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MEDICAL L AW R EPORT

V I R G I N I A

LEGAL NEWS FOR THE MEDICAL COMMUNITY Volume 13, Number 6 JANUARY 2016

Page 3 | Negligence

Patient protection law supports negligenceclaim

Page 3 | Missed Diagnosis

Verdict is $2.75M in missed diagnosiscase in Abingdon

Page 5 | Stark Law

CMS finalizes changes and clarificationsto Stark Law regulations

BY PETER VIETH

A pastor who claimed negligentknee surgery forced the amputa-tion of her right leg won a $1.75million verdict against her doctor ina community known for conserva-tive juries.

The Dec. 15 verdict appeared to tiethe largest ever tort verdict in AugustaCounty.

The jury returned the award for74-year-old Mae Reeder, a once-activeminister who now is largely confined to awheelchair, according to her attorney.

The insurance company for the doctorand his practice group offered $500,000before trial, but pulled back the offer theday before trial, according to Reeder’s law-yer, R. Lee Livingston of Charlottesville.

Reeder’s last demand before court was$850,000, Livingston said.

The insurer’s decision-makers did notbelieve an Augusta County jury wouldfavor the plaintiff’s claim against a well-known local physician, Livingston said.

Nevertheless, Reeder prevailed and re-covered more than her initial demand.

A cut too farReeder underwent surgery in March

2013 for total knee replacement on bothlegs. She was diabetic and her past med-ical history included a stroke and cardiaccatheterization with stent placement.

After both operations were completed,orthopedist Kenneth A. Boatwright discov-ered that he had inadvertently lacerated

n

See

AUGUSTA

on PAGE 10

A record inAugusta Co.Med-mal verdict of $1.75Mreturned in conservative area

INSIDE

Why every healthcareprovider needs counsel

at a deposition

Page 4

n

See

NURSE

on PAGE 11

BY PETER VIETH

Parents lost their chance to suefor medical malpractice in thedeath of their 3-year-old sonwhen they used an expert opin-ion from a nurse to challengecare by two defendant neurol-ogists, a Norfolk Circuit Courtruled on Nov. 12.

Virginia’s medical malpractice stat-utes require a plaintiff to certify thatthe plaintiff has a written opinionfrom an expert addressing the stan-dard of care and alleged negligenceprior to serving a lawsuit on the de-fendants.

In the Norfolk case, the court saidthe plaintiffs could not have reason-

ably believed that the expert opinionthey obtained from a nurse addressedthe standard of care for the two defen-dant neurologists in the case.

Norfolk Circuit Judge David Lan-netti found the omission to be fatal in Susko v. Toor.

Dismissal of the case is not automaticunder the statute, Virginia Code § 8.01-50.1. But the Norfolk court’s citation ofa string of cases from around the com-monwealth dating from 2005 documentsample support for invoking the “deathpenalty” – dismissal with prejudice – fordeficient pre-service certifications.

Hospital infectionChristopher and Tammy Susko non-

suited their first wrongful death ac-tion in July 2012, filed after the deathof 3-year-old Christopher on Aug. 18,2010. They refiled the same claim

against neurologists Svinder S. Toor,

MD, and Larry Eugene White, MD,and their practice group in December2013 and served the complaint on thedefendants in December 2014.

When the defendants requested in-formation about the expert certificationrequired by Code § 8.01-50.1, the Suskosprovided a certification prepared byNurse Joahanna D. Evans Budge, datedDec. 5, 2014.

In their suit, the Suskos allegedChristian sustained a lumbar punc-ture and developed pneumonia and astaph infection during his treatmentin June and July 2010 at Children’sHospital of the King’s Daughters inNorfolk.

Nurses employed by CHKD failed toadequately turn or reposition Chris-tian, the parents alleged, which caused

Nurse expert opinion rejected in death case

BY PETER VIETH

Complications from gallbladdersurgery led to a $1.875 million juryverdict this month for a patient whowas left with permanent injuries.

The Fredericksburg jury rejected thepatient’s claim against her surgeon Jan.

6, but returned the verdict against thedoctor’s practice group where a nurse wasaccused of failing to act on reports of om-inous post-surgical problems.

The doctor, Bradford L. King, removeda gallstone in laparoscopic surgery Sept.13, 2012.

The patient, Christine Hommel,

claimed the doctor mistakenly removeda segment of her bile duct, which drainsbile from the liver to the intestines. Withbile draining directly into her abdominalcavity, she developed bile peritonitis andbecame very ill, said her lawyer, Benja-min W. Glass of Fairfax.

Hommel said she experienced twoweeks of severe pain and other symptomsafter the surgery, but could not get the

staff at the doctor’s office to realize thatshe was having abnormal complications.

Nine days after surgery, when she re-ported spitting up black bile, a nurse toldher to go to an emergency room, Hommelalleged. As with earlier calls, the nursedid not report this event to the doctor, ac-cording to the lawsuit.

Hommel went to an urgent care centerand eventually was referred to special-ists to repair the damage and addressthe “massive infection” from the buildupof bile. She had three major surgeries inthree years following the gallbladder op-eration.

“She can expect future surgeries, med-ical monitoring and a lifetime of medica-tion,” Glass said.

Glass said his client turned down a$600,000 offer before trial, but he de-clined to reveal more details about de-mands and offers.

The state-imposed recovery limit in thecase was $2.05 million, he said.

“The cap forces these cases to get triedbecause the cap means their exposure is

limited,” Glass said.He claimed he had a solid case.“I had an A-plus client with a really bad

injury and I had grade-A facts,” Glass said.The defendants were represented by

Robert F. Donnelly of Richmond.“It was one of those good news, bad

news things,” Donnelly said of the jury’ssplit decision. He noted the doctor wascleared of negligence.

“I was certainly gratified the jury ex-onerated my client with regard to thesurgery. I was disappointed they foundagainst the group,” he said.

Glass said the case produced a mini-mum of pretrial conflict.

“There was not the typical wranglingover every issue in the case,” Glass said.

F’burg jury returns $1.8M in gallbladder surgery case


2/12

Page 2 | © Virginia Lawyers Media, January 2016 Virginia Medical Law Report

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3/12

© Virginia Lawyers Media, January 2016 | Page 3Virginia Medical Law Report

BY PETER VIETH

An Abingdon federal jury awarded

$2.75 million to family members of apatient who died of a pulmonary em-bolism despite an emergency roomvisit nearly three weeks before.

The Dec. 7 verdict came after a four-day trial before U.S. District Judge JamesP. Jones.

The family’s recovery is limited to$2.05 million under Virginia’s medicalmalpractice cap.

The family members contended theemergency physician should have rec-ognized the dangerous blood clot andresulting lung condition when ShawnMcKee was treated at the Russell CountyMedical Center emergency departmentin 2013.

The case produced rulings from Joneson exposure for the staffing agency thatsupplied emergency doctors, the patient’sdisputed residency in another state, andthe patient’s alleged contributory negli-gence in delaying later treatment.

McKee – the patient – went to the Rus-sell County hospital on June 7, 2013, withchest and back pain, shortness of breath,nausea and fever, according to court doc-uments. Dr. Dwight L. Bailey performed anumber of tests and concluded that McK-ee suffered from acute bronchitis. Baileyreleased McKee that evening.

McKee moved with his family to Idahoon June 12.

On the night of June 24, McKee againhad shortness of breath. In a discussionwith his family, McKee’s mother-in-lawstrongly urged him to go to a hospitalright away. Instead, McKee waited untilthe morning.

An ambulance was summoned as McK-ee’s condition worsened in the morning.He died shortly after arrival at the hos-pital.

An autopsy showed pulmonary arterythromboembolism and bilateral pulmo-nary infarcts.

McKee’s family claimed Bailey shouldhave suspected a pulmonary embolismand pursued further testing.

Bailey was too heavy for a CT scan onthe hospital’s equipment, but he shouldhave been provided with anti-coagulantsand sent to Abingdon for a scan, the fam-ily contended.

The plaintiff’s case was summarized

by Benjamin D. Byrd of Roanoke, one ofthe legal team that represented McKee’sfamily. Also trying the case were Charles

H. Smith III and Andrew M. Bowman ofGentry Locke.

The parties disputed whether McKeementioned to the doctor that he was plan-ning to move from Virginia in just a fewdays. Long travel is a risk factor for bloodclots, Byrd said.

A family member recalled the con- versation, but the doctor said he had nomemory of a discussion about travel.

Agency liability Another issue for the jury was whether

the doctor’s staffing agency could be heldliable.

Bailey was placed at the hospitalthrough a contract with AppalachianEmergency Physicians which identifiedhim as an independent contractor. Jonessaid there were factors that cut bothways in determining whether the doctorshould be considered an employee or anindependent contractor.

Jones left that decision to the jury,which imposed liability on AEP alongwith the doctor. Jones’ opinion is Bagheriv. Bailey.

