care ex-pert testified that although he had nev-er seen an injury like this to one of his patients, the defendant’s actions still fell within the standard of care. An infectious disease expert testified for the defendants that the patient did not have a systemic infection.

The defendant testified the plaintiff had been “loyal” to him before she saw

another plastic surgeon in Norfolk. He insisted that if she had not gone to Nor-folk, he would have debrided the wound himself, which he had already scheduled to do, and we would not have ended up in court.

After a three-day trial, the jury delib-erated for three and a half hours before returning a verdict of $1.8 million.

[16-T-060]

Plastic surgeon removes too much tissue in procedures

LIVINGSTON

BOGNAR

BROOK

Type of action: Medical Malpractice

Injuries alleged: Severe lower abdominal scarring and disfigurement, which will require revision surgery.

Name of case: Munoz v. Williams, M.D., et al.

Court: Richmond City Circuit Court

Case no.: CL14-2147

Tried before: Jury

Name of judge or mediator: Hon. Gregory L. Rupe


Special damages: $49,938.00 in past medical bills and $60,000.00-$100,000.00 in future medical bills.

Offer: none

Verdict or settlement: Verdict

Amount: $1,800,000.00

Attorneys for plaintiff: Lee Livingston, Lisa Brook and Ellen Bognar, Charlottesville

Plaintiff’s experts: Darrell L. Henderson, MD

Defendant’s experts: Byron Poindexter, MD, David S. Yoho, MD

Defense Verdict

Plaintiff, a 51-year-old nurse with a history of back surgery, underwent sur-gery to fuse four vertebrae (L2-L5) using a minimally invasive technique known as eXtreme Lateral Interbody Fusion (XLIF). A preoperative DEXA scan con-firmed good bone quality to support a fusion. Surgery proceeded uneventfully at L4-5 and L3-4. However, when using a Cobb elevator to remove the disk at L2- 3, the vertebral body gave way, causing the instrument to slip anteriorly. Short-ly thereafter, her blood pressure dropped and an injury to the great vessels was suspected. The patient coded and had to be resuscitated on the operative table. A vascular surgeon was called who re-paired a rent in the aorta but the patient required significant blood transfusions. Plaintiff proceeded to trial against the or-thopedic surgery group, but not the sur-

geon and claimed she suffered an anoxic brain injury, gait problems and an inabil-ity to return to work. At trial, the defense produced expert testimony that the in-jury was not foreseeable, particularly in light of the DEXA scan which revealed adequate bone quality. A defense radiol-ogist reviewed postop images showing the location where the bone gave way, causing the instrument to slip leading to the injury and refuted the claim of anoxic

brain injury. At trial, plaintiff withdrew her nearly $500,000 life care plan when her medical expert could not support the claimed damages on cross-examination.

The jury deliberated for approximately 90 minutes before returning a defense verdict.

[16-T-066]

Type of action: Medical malpractice

Injuries alleged: Laceration to the aorta during spine surgery

Name of case: Confidential


Case no.: Confidential

Tried before: Jury

Name of judge or mediator: Hon. Melvin R. Hughes Jr.

Date resolved: Oct. 29, 2015

Special damages: $1,917,000.00 ($784,000.00 medicals; $650,000.00 lost wages; $483,000.00 life care plan)

Demand: $2,150,000.00 (policy limits)

Offer: None

Verdict or settlement: Defense verdict

Amount: $0

Attorneys for defendant: Ronald P. Herbert and Todd D. Anderson, Richmond

Plaintiff’s experts: Faheem Sandhu, MD (neurosurgery); Robert Banco, MD (orthopedic surgery); Scott Raber, MD (radiology); Jeffrey Kreutzer, MD (neuropsychology); Betty Overbey, RN (life care plan); Albert Jones, MD (PM&R)

Insurance carrier: The Doctors Company

Bone gave way unexpectedly during back surgery

ANDERSONHERBERT

16


$1,200,000 Settlement

In this case, both of plaintiff ’s kid-neys were removed. The patient had a hydronephrotic left kidney secondary to a UPJ obstruction (blockage). He un-derwent a Nuclear Medicine (NM) Scan to estimate the function of each kidney. Due to blockage, the left kidney (moi-ety) functioned at about 20 percent and the right kidney at 80.6 percent. Plain-tiff charged that the surgeon should have merely drained the excess fluid and decompressed the obstructed left organ to allow it maximum utility. If the renal function had been tested af-ter fluids were drained, the left kidney would have increased functionality, be-cause the NM scan showed that blood flow to each moiety was symmetrical. Instead of draining and preserving the kidney, the surgeon decided to perform a left nephrectomy.

