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March 2005 Vol. 3, No. 2 $10.00 per copy

Man who lost use of arm wins $922K verdict

Award believed to be a record in Page County

BY ALAN COOPER When Leesburg personal injury attorney Barbara S. Williams wanted advice on the jury panel for her medical malpractice trial in Page County, she didn't bother with an investigator or a jury consultant. She went to George Warren Shanks, who has practiced law in the county--population 23,730 in 2004--for almost 30 years, and to an 82-year-old woman who had managed the Sears store in the county seat of Luray for 40 years. As a result, there were no surprises in the jurors who heard the case and returned a $922,856 verdict for Williams' client, Larry A. Jenkins. Jenkins alleged that osteopath Dwight T. Kemp had violated the standard of care when the physician operated on his right shoulder in January 2002. Kemp replaced Jenkins' arthritic shoulder, but Williams and her co-counsel, Gary A. Stein of Rockville, Md., contended that Kemp installed the head of the prosthesis too high on Jenkins' upper arm. As a result, the prosthesis "overstuffed" the ligaments, tendons and muscles that make up the rotator cuff and permanently damaged it, according to Jenkins' expert witness, Dr. Robert Neviaser, who is chief of orthopedics at the George Washington University Medical Center. Williams and Stein presented evidence from Kemp's medical records that the rotator cuff was not damaged before the surgery. They also contended that his left arm had deteriorated because of overuse after the surgery. Defense attorneys responded that the deterioration was further evidence that he was predisposed to shoulder injury. Jenkins, who was 52 at the time of the surgery, was a hydroelectric technician for Allegheny

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New statute on med-mal experts tested in Fairfax

BY ALAN COOPER A Fairfax County circuit judge has rejected an effort to get behind a plaintiff's attorney's certification that he has an expert in a medical malpractice case. The order entered earlier this month by Judge Gaylord L. Finch Jr. is one of the first judicial interpretations of Virginia Code § 8.0120.1, which took effect July 1 as one of a series of legislative agreements negotiated by the Medical Society of Virginia and the Virginia Trial Lawyers Association. (See story below as well.) The law says that service of a medical malpractice suit "shall be deemed a certification" that an expert who would qualify under Code § 8.01-581.20 has written an opinion that the defendant deviated from the standard of care and that the deviation was the proximate cause of the plaintiff's injuries. The expert is not required to testify at trial, "nor shall any defendant be entitled to discover the identity of the certifying expert or the nature of the certifying expert's opinions." The defendant also can require the plaintiff's attorney to affirm that he had such an expert opinion at the time he requested service of process. If the plaintiff did not obtain such an opinion before filing suit, the law requires a judge to impose sanctions under Code § and

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Med-mal law applies, letters not `service' HMO loses challenge

BY DEBORAH ELKINS A new Virginia med-mal statute applies retroactively to require a plaintiff to certify, with his service of process, that he already has an expert opinion supporting his case, a Fauquier County Circuit judge has ruled. Under Virginia Code § 8.0120.1, passed in 2005, a plaintiff's request for service of process on a med-mal defendant "shall be deemed a certification" that the plaintiff has a written, signed expert opinion that the defendant's conduct deviated from the standard of care and caused the plaintiff's injuries. The penalties for omitting to certify can be harsh: dismissal with prejudice and sanctions under Virginia Code § 8.01271.1. But in the Fauquier County case, Stewart v. Wampler, the trial judge let the case stay on the docket. Circuit Judge Jeffrey W. Parker said that the statute applied to a med-mal claim that had accrued before the statute passed. But the defendant did not get the statutory protection because "service of process" had not been formally effected through the parties' correspondence. Plaintiff Thomas E. Stewart first filed suit in August 2001 against a doctor and Fauquier Hospital, seeking $2 million for injuries that allegedly occurred