To help resolve the employment ques-tion, the jury heard evidence about thedoctor’s medical malpractice insurance.The insurance provided by the staffingagency was a factor in the question ofwhether the doctor was an employee ofthe staffing agency, Byrd said.

The parties collaborated with the judgeto craft a jury instruction on the issue ofemployment status, Byrd added.

Jones refused to allow a defense of con-

tributory negligence based on McKee’sdelay in going to the hospital in Idaho.The patient’s negligence was not contem-poraneous with the alleged medical neg-ligence, the judge ruled in Bagheri, Adm’rv. Bailey.

Early in the case, Jones weighed vari-ous factors to determine that McKee wasdomiciled in Idaho upon his arrival thereand, therefore, diversity jurisdiction ex-isted to keep the case in federal court. His jurisdiction decision is Bagheri v. Bailey.

The doctor and the staffing agency, Ap-palachian Emergency Physicians, wererepresented by James N.L. Humphreysand Jimmie C. Miller of Kingsport, Ten-nessee.

Humphreys declined comment beyondsaying that the defendants planned to file

post-trial motions.

Verdict is $2.75M in misseddiagnosis case in Abingdon

BY DEBORAH ELKINS

A Virginia “patient’s rights” statutecan support a negligence per seclaim against a hospital led after a

hospital attendant sexually assault-ed a psychiatric patient, a Lynch-burg Circuit Court has ruled.

The statute, Virginia Code § 37.2-400,is intended to protect patients receivingservices at hospitals funded or operatedby the Virginia Department of Behav-ioral Health & Developmental Services,according to Culpeper lawyer J. MichaelSharman, who represents the plaintiff in Parisi v. Cash.

John Paul Parisi was committed to Virginia Baptist Hospital in April 2012,and confined to a locked unit, accordingto his lawsuit. Upon admission to theunit, Parisi was given a “Notice of PatientRights” which he signed before a witness.That Notice asserted that each personadmitted to the psychiatric unit shall be“treated with dignity as a human being,”

“be free from abuse” and “be cared for in asafe environment.”

But Ronald Lee Cash Jr., the attendantwho witnessed Parisi’s signature on the

Patient’s Rights Notice, repeatedly sex-ually assaulted Parisi, the suit alleged.Cash later pleaded guilty to assaultingParisi and another patient, in separateproceedings, and has been sentenced toprison.

Parisi died two years after suit wasfiled, and his brother, as Parisi’s person-al representative, is pursuing the suit

against the hospital.“Too often plaintiffs get deterred bythe apparent strength of the hospital orprovider and don’t go back to the basic,old-fashioned tort principles,” Sharmansaid. “Negligence per se is a classic way”of using a statute to establish a duty ofcare, he said. If you show a violation ofthat statutory standard, then the onlyissue is whether the damages resultedfrom a breach of that duty.

Lynchburg Circuit Judge F. Patrick Yeatts rejected the hospital’s argumentthat the plaintiff had to sue under the Virginia Medical Malpractice Act, andalso allowed the plaintiff’s claim underthe Virginia Consumer Protection Act toadvance.

The hospital argued that any tort al-

legedly arising during a healthcare provider’s service to a patient fell withinthe medical malpractice statute, whichaffords providers certain privileges and

protections, including a cap on damages.But the Lynchburg judge said in his

Dec. 11 opinion that the “acts and omis-sions alleged in the plaintiff’s complaintare well removed from the provision ofhealth care or professional services.” Ye-atts distinguished Parisi’s case from oth-er cases involving sexual battery duringthe course of hands-on treatment, which

can be called malpractice.Turning to the VCPA claim, Yeatts said“the issue of whether or not the healthcare industry is totally exempt from the VCPA is a question that has not yet beendecided by the Virginia Supreme Court,”although some state and federal courts in Virginia have recognized such a claim.

The Lynchburg judge said it would bepremature to say the plaintiff in Parisi had no cause of action under the VCPA.

Patient’s rights Virginia courts have routinely sustained

demurrers to negligence per se claims inthe context of medical malpractice suits,the Lynchburg court acknowledged.

In Parisi however, the plaintiff hadpleaded the elements of a cause of action.He alleged Code § 37.2-400 was enacted

to protect hospital patients.The provisions within the statute could

be interpreted by their plain meaning asprotecting public safety. The hospital pa-

tient who alleged assault was a memberof the class of people for whose benefit thestatute was enacted, and he suffered thetype of injury the statute arguably wasdesigned to protect against.

“Proximate cause of the injury is afactual issue that cannot be appropriate-ly decided at the demurrer stage of thecase,” Yeatts wrote, overruling the de-

murrer.The patient’s rights statute had not been

applied for this purpose before, but therewas no reason why it shouldn’t be, Shar-man said. “It’s classic negligence per se.”

The consumer protection statute hasbeen cited against healthcare providers,but primarily with nursing homes, Shar-man said. “On its face, there’s no reasonwhy it shouldn’t apply here,” he said.

Lynchburg lawyer Kristine H. Smith,who represented the hospital, said shehad not previously encountered a claimfor negligence per se based on the pa-tient’s rights statute.

Although the Virginia Supreme Courthas not ruled on a case applying the VCPA in a healthcare setting, case law

in other jurisdictions has excluded “pro-fessional services” from similar consumerprotection statutes, according to Smith.

Discovery is underway in the case.

Patient protection law supports negligence claim

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Table of Contents:

3 Patient protection law supports negligenceclaim

3 Verdict is $2.75M in missed diagnosis case

4 Why every healthcare provider needs counselat deposition

5 CMS nalizes changes and clarications toStark Law regs.

5 Hospitals, senior communities benetting frommediation

Why every healthcare provider

needs counsel at a depositionBY TRACIE M. DORFMAN

Healthcare providers are well-awarethat they should contact their insurancecarrier if they are served with a lawsuit.But what about the seemingly innocent

request for a fact-witness deposition? Asa medical malpractice defense attorney,I am always surprised when I encounterhealthcare providers at a deposition whoare unrepresented by counsel. Especiallywhen many malpractice insurance poli-cies provide coverage for such situations.Doctors may think, “well, I’m not a defen-dant in the lawsuit, so why would I needan attorney?” or “I don’t want to raise anyred flags, it would be better to just go inby myself and get it over with.” Here arefour reasons every healthcare providershould consider having an attorney thenext time he or she gets asked to give adeposition as a fact witness.

1. Just because you aren’t a defen-dant yet, doesn’t mean you can’t besued later. In Virginia, the statute of

limitations for a medical malpractice law-suit is typically two years from the dateof injury or death (although there areseveral exceptions to this rule). If yourdeposition takes place before the statuteof limitations has expired, what you sayor don’t say in the deposition could deter-mine whether plaintiff decides to sue you.Unfortunately, I have seen more than oneunrepresented healthcare provider talkhim or herself into a lawsuit during adeposition.

Having a lawyer can protect you. Yourattorney will analyze your potential ex-posure and help you prepare for how tohandle targeted questions about yourcare and treatment. Proper preparationwith an attorney may minimize your ex-posure down the road.

2. Your attorney can help narrowthe issues. Sometimes your deposition

is needed for a verydiscrete reason. Forexample, if the medicalrecords include hand-written notes, the law-yers in the case may

just need you to deci-pher the records. Yourattorney can speakfreely with the attor-neys involved in thelawsuit to determinewhy your deposition is

needed. In some cases, your attorney caneven provide the information through al-ternative means so that your depositiondoes not have to go forward.

Your deposition may be requested be-cause the attorneys have a misunder-standing about your role in the patient’scare. I can recall several situations inwhich a healthcare provider was de-posed because the attorneys in the casewere misinformed about the healthcareprovider’s role. Before your deposition,

your attorney can communicate with theattorneys in the case to confirm what in-formation they believe you to possess. Ifthere are any misunderstandings, yourattorney can clear them up before yourdeposition. This could save you the timeand effort of having to appear and ex-plain the misunderstanding yourself.

3. You may be an expert in the fieldof medicine, but you probably aren’tan expert on the law. Do you knowwhether your office’s internal policies andprocedures should be produced in litiga-tion? Do you know what Va. Code § 8.01-399 says about whether you can speak tothe defendant’s attorney about the plain-tiff’s care? Do you know whether the par-ties can require you to travel to anothercounty to give your deposition testimony?

Unfortunately, a deposition request canraise various legal questions and you

want to be sure you are acting in yourown best interest and in accordance withthe law. The best way to protect yourselfis to have an attorney.

4. Your testimony under oath stayswith you forever. When you are de-

posed, you will be under oath. That tes-timony stays with you for your entire ca-reer. If you are sued later, your depositiontranscript may become relevant. Considerthis scenario: You testify as a fact witnessin a failure to diagnose vascular compro-mise case. During your deposition, youoffhandedly testify that when you have apatient with weak pedal pulses and bluetoes, you always order a Doppler. Yearslater, you find yourself a defendant ina lawsuit and the allegation is that youfailed to diagnose vascular compromise. Your patient had weak pedal pulses andblue toes, but you did not order a Doppler.If your prior testimony comes to light, itcould weaken your defense substantially.