Pre-operatively, both the radiologist and the surgeon failed to notice the NM study showed a horseshoe kidney, which means the left unit was joined to the right by an isthmus, or bridge of connective tissue. It is the most com-mon renal fusion abnormality and oc-curs with greater frequency in males. It was plainly visible on the imaging study, but simply overlooked.

Plaintiff ’s experts were to opine that to plan a left nephrectomy was inap-propriate, because a primary repair would have restored function and the object is always to preserve viable kid-ney tissue. This pre-operative mistake in judgment was exacerbated intra-op-eratively, when both kidneys were re-moved. The surgeon documented that s/he held more tissue in her hand than is associated with only one kidney and that she saw a second ureter on the left. The surgeon’s operative note even documents that the patient might have a horseshoe kidney abnormality.

Intra-operatively, while the surgeon held the left unit extra-abdominally, a radiologist was asked if there were

a discrete right kid-ney still inside the abdomen. A ‘point-of-care’ examination was performed. That is, presence of a sec-ond kidney was con-firmed, but no com-prehensive exam was undertaken. What both the radiologist and the surgeon (who also viewed

this ultrasound) failed to appreciate was that the right kidney – which was tethered to the left one by the isthmus – had been pulled away from the liver (its normal situs) and over to midline (center of the abdomen). Because this malposition escaped both physicians, neither stopped to review the NM study for confirmation of the suspected horseshoe configuration and the sur-geon failed to abort the procedure un-til the differential diagnosis could be ruled in or out.

Therefore, the surgeon – who intend-ed (albeit negligently) to remove only the left kidney instead pulled both kid-neys through the surgical incision and cut the vasculature. The bilateral ne-phrectomies left this patient on dialy-sis for over a year, pending transplant surgery. During this time, the patient suffered a stroke (secondary to fluid imbalances, which are an associated risk of dialysis) and multiple infections (peritonitis is also an associated risk of the therapy).

The defense consisted of a denial. Defense experts opined that the sur-geon never actually removed the right kidney. The putative grounds for this opinion was that post operatively the same radiologist documented a “reni-form” shape (resembling a kidney) on ultrasound and concluded it was the right kidney. In depositions, he testi-fied that it “never occurred” to him that the surgeon would have removed both kidneys. Two days later, his partner in-terpreted another ultrasound and com-

pared it to the first one; he explained that the first ‘reniform’ shape was only bowel gas. This second radiologist also saw a reniform shape – albeit in a dif-ferent location. In reality, this, too, was bowel gas. After these two initial stud-ies, all treaters and experts agreed: no other imaging showed any renal tissue, or even a ‘reniform’ shape. Defense ex-perts “could not explain” the absence of both kidneys on imaging, or how the right kidney “disappeared.”

Plaintiff ’s expert pathologist was the only physician to examine the isthmus microscopically. She testified to a 100 percent medical certainty (rather than to a reasonable degree) that the sur-geon excised a horseshoe kidney. De-fendant’s expert pathologist “viewed” the tissue sample, but never examined it under the microscope.

Corroboration came from the pathol-ogy laboratory. The amount of tissue surgically excised and tagged in the path lab corresponded precisely to the amount of tissue measured pre-opera-tively on the NM study. Therefore, all the renal tissue viewed inside the body before the operation was accounted for and sitting in a pathology lab. Natural-ly, plaintiff ’s clinical course was con-sistent with bilateral nephrectomies, as there was no urine output.

Two treating nephrologists also supported plaintiff ’s experts, having documented that their patient was “anephric,” or without kidneys. The transplant surgeon charted that the

need for a kidney transplant was due to “bilateral nephrectomies.” However, the judge refused to permit this entry into evidence, ruling it hearsay, having been based on the transplant surgeon’s conversation with the nephrologist. In so holding, the court rejected the ar-gument that this was part of the chart was admissible as a clinician’s present day impression under §8.01-397.1 and Virginia Rule of Evidence 2:406.