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to doctors' use of mark

`CareFirst' sued `First Care' group, alleging confusion

BY ANN W. PARKS DOLAN MEDIA NEWSWIRES Eleven Virginia physicians operating under the name "First Care" will not have to surrender their trademark in favor of HMO giant CareFirst of Maryland Inc. because the mark did not create a likelihood of confusion among the public, a federal appeals court has held. The 4th U.S. Circuit Court of Appeals affirmed the grant of summary judgment by a federal judge in Norfolk to First Care P.C., which offers family medical services in Portsmouth and Chesapeake. The case is CareFirst Of Md. Inc. v. First Care P.C. (VLW 006-2-014). When CareFirst filed suit against the doctors in March 2004, it was the largest health maintenance organization in the mid-Atlantic states, with 3.2 million members, 80 percent of whom reside in Maryland, Delaware, the District of Columbia, and Northern Virginia, the opinion states. "The two marks at issue here have very different appearances in the marketplace because the CareFirst mark is almost always paired with the Blue Cross Blue Shield language, while the First Care mark is always presented by itself, or at most with the suffix `P.C.,'" Judge Diana G. Motz wrote for the court. "In contrast to the accouterments surrounding CareFirst's mark in its public appearances, First Care presents its mark plainly and without any graphics." Jason C. Kravitz, a Masss continued on PAGE 17



With this issue, we begin publication of a semiannual review of medical-malpractice verdicts published in Virginia Lawyers Weekly. Beginning on page 5, you'll find a compilation of all such verdicts from JulyDecember 2005. Reports are characterized as verdicts in favor of doctors, verdicts in favor of plaintiffs or settlements. This next such compilation, covering January to June 2006, will appear in the July 2006 edition of Virginia Medical Law Report. Paul E. Fletcher Publisher

ALSO INSIDE: Mental health services to poor lag in Fairfax County, page 3.

Cite this page 3 M.L.R. 35

March 2005

Virginia Medical Law Report · 19

20 · Virginia Medical Law Report

March 2005

Cite this page 3 M.L.R. 36

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March 2005

Virginia Medical Law Report · 13

VERDICTS IN FAVOR OF PLAINTIFFS ­ SEMIANNUAL REVIEW Patient awarded $1.5M for removal of too much skin during surgery