Having an attorney properly prepare

you for your deposition may help youavoid giving testimony that can later hurtyou. Among other things, your attorneywould likely advise you to refrain fromspeaking in terms of “always” or “never.”These absolute statements can box you infor future cases.

In sum, having an attorney representyou in connection with a fact-witnessdeposition can help minimize your currentand future risk of exposure. Your attorneycan help to narrow the focus of your depo-sition, and may even be able to help youavoid having to give a deposition altogeth-er. The next time you receive a request togive a fact witness deposition, you shouldconsider being represented by counsel.

Tracie M. Dorfman practices healthcare

law with the Fairfax office of Hancock, Daniel, Johnson & Nagle.

DORFMAN


5/12


CMS finalizes changes and clarifications to Stark Law regulations

BY CARI CAMPBELL

DOLAN MEDIA NEWSWIRES

Mediation is a tool that is used to help

manage and resolve conflict and to arrive

at (hopefully) a win-win situation.

When people hear the word “mediation,”

many first think of its use in a family law

context: divorced or divorcing parentsworking with a third party to amicably

arrange a mutually beneficial schedule

for their children or agree on an equita-

ble distribution of the couple’s assets and

liabilities. And, when many people hear

the word “mediation” in that context, most

laugh at the process hoop they must jump

through before being heard by a judge; the

mediation process often proves ineffective.

Mediation can also be used, although less

commonly, in another context: for business.

Realistically, it can be used in any dispute

in which two people have a vested interest

in resolving a conflict and moving forward

to work together amicably in a win-win sit-

uation. After all, other than the preserva-

tion of court resources, isn’t that what they

had in mind in the family-law setting when

originally requiring this step?

In the business context, however, there is

often less raw emotional attachment within

the conflict (albeit, it is not completely void

of feeling); it’s generally not as personal as

the thought of losing rights to and time with

your child. Two industries that significantly

benefit from this mediation boom are hospi-

tals and senior communities. And there are

a few significant reasons that these indus-

tries are starting to take notice:

1. Human resource costs are im-

mense – especially in filling leadership

positions within a hospital or senior

community. The cost to replace a general

employee can easily reach 150 percent of

the employee’s annual compensation fig-

ure. The cost is significantly higher (200

to 300 percent of annual compensation)

for managerial and sales positions. There-

fore, the cost of turnover for a $50,000 po-

sition in an organization is approximately

$75,000. Some of the costs incurred forturnover include the ad placement to re-

fill the position; time spent résumé sifting

and interviewing; training; relocation; new

supplies (business cards, letterhead setup;

name tag); impact on departmental produc-

tivity; loss of knowledge, skills and contacts

of the person leaving; unemployment in-

surance; etc. The cost is high.

Nurturing good employees is a good in-

vestment for the organization. With an

investment of a couple thousand dollars, it

may be possible to retain the employee and,

thus, a positive ROI for the organization on

the process. If a $2,000 investment resolves

a dispute that retains a $50,000 employee

for an additional year, the organization jus-

tifies an 1,150 percent ROI for the organi-

zation by utilizing a mediation process.

If the organization did 12 mediations

throughout the year ($24,000) and only

managed to save two of those employees

(17 percent), the ROI of utilizing mediation

services would still obtain a 108 percent

ROI from utilizing mediation services.

It just makes sense.2. Board members – good ones –

are few and far between. It takes timefor an organization to diversify its boardwith solid board members who are vestedin the organization and its cause. Whena dispute arises with a board member,mediation could be a viable option for the

Hospitals, senior communities arebenefitting from use of mediation

n

See

STARK

on PAGE 12

n

See

MEDIATION

on PAGE 12

BY K ELSEY S. FARBOTKO AND

PATRICK C. DEVINE JR .

Since the passage of the Physician

Self-Referral Act, or “Stark Law,” provid-

ers have learned to satisfy certain excep-

tions in order to pursue financial opportu-

nities where Medicare-billed “designated

health services” are involved. It is note-

worthy when the Centers for Medicareand Medicaid Services, or CMS, alter the

established regulatory scheme, especially

when they provide increased flexibility

for providers. Most recently, CMS made

significant changes to the Stark Law reg-

ulations in its 2016 Physician Fee Sched-

ule Final Rule, published Oct. 30, 2015.

The Final Rule includes these significant

changes:

New exceptions

In the Final Rule, CMS created two

new exceptions. The first would allow

hospitals, Federally Qualified Health

Centers and Rural Health Centers to pay

physicians or physician groups for hiring

certain non-physician practitioners whoprovide primary care or mental health

services. The exception covers the recruit-

ment and employment of primary care

and mental health allied practitioners,

including physician assistants, nurse

practitioners, clinical nurse specialists,

certified nurse midwives, clinical social

workers and clinical psychologists. The

Final Rule capped the amount of com-

pensation that may be made available

and the length of time compensation may

be provided. Certain other requirements

similar to those in the physician recruit-

ment exception also apply.

The second new exception permits

timeshare arrangements among phy-

sicians, physician groups, or hospitals

where one party uses space, equipment,

personnel, supplies, etc. provided by an-

other party on a minimal or as-needed

schedule. However, if, for example, a par-

ty instead takes control of and exclusively

uses office space, the parties may create

a leasing arrangement requiring compli-

ance with the space lease exception.

The exception requires that all space,equipment, supplies, etc. be specified in

advance, used on the same schedule, and

be “predominantly” for the provision of

evaluation and management services.

Further, equipment cannot include ad-

vanced diagnostic imaging, radiation

therapy, or clinical laboratory equipment,

must be in the same building where ser-

vices are rendered, and must be “tangen-

tial” to the services furnished. Several

traditional Stark Law exception elements

also apply, including the requirement

that the arrangement be commercially

reasonable and that compensation not be

on certain “per-click” bases or take into

account the volume and value of referralsor other business.

Clarifcation and increased exibility

Writing Requirement. The Final Rule

specifies that, where an exception re-

quires that something be memorialized

in writing, there can be multiple written

documents, but any writings compiled to

meet the requirement must be signed.

“Takes into Account.” The Final Rule

states that CMS has always interpret-

ed the “volume and value of referrals”

standard the same across all exceptions,

regardless of the specific words used. In

the Final Rule, CMS makes the language

uniform, using the phrase, “takes into ac-

count,” across all exceptions.

Signature Requirements. The Final

Rule provides a 90-day grace period for

arrangements not in compliance with

signature requirements, regardless of

whether the failure was inadvertent or

intentional. This replaces the former 30-

day grace period for intentional failures

and 90 days for inadvertent failures.

Lease and Personal Services Exceptions.

With the Final Rule, the requirement that

arrangements last for one year or more is

met if the relationship will clearly last for

at least one year. Any arrangement that

in fact lasts one year or more will satisfy

the requirement, regardless of whether

the term is explicit. A provider must be

able to show, through contemporaneous

writings, that the arrangement existed

for a one-year (or more) period or that the

arrangement terminated within one year

and the parties did not enter into anoth-

er, similar arrangement within that same

one-year period.

Additionally, these exceptions have tra-

ditionally permitted “holdover arrange-

ments” for a maximum of six months. The

Final Rule now permits indefinite holdover

arrangements where (1) the arrangement

complied with the applicable exception at

its expiration; (2) the holdover arrange-

ment is on the same terms as the expired

agreement; and (3) the holdover arrange-

ment continues to meet the exception.

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6/12


Defense Verdict

Plaintiff, age 52 and mailman with theUS Postal Service for 26 years, fell on April 30, 2011, fracturing his collarbone(or clavicle). The defendant orthopedicsurgeon treated the plaintiff, who was atwo-pack-a-day cigarette smoker, conservatively with a sling for three months.Serial X-rays, however, revealed that thefracture was not healing.

On July 26, 2013, the defendant per-formed an open reduction internal fix-ation surgery on the plaintiff’s brokenclavicle. The surgery involved affixinga metal plate on the top of the claviclewith multiple screws. Plaintiff claimedthat as the defendant drilled throughthe clavicle, he negligently plungedthe drill too deeply beyond the clavicle,catching the subclavian vein and tear-ing a 4-5 cm hole in it. Plaintiff flat-linedon the operating table, but was resusci-

tat-ed. Because of additional hardwarethat painfully jabs into his breast-bone when he moves his arm, plaintiffclaimed that he cannot return to the job he loved as a mailman, or any other job. He is able, however, to hunt, fishand catch frogs in ponds at night witha flashlight.