The hospital’s internal investiga-tion was also ruled inadmissible, as privileged under The Patient Safety and Quality Improvement Act (PSQIA or ‘Act’), 42 U.S.C. §299b-2, as imple-mented by 42 C.F.R., Part 3. Under the federal law, privileged work product is narrowly defined as any data, report or analysis which can improve patient safety, or health care outcome, and which is in fact reported to a PSO, 42 U.S.C. §299(b)-21(7); see also, 42 U.S.C. §299b-21(7)(B)(ii). This ruling obtained even though the facility failed to com-ply with the requirement that an in-vestigation be forwarded to a federal repository.

The issue of admitting a clinician’s present day impressions and a hos-pital’s lack of privilege for failure to comply with the Patient Safety Act was mooted by settlement. The case settled against the surgeon for $1.2M and is now to proceed against the radiologist who failed to recognize the isthmus on the NM study.

[16-T-011]

COFIELD

Type of action: Medical malpractice

Injuries alleged: Bilateral nephrectomies

Date resolved: Dec. 9, 2015

Special damages: $5,000,000.00

Demand: $1,500,000.00

Offer: $1,200,000.00


Attorney for plaintiff: Judith M. Cofield, Virginia Beach

Plaintiff’s experts: Dr. Stanley Kogan, Dr. Theonia Boyd, Dr. Douglas Gibson

Defendant’s experts: Dr. Gearhart, Dr. Mergue-rian, Dr. Anthony, Dr. Masters, Dr. Appelbaum, Dr. Arant, Dr. Huff

Insurance carrier: multiple

Surgeon removed both of plaintiff’s kidneys by mistake

$1,800,000 Settlement

On Jan. 23, 2015 the patient under-went a laparoscopic cholecystectomy performed by a general surgeon. After being discharged on Jan. 23, the surgeon did not disclose to the patient, nor to her family, nor did the surgeon note in his op-erative report, that gallbladder remnants were left in the fossa and/or the perito-neum. The day following the surgery, the patient suffered significant and immedi-ate sequelae including nausea, intense abdominal pain and general malaise.

As a result of her worsening conditions, the patient returned to the hospital on Jan. 25. The surgeon was called by the emergency room physician, who indicated to the physician on duty, “normal surgery, uneventful” as recorded in the emergency department documentation note. There-after, the patient condition degraded sig-nificantly, resulting in her being airlifted

to a tertiary referral facility.

On Jan. 26, an open procedure was per-formed at the tertiary facility, wherein the surgical team “en-counter[ed] about 3 L[iters] of pus mixed with bile”, and also encountered an “obvi-ous [iatrogenic] injury to the common bile

duct in the intrahepatic site …a couple of liver lacerations… The common bile duct seemed to have Endo-GIA staplers and these Endo-GIA staplers were progress-ing into the intrahepatic section of the duct. In the intrahepatic section, there was a dehiscence of the staple line where all the bile was pouring”. Given the rapid blood pressure decline experienced by the patient during the procedure, the surgi-cal team made the decision to terminate

the exploratory surgery and resume at a later date.

On Jan. 28, a subsequent surgery was performed, wherein “it was found that this was a remnant of the gallbladder neck, [and] on further inspecting the gall-bladder fossa, it was found that part of the gallbladder was intrahepatic and was still in situ.” The size of the remaining gallbladder removed at the tertiary facil-ity was approximately the same size as what had been originally moved by the surgeon, as evidenced by the surgical pa-thology report.

The failure to disclose and properly document the true nature of the original

laparoscopic cholecystectomy, in terms of the remnant gallbladder (as well as the CBD iatrogenic injury), directly led to the sepsis suffered in January of 2015, and the circulation compromise secondary to severe low blood pressure. As a direct re-sult, the patient had a partial removal of all 10 fingers in May and transmetatarsal amputation on both feet in July of 2015.

On Jan. 22, 2016, a detailed demand letter was mailed to the surgeon in ques-tion. Negotiations ensued with the sur-geon’s insurer. The case settled 47 days after demand, before suit was filed and before defense counsel was retained.