The plaintiff, Ann M. Shorter, age 60, was referred to Dr. Carol A. Wray in 2000 for evaluation and removal of a benign lipoma from under her right arm. During this course of treatment, Dr. Wray evaluated Mrs. Shorter as a potential candidate for breast reduction. At that time, Mrs. Shorter weighed 248 pounds and wore a 46DD bra, and she had significant shoulder notching and back pain. During her On March 1, 2001, Dr. Wray removed skin from Mrs. Shorter's groin and grafted two areas on each of Mrs. Shorter's breasts. Despite the skin grafts, there was further wound dehiscience, but after several weeks, the wounds healed. However, by July of 2001, Mrs. Shorter had developed hard "knots" behind each of her nipples measuring 5 to 5.5 cm. Dr. Wray indicated she would watch these knots and hopefully they would dissolve in time. When Mrs. Shorter returned to Dr. Wray on Oct. 10, 2001, the knots remained the same size, and Dr. Wray recommended that these knots be removed which would necessitate bilateral mastectomies. At this point, the physicianpatient relationship had deteriorated and Dr. Wray suggested Mrs. Shorter see another surgeon. Mrs. Shorter contactPlaintiff's team: (L-R) Bill Wilson, Nolan Nicely & Russell ed Duke University and in November of 2001, she Updike was examined by Dr. initial evaluation, Dr. Wray estimated the size Michael Zenn. During his initial examination, of Mrs. Shorter's left breast to be approxi- Dr. Zenn indicated that Mrs. Shorter had been mately 1500 grams and her right breast to be marked incorrectly which had resulted in too approximately 1100 grams. Dr. Wray recom- much skin being removed and in an effort to mended Mrs. Shorter for a breast reduction, "close" the incisions, Dr. Wray had removed too and Mrs. Shorter agreed to proceed. The sur- much breast tissue. Mrs. Shorter subsequentgery was subsequently scheduled for Feb. 7, ly underwent a series of operations performed 2001, and on Feb. 6, 2001, Dr. Wray "marked" by Dr. Zenn including bilateral mastectomies Mrs. Shorter using a standard "wise" pattern. with the insertion of tissue expanders and During the breast reduction procedure of eventually breast reconstruction with Feb. 7, Dr. Wray removed 1401 grams of breast implants. tissue from the left breast and 1044 grams of Mrs. Shorter filed suit against Dr. Wray and tissue from the right breast, which amounts Lewis-Gale Clinic in February of 2003. were over 90% of the total breast tissue esti- Pursuant to the testimony of Dr. Zenn, the mated by Dr. Wray prior to surgery. Although plaintiff argued that Dr. Wray incorrectly the operative report reflected no difficulties marked Mrs. Shorter on Feb. 6, 2001, and as a during the procedure, Dr. Wray noted that the result, removed too much skin during the ininipples had darker bleeding and had a dusky tial incisions of the breast reduction. After (bluish) color on the day of the procedure and removing too much skin, Dr. Wray had diffithe following day. Mrs. Shorter's chest was culty closing the wounds and subsequently wrapped until she returned to see Dr. Wray on removed too much tissue in an effort to get the Feb. 12, 2001, at which time the dressings skin "closed." As a result, the incisions were were removed. On Feb. 21, 2001, Mrs. Shorter very tight and began to separate. In addition, returned to Dr. Wray with a 2 x 4 cm separa- the tension and excessive removal of breast tion or "dehiscience" on her right breast and tissue resulted in devascularization of the nipsome small areas of breakdown around her ple complex which resulted in the formation of right nipple. Dr. Wray scheduled her to return the "knots" of scar tissue that had to be the following day for reclosure of the larger removed. dehiscience, and on Feb. 22, 2001, the dehiAlthough Dr. Wray had limited recollection science had increased to 2 x 8 cm. Dr. Wray re- of actually marking Mrs. Shorter or performsutured this area on the right breast. Prior to ing the surgery, Dr. Wray testified that she her next appointment, Mrs. Shorter called Dr. performed the surgery on Mrs. Shorter in the Wray's office to report that the wound had same manner she had done in several hunreopened, and on Feb. 28, 2001, Dr. Wray noted dred other cases. Defendants asserted that that the sutures had "literally ripped through" smaller areas of wound dehiscience and the the skin. At this time, Mrs. Shorter also had formation of fat necrosis were recognized comsmaller areas of dehiscience on her left breast. plications of a breast reduction procedure. Dr. Wray recommended skin grafting to close Defendants also asserted that Dr. Wray's prethe wounds, and Dr. Wray indicated she would surgery estimates of total breast tissue were waive her fees for this procedure. rough estimates and noted that Mrs. Shorter had over 300 grams of tissue left in each breast at the time of her mastectomies. Defendants argued that Mrs. Shorter's case was complicated on her right breast because of an old biopsy scar, and defendants argued Mrs. Shorter was a "poor healer" as reflected in the fact that she had minor complications after several procedures including a 1998 breast biopsy, the lipoma removal by Dr. Wray in 2000 and two "wound healing" issues with Dr. Zenn's surgeries. Defendants also asserted that the appearance of Mrs. Shorter's breasts was partially related to a weight loss of 30 pounds. However, Dr. Wray and all testifying plastic surgeons conceded that they had never known of a breast reduction case that resulted in bilateral mastectomies and reconstruction. Defendants insisted that Dr. Wray was not responsible and no offer of settlement was made at any time. After a four-day jury trial, the jury deliberated for approximately 90 minutes before returning a $1.5 million verdict for the plaintiff. The medical-malpractice cap at the time of Mrs. Shorter's procedure was $1.55 million. Defendants requested 21 days to file post-trial motions. Type of Action: Medical Malpractice Type of Injuries: Non-cosmetic Breast Reduction Resulting in Bilateral Mastectomies and Reconstruction Name of Case: Shorter v. Carol A. Wray, M.D. and Lewis-Gale Clinic, LLC Court/Case No.: Circuit Court for City of Roanoke - Case No: CL03-133 Name of Judge: Judge Clifford Weckstein Special Damages: $96,347.57 in past medical bills and approximately $25,000.00 in future medicals Awarded/Settled: Jury Verdict on Aug. 19, 2005 Amount: $1.5 million Highest Offer: None Submitting Attorneys: William T. Wilson, Russell W. Updike and Nolan R. Nicely Jr., Covington Plaintiff's Expert: Dr. Michael Zenn, Plastic Surgeon, Duke University (Expert and Treating Physician) Defendants' Experts: Dr. Raymond Morgan, Plastic Surgeon, University of Virginia; Dr. James Samuel Mitchener, Plastic Surgeon, Roanoke Insurance Carrier: MAG Mutual Insurance Company [05-T-56]