Plaintiff’s experts testified that thedefendant was negligent by not pro-tecting the subclavian vein with dis-

section and a retractor before drilling.Defense experts, both of whom publishand teach on fixation of clavicle frac-tures, testified that the standard ofcare does not require dissection andretraction because doing so jeopardiz-es blood supply to the already com-

promised bone. Instead, the defendantreasonably relied on his sense of feel,sight and sound as he drilled. Afterthree-and-a-half days of evidence, the jury deliberated for two and half hoursbefore returning a defense verdict.

[15-T-155]

Type of action: Medical malpractice

Injuries alleged: Laceration of the subclavian veinduring clavicle surgery, leading to cardiac arrest,

asystole, momentary death, resuscitation, hospital-

ization and permanent disability

Court: Stafford County Circuit Court

Case no.: CL13000832

Tried before: Jury

Judge: Charles S. Sharp

Date resolved: Oct. 23, 2015

Special damages: Past medical bills – $89,000; past

lost wages – $208,000; future lost wages – $175,000Demand: $1,200,000

Offer: None

Verdict or settlement: Defense verdict

Attorneys for defendant: Byron Mitchell and

Coreen Silverman, Fredericksburg

Defendant’s experts: Michael McKee, M.D., ortho-

pedic surgeon, Toronto; Robert Goitz, M.D., hand and

upper extremity orthopedic surgeon, Pittsburgh

Complications arose during surgery on broken clavicle

MITCHELL SILVERMAN

Defense Verdict

The decedent, who suffered from atrialfibrillation was on Coumadin as a result,was admitted to a skilled nursing and re-habilitation facility in Fairfax following ahospitalization. Upon her arrival, the de-fendant physician performed an admittingevaluation on her, during which he noticed alarge hematoma and bruising covering sev-eral areas of her body. Based on this observa-tion, plus decedent’s age and unsteady gait,defendant prescribed a conservative dose ofCoumadin, as he was concerned about bleed-ing. Recognizing that the decedent neededCoumadin to reduce her risk of stroke, butalso recognizing her risk of bleeding, defen-

dant monitored the decedent and increasedthe dose conservatively two days later.

Plaintiff alleged that the defendantbreached the standard of care by failing toadequately increase her Coumadin dosage,failing to order a follow up INR test in atimely fashion and a failing to generally

monitor her. Plaintiff further alleged thatsaid failure resulted in decedent suffering a

stroke, and ultimately, her death. [15-T-165]

Type of action: Medical malpractice – wrongful

death

Name of case: Stirk v. Wilson

Court: Fairfax County Circuit Court

Case no.: CL14-13075

Tried before: Judge

Judge: Daniel E. Ortiz


Special damages: Medical expenses – $31,137.15

(none blackboarded at trial)

Demand: $800,000

Offer: None


Attorneys for defendant: Colleen M. Gentile and

Ian Lambeets, Richmond

Defendant’s experts: Dennis O’Neill, M.D.;

Thomas Butler, M.D.

Plaintiff’s experts: David Chesler, M.D.;

Guy Rordorf, M.D.

Insurance carrier: MEDICUS

Plaintiff: Conservative Coumadin dosage led to stroke, death

GENTILE LAMBEETS

Defense Verdict

The decedent presented to a localhospital for a screening mammogram onOct. 28, 2008. The defendant radiologistreviewed the current year’s mammogramand noted an area of asymmetry in theupper outer quadrant of the left breast.He compared the current year’s studyto the study done in 2007. The same

area of asymmetry appeared on theprevious year’s mammogram, althoughmore tissue in that area was capturedin 2008. The area of asymmetry did nothave any unusual or suspicious findings,such as lobulation, spiculation orcalcification. Nevertheless, the defendantproceeded to review all of the otherprior mammograms and noted that thisarea of asymmetry was present on priormammograms dating all the way back to1999. The defendant dictated his report,classifying the findings as benign andclassifying the study as BIRADS-2. Hisdictated report noted his comparison withthe mammogram in 2007; however, he didnot note his review of any mammogramsprior to 2007.

On Nov. 3, 2009, the decedent returnedfor another screening mammogram,which was read by a different radiologist.This radiologist noticed an area ofconcern in the central portion of theleft breast, and recommended furtherimaging, including true lateral and spotcompression films, which were done onNov. 12, 2009. Yet another radiologist readthese studies and noted no concerns withthe studies. He concluded the findingswere probably benign, but recommendedadditional imaging of the left breast insix months.

The decedent returned for anotherdiagnostic mammogram in June 2010.This mammogram was read by the headof the radiology group who noted thepresence of an asymmetry in the upper

outer quadrant of the left breast, and

reported that it appeared unchanged incomparison with prior studies, includingthe study of 2008. He reported thefindings were benign, and classified thestudy as BIRADS-2.

In the meantime, the decedent hadbegun experiencing pain and bruising inher left breast. She did not report thesesymptoms to the radiology technicianand these complaints were unknown tothe radiologist reading her mammogramin 2010. However, she opted to pursuefurther care in North Carolina. There, shereported focal pain in the breast, and adiagnostic mammogram with ultrasoundwas done in July 2010. The reviewingradiologist noted that the findings were

“highly suspicious for malignancy.”Pathology examination showed that shehad an aggressive tumor with mixedfeatures showing both invasive ductaland invasive lobular carcinoma and shewas classified as Stage IIIC.

Over the next few years, the decedentunderwent various treatments, includingradiation, hormone therapy and a doublemastectomy. Despite appropriate andaggressive care, her cancer metastasizedand the decedent ultimately passed awayin April 2014. The executor of her estateopted to continue with litigation as awrongful death claim.

Prior to trial, the parties filed severalmotions in limine. Over the plaintiff’sobjection, the court allowed the defendant

radiologist to introduce testimony from

the subsequent reading radiologists,but would not allow the defense expertsto opine that their interpretation of thedecedent’s mammograms as benignwas evidence that the defendant doctorhad complied with the standard of care.Further, the court allowed the defendantradiologist to testify to his habit ofreviewing available studies, althoughthat was not documented in his radiology

report. In doing so, the court rejected theplaintiff’s argument that this testimonywas barred by Virginia Code § 8.01-399. The court, however, did grant theplaintiff’s motion to limit the treatingradiologists to testifying to only to whatwas documented in their reports.

At trial, the plaintiff called Dr. MelindaDunn, a radiologist specializing in breastimaging, including mammography, ul-trasounds and MRI. She also called thedecedent’s treating oncologist from NorthCarolina. In addition, the plaintiff pre-sented testimony from several familymembers who gave testimony on the im-pact of the loss to the decedent’s brothers,her only statutory beneficiaries.

The defendant called six experts,including a mammographer, a generalradiologist, a breast surgeon, a medicaloncologist, a radiation oncologist anda pathologist. The radiology expert

testified that an area of asymmetry isnot, in and of itself, an uncommon orworrisome finding. She noted that thearea of asymmetry was stable, in that ithad been present for many years prior to2008. She further noted that subsequentradiologists had read the decedent’smammograms as benign, confirmingthe difficulty in detecting the decedent’scancer. The medical literature confirmedthis testimony, noting the difficulty indetecting invasive lobular cancers onmammogram. Using doubling times, thedefense experts opined that this cancerwas likely present for many years priorto the diagnosis, and had likely spreadbeyond the breast and lymph nodes priorto the decedent’s screening mammogramin 2008. Because the biology of the cancerdoes not change, earlier treatment wouldnot have been effective and the outcomewould have been the same even if thepatient had been diagnosed in 2008.

The all-male jury deliberated forapproximately an hour before returningwith a verdict in favor of the defendantradiologist. The plaintiff’s motion for a

new trial was subsequently denied. Theplaintiff has not appealed.

[15-T-185]


Injuries alleged: Wrongful death, failure to

diagnose breast cancer

Court: Halifax County Circuit Court

Tried before: Jury

Judge: David B. Carson

Date resolved: Aug. 20, 2015

Special damages: Primarily sorrow, mental

anguish and solace for loss of the decedent

Demand: $600,000

Offer: None


Attorneys for defendant: Tracy Taylor Hague and

Rodney Adams, Richmond

Attorneys for plaintiff: Robert Mann and James

McGarry, Martinsville

Insurance carrier: State Volunteer Mutual Insur-

ance Company

Experts: Decedent’s cancer likely pre-dated 2008 screening

HAGUE ADAMS


7/12


Visit the Virginia Medical Law Report website at vamedicallaw.com

Defense Verdict

The defendant general surgeon oper-ated on plaintiff, a 59-year-old male, onMay 27, 2010. Plaintiff presented withcholelithiasis and acute cholecystitis. Heunderwent an urgent laparoscopic chole-cystectomy that was converted to an openprocedure after his gallbladder ruptured,spilling a large amount of purulent bileinto the abdominal cavity. The purulentbile in the operative field was cleanedout by the general surgeon via copiousirrigation with warm saline. During thelaparoscopic procedure and prior to thegallbladder rupture, the defendant ob-tained a fluid culture of gallbladder fluid.Intraoperatively, a gram stain result wascalled to the operating room, indicatingthe presence of gram positive and gramnegative bacilli. The open portion of theprocedure was complicated and lengthy,lasting approximately four hours, duringwhich plaintiff was intermittently hypo-tensive despite aggressive hydration.