[16-T-052]

Failure to disclose state of woman’s gallbladder resulted in amputations

FAVALORO

Type of action: Medical Malpractice

Injuries alleged: Bile duct injury, full amputation and metatarsal amputation of all fingers and toes



Amount: $1,800,000.00

Attorneys for plaintiff: Mark J. Favaloro, Virginia Beach

$662,500 Settlement

Plaintiff ’s decedent was a 90-year-old woman and a full-assist resident of de-fendant nursing home. While a nurse was changing the patient’s bed linens, the patient was rolled off of the bed and onto the floor by the nurse. As a result of the fall, the patient sustained fractures of her right lower leg, right ankle, right shoul-der and left leg. Due to these fractures,

the patient required extensive treatment and ultimately, ampu-tation of the right leg below the knee. In the months following the fall, the patient developed 13 wounds on her legs, feet, heels and buttocks while under the care of the

defendant nursing home. Defendant nursing home initially denied all respon-sibility for the patient’s injuries but the nurse, by way of deposition, ultimately

acknowledged her failures with respect to her care for the patient. The matter subsequently settled for $662,500.

[16-T-034]

Nursing home resident rolled off bed as nurse changed linens

BENNETT

Type of action: Nursing Home Malpractice

Tried before: Mediation


Amount: $662,500.00

Attorneys for plaintiff: Carlton F. Bennett, Virginia Beach 17


Infection | n continued from page 1

Alipio felt dizzy and had abnormal blood pressure, she said, and after discharge, she suffered increased dizziness, nau-sea, vomiting, diarrhea, gastro-intestinal symptoms, abdominal discomfort and she had a low-grade fever.

Alipio visited the Prince William Med-ical Center on May 25, where a doctor quickly admitted her to the critical care unit. She stayed primarily in that unit until June 3, being treated for the strep-tococcus infection.

The Virginia Department of Health and the Fairfax County Health Department investigated these events and concluded the source of Alipio’s infection was “an employee or agent” of Fair Ridge, Shan-non said in Alipio v. Fairridge OBGYN Associates PC.

“At some point following these inves-tigations, the source of the infection was disclosed to Plaintiff, who filed suit against” Fair Ridge for medical malprac-tice, Shannon wrote. As well, the defen-dant practice “self-reported to the Virgin-ia Department of Health that someone

on its staff had been infected,” and that Alipio had been exposed to this person, which ultimately led Alipio to learn of the source of her infection.

The defendant medical practice argued that Alipio’s med-mal claim was barred by Va. Code § 32.1-38, and the state health department’s confidentiality poli-cy and regulations, because the plaintiff ’s case depended upon information she ob-tained as a result of the state and local investigations.

Under the statute and regulations, phy-sicians and medical care facilities who report instances of certain communicable disease at their facilities are “immune from civil liability or criminal penalty ‘con-nected therewith,’” the defendant argued.

That immunity covered disclosure of pa-tient information and liability for the con-duct of the practice’s employees disclosed in the report, unless the injury could be attributed to gross negligence or malicious intent, under the defense theory.

The plaintiff countered that the statu-tory immunity covered claims connected

to making the report or the disclosure, such as patient lawsuits for breach of duty, breach of confidentiality or defama-tion. Just reporting covered conduct to the state health department did not in-voke such a broad grant of immunity to the doctor, Alipio argued.

Narrower immunityShannon surveyed similar statutes

from other states and assessed the larger context of the Virginia reporting require-ment, noting that it was anchored in a Virginia Code chapter covering disease prevention and control.

Code § 32.1-38 “is focused on providing immunity for the reporting or disclosure of patient information — whether the grievance is due to a breach of patient confidentiality, or errors underlying a claim for defamation — rather than pro-viding immunity for the misconduct de-scribed in the reports themselves,” Shan-non wrote.

Penalties for improper disclosures can include a payment to a local literary fund for unauthorized disclosure of a person’s

HIV status, or a misdemeanor charge for a willful violation of a patient’s confiden-tiality protection.

In order for the language of Code § 32.1-38 “to be consistent with the penalty pro-visions,” Shannon said, the statute “must be read as providing immunity from the specified civil and criminal penalties” that arise from improper disclosures.

The Fairfax court declined “to take such an expansive reading of the statute” as advocated by the defendant, and de-nied the plea in bar.

Because of the way the case had been pled, with the sequence of steps that in-cluded the health department investiga-tions and the defendant’s self-reporting, the case appeared to raise a novel question about Virginia’s reporting requirements.

The defense took a “unique and cre-ative approach” to the mandatory report-ing statutes, said Alexandria lawyer San-dra A. Rohrstaff, who represented Alipio.

Fairfax lawyer Courtney A. Parecki, who represented the defendant, declined to comment on the case.