$1.4M awarded in face lift case

Type of Action: Medical Negligence Surgery Involved: Cosmetic Mid-Face Lift Injuries Alleged: Three (3) severed facial nerves requiring nerve graft reconstruction Name of Case: Vines v. Ladocsi and Richmond Plastic Surgeons, Inc. Court/Case #: Henrico County Circuit; Case No. CL04432 Trial Date: Oct. 25-26, 2005 Jury Award: $1.4 million Special Damages: $74,000 Attorneys for Plaintiff: Stephen J. Cannella and Robert W. O'Neal, Richmond Highest Offer: None Plaintiff's Experts: Dr. Hallene ("Hal") Maragh, M.D., Richmond ­ Treating plastic surgeon for nerve grafts; Dr. Frederic ("Rick") Newman, M.D., Darien, CT/Scarsdale, NY Defendant's Experts: Dr. Jonathan Jacobs, M.D., Virginia Beach; Dr. Timothy Silvester, M.D., Lynchburg STEPHEN J. CANNELLA [05-T-80]

Prisoner death prompts med-mal verdict

The decedent was a 23-year-old man serving a five-day sentence for a traffic violation in the Portsmouth City Jail. Since childhood, he had severe asthma requiring multiple emergency hospitalizations often requiring emergency intubation and respiratory support. One such hospitalization had occurred approximately one month before his incarceration. Over his first 36 hours of incarceration he had approximately six visits to the jail's medical staff reporting episodes of respiratory distress. The principle jail nurse testified as a plaintiff's witness at trial that she had requested the on-call jail physician, Dr. Sutton, to send Mr. Benthall to the emergency room because she felt his attacks were growing in severity. After several phone calls to Dr. Sutton, Mr. Benthall was finally approved for transfer to the emergency room but collapsed at the jail in respiratory arrest before the rescue squad arrived. When he arrived at the ER, Mr. Benthall was essentially brain dead. Plaintiff's expert witness was Dr. Lawrence Schwartz, the chair of the MCV Division of Rheumatology, Allergy and Immunology. The defense's expert was Dr. Mitchell Miller, a family practitioner from Virginia Beach who is also the immediate past president of the Virginia Medical Society. The sole statutory heir was Mr. Benthall's daughter. She was 3 years old at the time of his death but the case was tried nine years thereafter, when she was 12. The case was tried quickly and evidence was concluded in a day and a half. The jury took just under two hours to return its verdict. After briefing and argument, Judge Piersall overruled defense objections and judgment has been entered upon the verdict. Type of Action: Prisoner death, medical malpractice Injuries alleged: Death of 23-year-old man with sole statutory heir his infant daughter Name of Case: Whitfield, Administratrix of the Estate of Mark Anthony Benthall, deceased v. Sutton Court/Case No.: Portsmouth City Circuit Court, Case No. CL:00-405 Tried Before: Jury Name of Judge: Von L. Piersall, Jr. Special damages: $18,873.61 Verdict or Settlement: Verdict Amount: $768,873.61 Date of Verdict: May 11, 2005 Most helpful expert: Lawrence B. Schwartz, MD, Allergy & Internal Medicine, VCU Health System, Richmond, Virginia Insurance Carrier: St. Paul's Attorneys for Plaintiff: Stephen W. Bricker, Richmond; Michael N. Herring, Richmond [05-T-37]

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14 · Virginia Medical Law Report

December 2004

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Prescription error leads to $200K settlement