Post-operatively, plaintiff spent thefirst night in the ICU due to tachycardia,where he was continued on Unasyn (am-picillin), an intravenous antibiotic that

had been started by the surgeon uponplaintiff’s initial presentation to the hos-pital. Plaintiff’s white blood count, BUNand creatinine began to rise after surgery.On the evening of the first post-operativeday, plaintiff was moved from the ICU tothe floor. He was afebrile, but his BUNwas high at 22, his creatinine was high at1.57 and his white blood count was high,at 13.7. Plaintiff was ambulating, eatingand improving clinically. He was contin-ued on intravenous Unasyn.

On May 29, 2010, the second post-oper-ative day and the day of discharge, plain-tiff’s BUN was higher at 41, his creatininewas higher at 1.71 and his white blood

count was higher at 15,800. Clinically,plaintiff had little discomfort, was eatingand voiding well, was ambulatory and re-quested to go home. At discharge, plaintiffwas switched from intravenous Unasyn toan oral antibiotic equivalent, Augmentin,at 500 mg three times per day.

Moments, after the mid-day discharge,initial sensitivity results of the gallblad-der fluid culture became available inthe hospital chart. These indicated thepresence of Citrobacter Freundii, a bac-teria resistant to ampicillin, and thusresistant to the Augmentin prescribedfor plaintiff at discharge. Plaintiff leftthe hospital with a prescription for Aug-mentin, which was filled that afternoon.

In the early morning hours the next day,plaintiff became extremely ill with com-plaints of progressive abdominal painand weakness. He was taken to the hospi-tal by ambulance, where he was noted tobe severely hypotensive and tachycardic.Plaintiff’s condition severely worsenedand he required intubation. Plaintiffremained intubated for weeks and wastreated for severe sepsis. He was ulti-mately transferred to two other hospitals,where his recovery was difficult and slow.During the following months, he devel-oped a sacral decubitus ulcer.

At trial, plaintiff’s general surgery ex-pert testified that plaintiff’s condition—

most notably the rising BUN, creatinineand white blood counts—prior to the May29, 2010, discharge was consistent withan infection that should have been recog-nized. Plaintiff’s general surgery experttestified that it was negligent for thedefendant surgeon to discharge plaintiffwithout first confirming from culture andsensitivity results that oral Augmentincovered all bacteria present in the gall-bladder fluid that had contaminated theoperative field. Plaintiff’s surgery experttestified that plaintiff developed severesepsis due to a lack of response to theculture and sensitivity results. Plaintiff’streating plastic surgery expert testifiedconcerning the development of plaintiff’ssacral decubitus and the treatment heendured relative to that injury.

The defendant’s general surgery expertsand infectious disease expert testified thatthe standard of care allows a surgeon totreat a patient’s clinical picture and thata surgeon is not required to obtain culture

and sensitivity results prior to discharge,even when there is possible contaminationof the operative field. They opined that itwas appropriate to give broad-spectrumantibiotics and to discharge the patientwhen the clinical picture warranted. Theyopined that the patient’s rising BUN, cre-atinine and white blood counts in this casewere not unexpected given the intraopera-tive hypotension, as well as plaintiff’s his-tory of diabetes and kidney disease. Theselab results were not necessarily consis-tent with a blossoming septic infection.On causation, they testified there was noblood culture or other confirming evidencethat Citrobacter Freundii, which wasshown by sensitivity results as resistantto Augmentin, was actually responsiblefor the septic infection plaintiff developed.

After a four-day day trial, the jury de-liberated for approximately four hoursbefore returning a verdict in favor of thedefendants.

[15-T-157]


Injuries alleged: Severe septic shock

Court: Halifax County Circuit Court

Case no.: CL12000339-00

Tried before: Jury

Judge: David A. Melesco

Date resolved: Sept. 17, 2015

Special damages: $476,794 in medical expenses;

no past or future lost wages sought; no future

medical expenses sought

Demand: $1,000,000

Offer: None


Attorneys for defendant: Elizabeth GuilbertPerrow and Daniel T. Sarrell, Roanoke

Defendant’s experts: Kent W. Kercher, M.D.,

general surgeon, Charlotte, North Carolina; Donald M.

Poretz, M.D., infectious disease physician, Annandale;

Daniel G. Turgeon, M.D., general surgeon, Reston

Plaintiff’s experts: Joseph V. Boykin, J r., M.D.,

plastic surgeon, plaintiff’s treating wound care

physician, Richmond; Garry D. Ruben, M.D., general

surgeon, Silver Spring, Maryland

Insurance carrier: The Doctors Company

Bacterial infection worsened after discharge from hospital

PERROW SARRELL

The Verdicts & Settlements page 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.

Defense Verdict

The plaintiffs alleged that their son, whopresented to the emergency departmentafter taking an overdose of Dextrometho-rphan, received improper treatment. Thedefendants argued that the son deliber-ately, with the intent to commit suicide,withheld from providers in the ED infor-mation regarding his recent consumptionof Selegiline, an anti-depressant medica-tion, which reacted with the overdose of

Dextromethorphan and resulted in hisdeath. The defendants sought to presentevidence and jury instructions on illegalact, assumption of risk and contributory

negligence. The court allowed evidenceand jury instructions on contributorynegligence.

[15-T-173]


death

Name of case: Harris v. Lexington VA Emergency

Physicians LLP

Court: Roanoke Circuit Court

Case no.: CL12-205

Tried before: Jury

Judge: Charles N. Dorsey

Date resolved: March 13, 2015

Demand: $1,500,000


Attorneys for defendant: Joel McCray and Ruth

Griggs, Richmond

Defendant’s experts: Dr. Kenneth Larsen, emer-

gency medicine; Dr Melvin McInnis, psychiatry

Plaintiff’s experts: Dr. Edward Boyer, toxicology

and emergency medicine; Dr. Amy Tharp, medical

examiner

Insurance carrier: National Guardian

ER patient did not reveal combination

of drugs that led to overdose

McCRAY GRIGGS

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8/12


$1,000,000 Settlement

The decedent, age 62, was diagnosedwith prostate cancer and underwentan open radical retropubic prostatec-tomy. Although pre-operative imagingindicated no extra-prostatic extensionof the cancer, the defendant conductedan extensive 30-lymph node dissectionwith an estimated blood loss of 2500 ml

that necessitated several transfusions. All lymph nodes, including the one test-ed intraoperatively, were negative forcancer. During the course of the proce-dure, the defendant caused an iatrogen-ic injury to the rectum.

Following surgery, the decedent wasfebrile with an elevated white bloodcount. On post-operative day four, thedecedent presented to the defendantphysician for a follow up appointment.His white blood count was increasing-ly elevated. The decedent’s laboratory values were abnormal with low sodi-um, low potassium, low carbon dioxide,elevated glucose and anemia. He com-plained of severe fatigue and anxiety.The decedent had an unusual amountof drainage from a surgically placedJackson Pratt drain. The physician per-formed a rectal examination and notedconcern for a rectal injury, but did noth-ing to rule it out.

Later that day, the decedent devel-oped bloody stools, which were reporteddirectly to the defendant by telephone.

Several calls reporting signs and symp-toms consistent with a rectal injurywere placed over the next two weekenddays. A week following the surgery, thedecedent was readmitted for evalua-tion. He exhibited shortness of breathwith severe hiccups, bilateral leg swell-ing and a sub-therapeutic INR. An ab-dominal CT confirmed the large rectalbreach between the anterior rectumand the proximal ureter. It also showedmultiple foci of air and likely fecal ma-terial in the retroperitoneum extendinginto the extraperitoneal space, with airtracking down the abdominal wall alongthe inferior vena cava, hepatic vesselsand biliary tree. Bacteria cultured fromthe drain indicated that the decedentwas infected with pseudomonas aerugi-nosa and clostridium difficile. The dece-dent underwent an extensive sigmoidloop ostomy and flex sigmoid colostomyto repair the rectal injury.

Following the repair surgery, the de-

fendant continued to manage the dece-dent’s care while hospitalized. Fivedays after the second surgery, the dece-dent had a follow-up CT scan of the ab-domen and pelvis, which demonstratedan unchanged retroperitoneal abscessat the right aspect of the pelvis and anincreased fluid collection at the left as-pect of the pelvis. The scan also revealedprominent bilateral basal atelectasis.

The decedent’s oxygen saturation rateswere declining without explanation.Despite his status, the decedent wasdischarged the following day. Two-and-a-half hours later, he collapsed at homeand was emergently transported backto the hospital. A d-dimer blood testindicated a measurement of 9747 ng/ ml. Interventional radiology performeda pulmonary arteriogram that showedthrombus in right pulmonary artery.Catheter directed thrombolysis via tPAwas attempted. Despite these efforts,circulatory collapse from saddlebackpulmonary emboli resulted in death.