Defense Verdict

Janet Roberts, a 70-year-old wife and mother of four, developed a sacral decubi-tus ulcer at home, which required a hos-pital admission and antibiotics for a pos-itive wound culture. She was discharged to the defendant nursing home on April 26, 2011, with the defendant physician as her attending. Within days she developed diarrhea, which plaintiff contended was persistent and accompanied by nausea and vomiting. The defendant physician or-dered C. diff testing on May 6, but the test-ing was not done because a sample could not be collected. On May 17, the patient was lowered to the ground by a CNA in the bathroom and was sent to the hospital.

At the hospital, no acute fracture was found, but the patient was diagnosed with a C. diff infection. She was hospi-talized for 11 days and returned to the nursing home. At the end of July 2011, the patient was diagnosed with a femur fracture, which she told her providers happened as a result of the bathroom in-cident on May 17. She underwent a right ORIF procedure on Aug. 2, was put on an-tibiotics, and on August 5, 2011 returned to the defendant nursing home. She soon developed diarrhea again, along with oth-er symptoms. Between Aug. 5 and 20, no C. diff testing was ordered, and the pa-tient was put on broad spectrum antibiot-ics for other infections. Towards the end of the admission, the patient developed severe hypotension, and on Aug. 20, she was sent to the hospital. The patient was found to be in septic shock, and an ab-dominal CT showed diffuse thickening of the colon. She also had pneumonia. A sur-

geon was consulted for C. diff colitis, who determined she was not a surgical candi-date due to hypotension and her comor-bid conditions. A DNR Order was entered, and the patient died on Aug. 22, 2011.

The case was tried against two sets of defendants, the nursing home and the at-tending nursing home physician, and in-volved two separate nursing home admis-sions. The plaintiff ’s experts contended that the defendants failed to timely rec-ognize the two C. diff infections; to recog-nize that broad spectrum antibiotics put the patient at risk for C. diff; and to order C. diff testing or treatment. They fur-ther alleged that due to the persistent C.

diff diarrhea during the first admission, during the bathroom incident the patient sustained the fracture diagnosed two months later. During the final admission, plaintiff ’s experts contended the patient had a clear C. diff recurrence, yet the de-fendants negligently ordered and admin-istered medications that exacerbated the infection. This all predictably resulted in C. diff colitis, sepsis, septic shock, and death, all of which could have been avoid-ed with timely C. diff antibiotics.

The defendants presented evidence that Ms. Roberts was a very complicated pa-tient with an extensive list of underlying problems, including multiple gastrointes-tinal diseases and procedures. Through-out both admissions, she had intermittent

diarrhea, but this was not a significant change from her baseline, and nursing home staff regularly monitored her con-dition. Defendants’ experts acknowledged that while the criticized medications are arguably not given to C. diff patients, this patient needed the medications for pain control and to prevent other life-threat-ening conditions. Defendants’ experts also contended that the patient’s septic shock and death was the result of ischemic coli-tis, and that a positive C. diff test on Aug. 20, was an ancillary finding.

After five days of evidence, the jury de-liberated for about two hours before re-turning a defense verdict in favor of all defendants.

[16-T-053]

Woman’s family claimed failure to diagnose infections

RAWLS LEWIS

FLAGE

Type of action: Medical malpractice/wrongful death

Injuries alleged: Wrongful death of a 70-year-old woman from C. diff colitis

Name of case:

Court: Pulaski County Circuit Court

Case no.: CL 13-943

Tried before: Jury

Name of judge: Hon. Bradley W. Finch


Special damages: $220,000 medical bills; $6,000 funeral expenses

Demand: $4,000,000 (Complaint); $925,000 (pretrial demand)

Offer: $0 from the physician

Verdict or settlement: Defense Verdict

Amount: $0

Attorneys for defendant: Brewster S. Rawls, Richmond, and Kristina L. Lewis, Fairfax; Charles Y. Sipe, Charlottesville, and Jessica M. Flage, Norfolk

Attorneys for plaintiff: Robert W. Carter Jr., Appomattox

Defendant’s experts: Dennis O’Neill, MD (internal medicine), John Schaeffer, MD (infectious disease), Daniel Neumann, MD (gastroenterology), John N. Hall, MD (orthopedic surgery), Michelle Sutton, RN Plaintiff’s experts: David Peura, MD (gastroenterology), Herbert DuPont, MD (infectious diseases), Christopher John, MD (orthopedic surgery), Susan Robinson, RN

Insurance carrier: Hudson Insurance Group (physician), self-insured (nursing home)

SIPE

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Balance bill | n continued from page 1

Martinsville in 2014 when other staffers noticed he was not feeling well. A co-worker drove him to an ur-gent care facility, but the staff there called an ambulance to take him to a hospital.

Dennis was having chest pains that recalled an earlier heart attack, and nitroglycerin did not seem to relieve his pain, according to a sum-mary by Henry County Circuit Judge David V. Williams. Dennis’ wife said he was “crying … upset … [and] agi-tated,” the judge wrote.

Dennis arrived at Memorial Hospi-tal of Martinsville & Henry County “in acute emotional and physical dis-tress,” Williams said.

While lying in a hospital bed awaiting treatment, a hospital staff-er had him sign a “Financial Re-sponsibility Agreement.” The agree-ment provided that the patient was obligated to promptly pay the hospi-tal in accordance with charges listed in the hospital’s “charge description master” or CDM.

Dennis was in the hospital two days and underwent surgery to place five stents in his arteries, his lawyers said.

At issue: $83kThe hospital said the bill came to

$111,115.37. Dennis had health in-surance, and he and his insurer paid the hospital $27,254.95.

But Dennis’ insurance carrier did not have a contract with the hospital for reduced reimbursement rates. He did not have Medicare or Medicaid. The hospital sued Dennis for the re-maining balance of $83,860.42.

Dennis asked a judge to declare he did not owe anything beyond what he already paid. The hospital responded with a counterclaim for the full amount, based on both con-tract principles and on an implied contract theory.

Williams tried the case without a jury on Feb. 25.

No mutual assentIn a March 31 letter opinion, Wil-

liams rejected the hospital’s contract and ruled that the reasonable val-ue of Dennis’ medical care was just $27,778.84. Dennis would owe the hospital only $523.89 in addition to the previous payments.

The opinion is Dennis v. PHC-Mar-tinsville Inc.

The hospital failed to meet its bur-den of proving that the parties mutu-ally had made a binding contract, the judge said.

In the first place, the Financial Re-sponsibility Agreement was a “con-tract of adhesion,” the judge decided.

“So far as Dennis knew, his life was on the line. His hope of receiv-ing medical treatment lay in signing the papers he was presented,” Wil-liams said.

He quoted U.S. Supreme Court Chief Justice John Roberts: “‘Your money or your life’ is a coercive prop-

osition, whether you have a single dollar in your pocket or $500.”

Williams found the hospital’s secrecy about its charges also sug-gested the contract was not a prod-uct of mutual agreement.

After Dennis was billed, the hos-pital refused to allow him to have a copy of the CDM or even look at a copy. In litigation, the hospital de-clined to provide a copy until the court ordered production, the judge said.

Although the hospital’s contract referred to charges in the CDM, “the hospital treated the contents of the CDM as ‘double secret,’ or confiden-tial or proprietary information,” Wil-liams said.

“No definition of the word ‘mutual’ encompasses a situation in which all of the information about a critical contractual element is held by one of the parties, who refuses to share it with the other party,” Williams said.

25 percent solutionEven if there were no enforceable

written contract, both sides agreed the hospital was entitled to com-pensation for the reasonable value of Dennis’ treatment. Dennis con-tended the amount already paid was sufficient.

Williams pointed to testimony from officials that the hospital would accept 25 percent of its charges as full payment if an uninsured patient arranged for pre-payment. The judge settled on that amount for Dennis’ obligation.

Martinsville lawyer James W. Haskins, who represented Dennis, said, as far as he knows, the decision is the first in the country where a “balance billing” challenge went to a full trial.

He said the evidence revealed the illusory nature of the nominal hospi-tal charges.

“One tenth of one percent actually pay a charge master rate,” Haskins said. The lawyer said his firm is pur-suing similar cases with several other hospitals in Virginia, contending the hospitals’ official rates are little more than bargaining chips.

“The charge masters are always secret. None of the hospitals will let patients look at the charge master,” said Scott C. Wall, another Dennis attorney.

“Welcome to the world of hospital billing practices. It is mind boggling what goes on,” Haskins added.

The Martinsville hospital, owned by Tennessee-based LifePoint Health, was represented by John S. Buford of Richmond. He did not re-spond to a request for comment on the trial and the hospital’s billing practice.

A spokesperson for the Virginia Hospital and Healthcare Association declined to comment on hospital bal-ance billing practices.

not being able to employ himself at the practice.