Plaintiff’s experts were designated

to opine that the defendant’s breach-es of the standard of care included:performing an unindicated bilaterallymphadenectomy, failing to inspect therectum and repair the breach intraoper-atively, failing to timely respond to thesigns of a rectal defect and associatedinfections, ignoring the decedent’s con-dition and imaging results following hisrepair surgery, failing to obtain appro-priate consults, failing to order appro-priate prophylaxis for venous thrombo-embolism, failing to monitor and treatundrained abscesses which heightenedthe risk of developing pelvic clots anddischarging the decedent in an unsafecondition.

Decedent was retired. The beneficia-ries of the estate included his widowand his two adult, non-dependent chil-dren. Plaintiff designated an economistto opine regarding the decedent’s loss ofhousehold services. The case was suc-cessfully mediated.

[15-T-162]


death

Resolved by: Mediation

Mediator: Diane M. Strickland

Date resolved: Sept. 16, 2015

Special damages: $644,643

Verdict or settlement: Settlement

Amount: $1,000,000

Attorneys: Lewis T. Stoneburner and Bellamy

Stoneburner, Richmond

Prostate cancer patient died due to pulmonary emboli

L. STONEBURNER B. STONEBURNER


Plaintiff alleged that defendants failedto timely diagnose a blood clot spinalepidural hematoma (SEH) that formedin the lower spine of their 14-year-olddaughter following scoliosis surgery on

Aug. 19, 2011. They further allegedthat they were never informed of therisks of using a spinal epidural for themanagement of postoperative pain, or theless risky alternative of IV pain manage-ment. Finally, plaintiffs alleged that largeamounts of anesthetic agents and/or fluidwere given through the epidural catheter,which added to the compression of thespinal nerves caused by the hematoma. As a result of the defendants’ alleged neg-ligence, the minor plaintiff suffered per-manent bowel and bladder dysfunction aswell as saddle area numbness.

For 17 hours following the surgery, the

minor plaintiff had normal movementin all her extremities. Thereafter, begin-ning at 9:00 a.m., on Aug. 20 2011, the

plaintiff developed severe neurologicaldeficits in her lower extremities, at whichtime the epidural was pulled. Defendantsbelieved the plaintiff was experiencinga prolonged effect of epidural analgesia,which would subside, since her deficitsimproved after the epidural was pulled. At 6:00 p.m., when the plaintiff failed toregain full motor function, a spinal CTwas ordered, which came back “non-diag-

nostic” at 7:00 p.m. An MRI of the spinealso came back “non-diagnostic” at 9:00p.m. No further imaging studies were

ordered. Surgery to remove the SEH anddecompress the spinal nerves was neverperformed.

According to plaintiffs’ experts, when

the plaintiff did not regain full neurolog-ical function within two hours after theepidural was pulled, the defendants couldno longer reasonably believe the plaintiffwas experiencing a prolonged epidural ef-fect. At 11:00 a.m., defendants had a dutyto order a CT of the spine to rule out a he-matoma. Once the CT came back non-di-agnostic, defendants should have ordereda myelogram. Had this been done, thehematoma would have been diagnosed intime to remove it surgically without per-

manent injury. This likely would have ledto a full recovery.

According to defense experts, it wasreasonable to wait up to 12 hours after

the epidural was pulled for the child toregain full neurological function. The im-aging studies were not non-diagnostic,since a normal spine was visible betweenthe non-diagnostic areas, sufficient torule out a SEH. Decompression surgerywas not required, since there never was aSEH. They claimed the plaintiff suffereda unique reaction to the epidural medica-tion, which could not have been foreseenor prevented.

[15-T-166]


Injuries alleged: Failure to diagnose/treat spinal

epidural hematoma following scoliosis surgery

Mediator: John Morrison

Verdict or settlement: Settlement

Amount: $1,040,000

Attorneys for plaintiff: William E. Artz and

Andrew J. Waghorn, Arlington; Robert Moreland,Norfolk

Plaintiffs: Teen developed spinal epidural hematoma after surgery

ARTZ WAGHORN

$500,000 Verdict

In July 2008, the 28-year-old plaintiffdeveloped a lump on the left side of herneck, just underneath the ear. The lumpwas removed by an ENT physician inManassas who sent the tissue sampleto Lab Corp. A pathologist at Lab Corpcould not rule out a cancerous lesion,so she sent the sample to the ArmedForces Institute of Pathology for expertreview. A pathologist at AFIP diagnoseda benign tumor.

In April 2009, the lump returned inthe exact location where it initiallydeveloped. Plaintiff returned to herENT physician, who removed the tumora second time and sent the tissuesample to Prince William Hospital. A pathologist at PWH diagnosed abenign tumor. In August 2009, the lumpreturned in the exact location where itbad been removed twice previously. AnMRI revealed that the tumor had grownfrom 2 centimeters to 6 centimeters,with extensive involvement of the left

trapezius muscle and possibly two

lymph nodes, which were enlarged onimaging.

In October 2009, surgery was performedat Georgetown University Medical Centerto remove the neck tumor and 14 nearbylymph nodes. Since the tumor had invadedthe trapezius muscle, reconstructive flapsurgery was also required. A pathologistat Georgetown diagnosed a malignanttumor. All lymph nodes were negativefor cancer. Nevertheless, since the necktumor recurred twice, plaintiff underwenttwo months of radiation therapy. As lateas August 2014, periodic imaging studies

of the head and neck failed to detect any

hint of cancer recurrence,This was a difficult case. Plaintiff’s

experts were prepared to testify thatthe signs of malignancy were obviousfrom the start. However, they disagreedas to the type of malignancy – sarcoma v. desmoplastic melanoma. Medicalliterature and an online prognostic

database indicated that the five-yearsurvival rates for both DM and sarcomawere good. Plaintiff’s treating radiationoncologist testified at deposition that shewas cured. The claim of cure was repeatedby defense oncology experts. Settlementnegotiations were further hamperedby arguments that other pathologists,

besides the AFIP pathologist, diagnosed abenign tumor.

The plaintiff posited the theory thatas a result of the 15-month delay indiagnosis and treatment, the tumorbecame larger and more aggressive,requiring more extensive treatment,including more invasive surgery, a lymphnode dissection, reconstruction using askin flap and radiation treatments.

During the pendency of this litigation,plaintiff gave birth to her second child,even though her pregnancy placed her athigher risk for a cancer recurrence.

[15-T-163]

Type of action: Medical malpractice – Federal Tort

Claims Act

Injuries alleged: Failure to timely diagnose head

and neck cancer

Court: U.S. District Court for the District of Columbia

Judge: Ellen Huvelle

Date resolved: June 29, 2015

Verdict or settlement: Verdict

Amount: $500,000

Attorneys for plaintiff: William E. Artz and

Andrew J. Waghorn, Arlington

Tumor reappeared twice before being diagnosed as malignant

ARTZ WAGHORN


9/12


Defense Verdict

Defendant diagnosed plaintiff withmetatarsalgia, or pain in the ball of herfoot. Defendant eventually determinedthat this excessive pain and pressureon the ball of the plaintiff’s left foot wascaused by both positional and structuraldeformities. The positional problem wasthat plaintiff had “equinus deformity”or a short Achilles tendon, which causedher left foot to be dorsiflexed, i.e. her toespointed downwards. The structural prob-lem was that the plaintiff had “anteriorcavus” or a high arch. The pressure on theball of the plaintiff’s foot was worst underher first, fourth and fifth toes, as evidencedby callouses on the bottom of her foot.

Nine months of conservative therapywas unsuccessful in relieving the signifi-cant pain and pressure in the ball of theplaintiff’s left foot. Thus, the defendantperformed a number of procedures in asingle surgical setting, all of which weredesigned to alleviate the metatarsalgia.Defendant lengthened the plaintiff’s Achilles tendon. Defendant performed os-teotomies on plaintiff’s first, fourth andfifth metatarsals. Intraoperatively, defen-

dant determined that these procedureshad been unsuccessful in fully alleviatingthe pressure on the ball of the plaintiff’sfoot. Thus, the defendant also removedthe sesamoids, two bones embedded in thetendons underneath the plaintiff’s big toe.

Plaintiff developed a “cock-up hallux” orraised big toe. This was a known compli-cation of removing the sesamoids. Defen-dant performed another surgery about fourmonths after the original surgery to addressthe raised big toe. Plaintiff had two instanc-es of infection during her treatment withthe defendant. On one occasion, she hadrubbed a blister on the back of her heel. Af-ter applying a wet dressing and putting the

plaintiff on a short course of oral antibiot-ics, the blister resolved. On another occa-sion, the defendant recognized an area of fi-brosis and bogginess on the plaintiff’s heel.The defendant debrided the area and founda piece of suture from the original surgerythat had broken off. The body had been at-tempting to spit this piece of suture out asit would a splinter.