Bocek’s own conduct in hiring the consultant without full disclosure of his history with the target medical practice amounted to “unclean hands” which kept the court from allowing Bocek to recover assets through the remedy of a construc-tive trust.

Defense experts put the value of the practice at $620,000, based on the practice’s assets, as opposed to projected income.

In March, Bocek walked away with $156,000 in compensatory damages, plus costs and postjudgment interest.

Incomplete history Bocek had been fired from the practice

in 2010 and later sought to purchase it from the estate of the physician-owner.

Consultant Joseph Amato terminated his contract with Bocek after learning Bocek had been fired for sexual harass-ment and writing narcotics prescriptions for himself using another doctor’s pre-scription pad. The estate that owned the allergy practice already had petitioned a Pennsylvania court to approve sale of the practice, and Amato formed another busi-ness entity with an investor to finalize purchase of the medical practice.

After buying the practice, Amato said the company was worth “somewhere south” of $600,000. He changed his valu-ation of the practice after insurance com-pany audits of billing procedures caused gross revenues to drop “tremendously,” he explained to the court. A 2010 valuation report prepared by Hempstead & Compa-ny valued the practice at $620,000, based on its assets.

Bocek’s unclean hands precluded the remedy of a constructive trust, U.S. Dis-trict Judge James C. Cacheris said after the one-day bench trial.

Cacheris said the plaintiff doctor in-tentionally misled the defendants with

respect to “both the formation and the objective of their fiduciary relationship.”

Bocek told Amato that the high salary paid to Bocek, as the only board-certified allergist in the practice, prompted his termination. He neglected to mention the sexual harassment and prescription forg-ery complaints, as well as the fact that he was subject to no-trespass orders to keep him away from ACC.

The court credited Amato’s testimony that he would never have engaged Bocek as a client, had he known there was more to the doctor’s departure than his high salary. Bocek’s contentious history with ACC and character flaws would have affected financing options available for acquisition of the practice, according to Amato.

Bocek also “distorted” the reason for keeping his name out of the negotiations to purchase ACC, telling Amato it was because Bocek was still negotiating his severance package with the practice. This statement “was a deceivingly incomplete truth,” Cacheris said.

Despite the deception affecting an equi-table remedy, Bocek was entitled to com-pensatory damages, the court said. Bocek asked for $1.2 million in lost opportunity to buy ACC; $2.1 in lost income; $600,000 in mitigation expenses; $150,000 in pay-ments the purchasing entity distributed to Amato and an investor; $6,000 in funds Bocek paid to the consultant for its ser-vices; and $250,000 in emotional damages.

The court awarded Bocek $150,000 in lost income based on the sum the consul-tant and an investor paid themselves in 2011 as practice managers. Bocek also won an additional $6,000, the sum he paid for the consultant’s services.

Cacheris denied the doctor’s remaining claims for damages, including his request for attorney’s fees.

Bocek has filed an appeal, according to court records.

Recovery | n continued from page 1

provide the information to the prosecutor two weeks later.

Davis was denied bond and spent 16 days in jail. She alleged she suffered from medication withdrawal, which caused her to attempt suicide. The deputy allegedly misinformed the prosecutor that the dep-uty had intelligence suggesting Davis had been involved in other prescription fraud activity. The commonwealth’s attor-ney initiated prosecution, but the charges ultimately were dismissed.

Davis lost her security clearance and the government contracts she had been work-ing on, her suit claimed.

Hudson dismissed Davis’ claims against Greer and Wal-Mart, without prejudice. Hudson said “one may certainly question the wisdom or prudence of Greer’s deci-sions throughout this incident,” but “the allegations do not plausibly amount to neg-

ligence,” the court said. “The fact that the prescription was not in compliance with federal regulations, coupled with the PMP information, was enough to give Greer le-gitimate reason to question this prescrip-tion and be concerned,” the court concluded.

Greer had no duty under Virginia law to follow up on her earlier call to law en-forcement, the court said. Rather, it was reasonable for her to assume that law en-forcement would have been in touch with Dr. Ahmed as part of their investigation. And Virginia law provides a “safe harbor” for pharmacists and other providers in re-porting information to law enforcement.

Hudson said Davis’ civil rights claim against Harney would proceed on the merits.

Davis and the deputy have each filed motions for summary judgment, and trial is set for June 6, according to court records.

Prescription | n continued from page 3

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2016 may virginia medical law report

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