The plaintiff also had an emergency roomadmission during her treatment with thedefendant. Plaintiff presented to the emer-gency room with a fever, accelerated heartrate and headache. The emergency roomdoctors determined that the plaintiff waslikely having a reaction to one of the oralantibiotics the defendant had placed her on

for the superficial infections. After the anti-biotic was changed, the plaintiff’s symptomsresolved. Though the first surgery had beensuccessful in alleviating the plaintiff’s pri-mary complaint of pain in the ball of her foot,the plaintiff’s left foot issues were complex.The defendant continued to see and treatthe plaintiff for assorted issues with her leftfoot. However, about eight months after theoriginal surgery the plaintiff decided to dis-continue treatment with the defendant.

About five months after that, plain-tiff went to see another orthopedist for asecond opinion. That orthopedist, who ob-served no signs or symptoms of infectionin the plaintiff’s left foot, referred plain-

tiff to Dr. Joseph Soo Park, an orthopedicfoot and ankle surgeon at the Universityof Virginia. About six months later, now11 months after the plaintiff had last seenthe defendant, the plaintiff first sent to seeDr. Park. Dr. Park eventually determinedthat the plaintiff had osteomyelitis, or abone infection, in her left heel. Dr. Park re-moved a portion of the plaintiff’s Achillestendon, debrided the bone and placed anti-biotics beads in the plaintiff’s heel.

Plaintiff’s experts alleged that most ofthe surgeries performed by the defendant,especially the sesamoidectomy, were un-necessary. Plaintiff’s experts alleged thatthe sesamoidectomy was not indicatedand caused the plaintiff further harm. Theplaintiff’s experts further alleged that theosteomyelitis diagnosed and treated byDr. Park was a result of the defendant’sinappropriate diagnoses and treatment ofplaintiff’s infection at the time of his care.

The plaintiff requested reimbursementof approximately $250,000 in past medicalbills. Plaintiff presented a life care plan to-taling $398,624. The parties had attempt-

ed mediation, which ended with plaintiffat $1,825,000 and defendants at $200,000.Plaintiff later stated that her bottom linenumber was $1,100,000.

The defendant’s experts testified that allof the surgeries performed by the defendantwere indicated and adequately performed.The defendant’s experts testified that thedefendant’s response to and treatment ofthe limited signs and symptoms of superfi-cial infection that appeared was appropri-

ate. Defendant’s experts disputed whetherplaintiff actually had an osteomyelitis at thetime of Dr. Park’s treatment. Defendant’s ex-perts pointed to the fact that the pathologyreport revealed “no evidence of acute inflam-mation.” The defendant’s experts testifiedthat for there to be an infection there mustbe inflammation. The defendant’s expertstestified that what plaintiff likely had wasa bad reaction to the suture material, a notuncommon condition.

After four days of testimony, and fourhours of deliberation, the jury returned aunanimous verdict in favor of the defendant.

[15-T-160]


Injuries alleged: Unnecessary surgeries and inappro-priate response to post-operative infection, leading to

increased pain and loss of function in plaintiff’s left foot

Court: Rockingham County Circuit Court

Case No: CL12-02247

Tried before: Jury

Judge: Thomas J. Wilson IV

Date resolved: July 30, 2015

Demand: $1,825,000 (letter stated bottom line of

$1,100,000)

Offer: $200,000

Verdict: Defense verdict

Attorneys for defendant: C.J. Steuart Thomas III

and Tate C. Love, Staunton

Defendant’s experts: Laurence G. Rubin, DPM;

Charles M. Zelen, DPM; Gary Leonard Simon, M.D.

Plaintiff’s experts: John R. Senatore, DPM; Jamie

Alexandra Dale, M.D.; John C. Schaefer, M.D.; Joseph

Soo Park, M.D.

Insurance carrier: The Doctor’s Company

Plaintiff said foot surgery was unnecessary, led to complications

THOMAS LOVE

Defense Verdict

Plaintiff, an Atlanta resident, has agenetic condition called AmeliogenesisImperfecta, which is a malformation ofher tooth enamel. She also had brux-ism (teeth grinding). Because of her AIand teeth grinding, she needed to havea full mouth restoration performed fordental, medical and aesthetic reasons.She could not afford the procedure andplanned to travel to Bangkok to haveit completed. Her sister, a Richmondresident, was a patient of the defen-dant dentist and told him of her sis-ter’s plans. He offered to do the proce-

dure for whatever she could afford soshe would not have to travel out of thecountry for the procedure.

After the procedure was completed,the plaintiff began to complain of den-tal sensitivity and jaw pain. She re-fused to return to Richmond to allowthe dentist to examine her or make ad-ditional occlusal adjustments, insteadpresenting to an Atlanta dentist whorecommended that he re-do the proce-dure. She had him perform another fullmouth restoration only months afterthe first one was completed, for a costof $70,000. After re-doing the plain-tiff’s full mouth restoration, plaintiff’s Atlanta dentist treated her for threeyears before she stopped complainingof sensitivity and jaw pain with hersecond set of crowns. Plaintiff allegedthe expense and long timeframe for thesubsequent procedure resulted fromthe defendant’s negligence. She allegeddefendant had breached the standardof care, causing her malocclusion, painand additional dental work.

Defendant presented expert testi-mony that he had complied with thestandard of care in completing the fullmouth restoration. Sensitivity aftera full mouth restoration is common,and it takes time to adjust to the newcrowns. Moreover, plaintiff’s AI madeher hypersensitive and caused her totake longer to adjust. Additionally, her jaw pain was muscular and caused byher pre-existing bruxism and anxiety,

not malocclusion. After four days, the

jury deliberated for an hour and a half

before returning a defense verdict.

[15-T-170]

Type of action: Dental malpractice

Injuries alleged: Plaintiff alleged she had to have

a full mouth restoration re-done because malocclu-

sion caused jaw pain and sensitivity

Court: Richmond Circuit Court

Tried before: Jury


Special damages: $89,004

Demand: $800,000

Offer: None


Attorneys for defendant: Jodi B. Simopoulos and

Garrett H. Hooe, Glen Allen

Defendant’s experts: J. Timothy Wright, D.D.S.

and Christopher Hooper, D.D.S.

Plaintiff’s experts: Gregg Helvey, D.D.S.

Insurance carrier: Medical Protective

Patient had full mouth restoration re-done due to jaw pain

SIMOPOULOS HOOE


10/12



The 53-year-old plaintiff had suffered anodontoid fracture in 2001, which required aspinal fusion from C1 to C5. He had recov-ered well, and was employed as a supervisorfor 30 years. When he developed some dif-ficulty walking with secondary bilateral legweakness, he was admitted into the hospitalby his neurosurgeon for a re-do occiput to C5

instrumentation and fusion. The anesthesiapre-procedure consult noted specific con-cerns for anesthesia including severely lim-ited neck motion due to cervical traction inneutral position and a limited mouth open-ing. A subsequent pre-procedure consultnote indicated a more normal assessment.Given the plaintiff’s presentation to the hos-pital, his symptoms, the requirement of cervical traction to ameliorate those symptomsand his past surgical history, plaintiff’s ex-perts were of the opinion that the first eval-uation was more accurate and the plaintiffneeded a fiberoptic intubation. Prior to thecommencement of the surgery, the anes-thesia providers provided some sedationwhile the monitor and oxygen were applied. A transtracheal block was performed. Twominutes later, the plaintiff was induced with

Lidocaine and Propofol. The combination ofthese drugs can cause a patient to becomeapneic, which normally can be cared for.The records noted that the plaintiff’s mask ventilation was difficult and that he had aperiod of apnea following ventilation with-in minutes. Two oral attempts were thenmade with a fiberoptic bronchoscope, butwere unsuccessful. It was noted that the

plaintiff remained spontaneously breathing,but required pressure support via mask be-tween attempts.

Despite these noted difficulties, it wasnext decided to administer Rocuronium toassist with the ventilation/intubation. Ro-curonium is an intermediate-acting musclerelaxant, which is not reversible for at least20 to 30 minutes. Essentially, the plaintiffwas paralyzed at this point and could nolonger breathe for himself. The anesthesiaproviders no longer had the option of beingimmediately able to awaken their patient. Athird attempt at fiberoptic intubation was

unsuccessful. The plaintiff became dif-ficult and then impossible to mask-ven-tilate with two providers and an oral

airway. The next maneuver attemptedwas a direct laryngoscopy, but failed. An attempt at supraglottic airway wasmade, but failed as well. The plaintiff wasnow bradycardic while still maintaininga blood pressure. An angiocatheter wasplaced through the neck into his tracheaand oxygen was insufflated through thecatheter. This helped for a short period of

time, but became clotted and no furtheroxygenation was possible. At this time,the anesthesia providers decided to placea tracheostomy. An incision was made inthe plaintiff’s neck and dissected downto the trachea. Unfortunately, multipleattempts made to place the tracheosto-my were unsuccessful. An ENT physi-cian then entered the operating room tofurther assist. The plaintiff became morebradycardic and eventually, no palpablepulses were felt. CPR commenced andhe received approximately four minutesof chest compressions. The plaintiff wasfinally intubated via direct laryngoscopywhile the ENT was working on the tra-cheotomy. Immediately after the patientwas successfully intubated, his oxygensaturations returned to more normal lev-els. Shortly thereafter, the providers wereable to re-establish a cardiac rhythmand blood pressure. The neurosurgeondeemed that his patient was grossly un-stable from a pulmonary and cardiovas-cular standpoint the planned neurosurgi-cal procedure was aborted.

Despite various medical interventions

that followed, the plaintiff remained neu-rologically devastated and did not haveany spontaneous movement or response topainful stimuli. An EEG was performed andnoted a pattern typically seen following an-oxic injury after cardiac arrest, suggestive ofa poor prognosis. Plaintiff’s brain imagingwas indicative of a global hypoxic-ischemicinjury. He was taken for a tracheostomyand PEG tube placement. Plaintiff’s expertswere of the opinion that the induction ofanesthesia and intubation sequence did notmeet the standard of care directly resultingin the plaintiff’s permanent injuries.

After more than a month in the hospital,the plaintiff was discharged to a long-termcare facility where he remains today. Al-though he has been weaned from the ven-tilator, the plaintiff remains unable to carefor himself independently, unable to walkand unable to communicate verbally. He iscurrently being cared for by his parents andfive siblings, who all live locally. At the timeof settlement, less than two years after thedate of injury, the plaintiff’s incurred medi-cal bills totaled almost $1 million.

[15-T-197]


Injuries alleged: Permanent anoxic brain injury

requiring a lifetime of care

Date resolved: November 2015

Special damages: More than $1,000,000

Verdict or Settlement: Settlement (pre-suit)

Amount: $1,950,000

Attorneys for plaintiff: Stephanie E. Grana, Irvin

V. Cantor and Elliott Buckner, Richmond; Jeffrey A.

Breit, Virginia Beach

Anesthesia and intubation sequence led to permanent brain injury

CANTOR BUCKNER

the popliteal artery on the first knee. A vas-cular surgeon tried to repair the injury, but

the attempt failed, Livingston reported.The leg was amputated above the knee

four days after the operation.Testimony suggested Boatwright had

cut the artery while using a saw to cutthrough bone.

Despite having a prosthetic leg, Reederwas largely immobilized after the sur-gery. With an above-the-knee amputationon her right leg, she could not properly re-habilitate the replacement left knee and“it froze on her,” Livingston said.

After becoming disabled, Reeder occa-sionally had to call for help from a neigh-bor when she fell or had difficulty withpersonal care, Livingston said.

Her medical bills were $360,731.97and the cost of her lifetime care rangedbetween $534,149.60 and $688,549.40,according to Livingston.

Conservative jurisdiction Augusta County is not known for gen-

erous juries.Pretrial research of the juror list

showed a large number of Facebook sup-porters of Donald Trump. Almost every-one who expressed a political opinion wason the conservative side.

A wrongful death plaintiff scored a$1.75 million jury verdict in 2006, but thedefendant in that case was convicted oftrying to kill the plaintiff in a frantic carchase.

A brain injury from a wreck involving adrunken driver led to a $1.5 million ver-dict in 2007.

A $250,000 auto liability judgment was

hailed as a possible record personal inju-ry verdict in 1996, according to a reportin Virginia Lawyers Weekly.

Livingston said he was told that no Au-gusta County jury had been known to re-turn a medical malpractice verdict closeto Reeder’s award.

When potential jurors were questionedin front of the judge, many expressed res-ervations about hearing Reeder’s medicalmalpractice case.

“I have a strong opinion against medi-cal lawsuits,” said one member of the ve-nire. “I believe before you do anything asfar as getting an operation, if you’ve doneyour homework and made a decision onthe doctor, you can live with the conse-quences,” the juror said.

“I don’t like lawsuits,” another

conceded.

“I don’t really believe in lawsuits, reli-gious reasons,” said another.

Change in themeThe court had summoned 60 potential

jurors. After the judge had struck 17 forcause, Reeder’s lawyers learned about an-other cause for concern.

The local daily had published an arti-cle on the trial that hit the streets on themorning of voir dire. “Amputee sues localdoctor for $3 million,” the headline read.

The article included statistics from areport called the “Surgeon Scorecard”that purportedly showed the defendantdoctor had a low complication rate for to-tal knee replacement surgery.

At least one or two of the venire whohad read the article ended up sitting onthe jury, Livingston said.

The plaintiff’s team adjusted its tac-tics, Livingston said. The theme of Reed-er’s case became, “Even a great surgeoncan have a careless moment.”

Livingston concluded cross-examinationof the principal defense expert with thisquestion: “Would you agree that even greatsurgeons … can have a careless moment?”

“Well, certainly,” was the expert’s reply.The newspaper story forced another

tactical adjustment. Since the $3 milliondemand was splashed across the frontpage, Livingston decided to ask the juryfor that same amount at closing.

“It could hurt us if we asked for less,”he said in a later interview.

Worrisome jury questions After four days of evidence, the jury

had been out for four hours when theysent what Livingston called “alarming

questions” to the judge. Among other requests, the jury soughtthe dictionary definition of “negligence.”

Nervous about the jury questions,Reeder’s lawyers cut their demand to$750,000, but the insurance carrier didnot respond.

“One lesson from the case is, ‘Do notget too worried if you get an off-the-wallquestion,’” Livingston said.

Livingston publicly thanked his lawpartners for helping him resist the pre-trial offer of $500,000.

“A half million dollars on the table ina conservative jurisdiction with no recordof a medical malpractice win. One jurorcould hold up a verdict. It’s easy to acceptthose offers that would leave you fullypaid for your time,” Livingston said. “But

I just could not do that for Mae Reeder.

She would not have walked away with afull recovery at the end of the day.”

Virginia’s medical malpractice law puta $2.05 million cap on Reeder’s potentialrecovery in the case.

Besides Livingston, Reeder’s lawyersincluded Yvonne T. Griffin and Lisa Brookof Charlottesville.

The defendants were represented byPowell M. Leitch III of Roanoke. He de-clined to comment.

Jury research on the quickTesting the waters for trying a case in

Augusta County required some fast foot-work for Reeder’s lawyers, Griffin said.

Just five weeks before trial, the group

decided to assemble a test group of Au-gusta residents for a research session.The budget was limited, so the effort be-came a do-it-yourself project, Griffin said.

The key problem was finding willingparticipants. The judge refused to allowaccess to the court’s previous juror list.

Hoping to put together a group of 21residents, the legal team mailed 200 in- vitations for paid participants to random Augusta phone customers. Only six re-sponded.

Time was short. The legal team went to“freak out mode,” Griffin said.

Rather than hire a professional re-search firm, and with time growing short,Griffin took to the road, driving to grocerystores, department stores and gas sta-tions – anywhere she could pitch the idea

of earning $150 to be on a make-believe

jury for three hours.“That worked out great – the face-to-

face did,” Griffin said.She said she deliberately tried to make

her pitch to a diverse group. Eventually,two dozen people showed up, willing totake part. Three were turned away.

The crew used four conference roomsat a Holiday Inn and started with a one-hour presentation of the case. Then, thelawyers watched and listened as threeseparate groups of jurors deliberated.

“You have to speak their language. That’sone thing that we learned,” Griffin said.

But she said lawyers found the ersatz jurors were willing to listen to both sides.

There were socio-economic differencesthat emerged, and the lawyers learnedthat some things are more important fora rural jury than for citizens from a met-ropolitan area, Griffin added.

Medical terms and concepts also need-ed to be clearly explained, she said.

The lessons from the panels helpedhone the trial presentation.

“We found it, I think, to be invaluable,”Griffin said.

The short-term jurors seemed to getmore out of the experience than just acheck and a free breakfast. Many cameup afterward and offered to do it again.

“All of them seemed to enjoy it,” Griffinsaid.

The budget for the home-grown jury re-search effort was only about $4,000, she

said.

Augusta | n continued from page 1

AUGUSTA COURTHOUSE


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$750,000 Settlement

Plaintiff’s decedent was admitted tothe Richmond Veterans Affairs Hospitalon Sept. 14, 2012, for a skin lacerationafter scraping his leg. He had a historyof strokes and myocardial infarctions,was on Coumadin and was a dialysis pa-tient. While in the hospital, he was start-ed on an additional blood thinner dose ofheparin. Two days later, he experiencedan acute change in mental status, and ahead CT revealed an intracranial hemor-rhage, from which he eventually died. He

had received a supra-therapeutic level ofblood thinner, whichcaused a blood vesselin his brain to burstand then the massivehemorrhage. The INRwas not checked uponhis a

2016 virginia medical law report

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