Plaintiff was a 61-year-old man generally in a state of good health. He developed swelling in his left ankle that was determined to be a deep venous thrombosis. His vascular surgeon gave him a prescription for Coumadin, a blood thinner, to be taken in doses of 10 mg per day. The plaintiff took the prescription to the defendant drug store where it was filled with instructions for him to take 25 mg. per day. The plaintiff complied with these erroneous instructions and two days later, suffered a massive rectal hemorrhage. He reported to the emergency department and was admitted for an overnight stay for observation. He was released the next day. The hemorrhage recurred two additional times resulting in two additional hospitalizations. Once the plaintiff's Coumadin blood levels were depleted, the hemorrhages stopped spontaneously. Type of Action: Medical Negligence/ Prescription Error Name of Case: Confidential Court: U.S. District Court for the Eastern District, Norfolk Division Special Damages: Medicals - $18,000.00; Wages - $4,000.00 Verdict or Settlement: Settlement after mediation Amount: $200,000.00 Date: July 15, 2005 Insurance Carrier: Self-Insured Plaintiff's Attorney: James C. Lewis, Virginia Beach [05-T-57]

Med-mal claim over nerve surgery settled

Plaintiff was a 36-year-old heavy equipment operator. He worked in the logging business operating a knuckle boom. In January 2001 he pulled on a chainsaw and suffered shooting pain in his right arm. He saw defendants, an orthopedic surgeon and physical medicine and rehabilitation physician who performed EMG/nerve conduction studies. These studies showed median nerve neuropathy. It was disputed by experts retained by the parties whether those studies also showed ulnar neuropathy. After a period of conservative treatment the plaintiff was scheduled for both carpal tunnel release and anterior transposition of the ulnar nerve in April 2001. The carpal tunnel procedure alleviated some of the plaintiff's problems and was not an issue in the case. The anterior transposition of the ulnar nerve, however, was unsuccessful. Plaintiff's symptoms became worse after the surgery and he experienced denervation and sensory loss that had not existed prior to the surgery. The plaintiff's theory was that anterior transposition of the ulnar nerve was not indicated, particularly in light of the fact that all of plaintiff's ulnar nerve symptoms had resolved five weeks prior to surgery, according to the defendants' office notes. Defendants contended that the symptoms had returned as indicated in the chart of the patient's last visit before surgery, and that conservative treatment had failed. The plaintiff's second theory was that the orthopedic surgeon failed to properly excise the medial intermuscular septum during the surgery, a critical component of the surgery. Defendants argued that findings upon a reexploration of the area by a second physician indicated that the plaintiff had formed excessive scar tissue which led to his post-operative ulnar pathology. Defendants retained a well-published orthopedic hand surgeon from New York City as well as an orthopedic surgeon from the University of Virginia who testified in deposition that the defendants met the standard of care and that there was no evidence of surgical error. They also identified a physical medicine and rehabilitation physician who testified the defendant who read the plaintiff's EMG/nerve conduction studies met the standard of care when he diagnosed ulnar neuropathy. The plaintiff continued to work. He was given a 16 percent permanent partial disability rating of the upper extremity as a result of ulnar neuropathy, but it was less than clear how many of his problems may have been related to his original work injury as opposed to the alleged malpractice. The first expert to review the case for the plaintiff required a $3,000.00 non-refundable payment before reviewing the records. He opined that the defendants did not breach the standard of care. Counsel retained a second expert who advanced the plaintiff's theories noted above. Defendants were well-respected physicians without a history or paid claims. The case was settled two weeks prior to trial. Type of action: Medical Malpractice Name of case: Confidential Court: Circuit Court for the City of Richmond Injuries alleged: Ulnar neuropathy, sensory loss Verdict or Settlement: Settlement Date: Feb. 1, 2005 Amount: $200,000.00 plus payment of a portion of the plaintiff's costs in the amount of $8,763.50 Special damages: medical expenses in the amount of $37,610.90 and lost wages in the amount of $14,950.00 Plaintiff's Experts: Raymond A. Wittstadt MD, Lutherville, Md.; Brian A. Casazza MD, Charlottesville Plaintiff's Attorney: R. Lee Livingston, Charlottesville [05-T-29]

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Death case against dermatologist settled for $1.25M

Plaintiff was an otherwise healthy 47-year-old man who relocated and began regular treatment for actinic keratoses and skin cancers with a local dermatologist. He was seen every three months and evaluated from the waist up for any signs of a problem. Over a period of years, many lesions were removed by desiccation and curettage. Pathology was generally done in-house by a fellow dermatologist, but was occasionally sent to a local community hospital for the pathologists to review. On a regular visit in January 2002 the patient pointed out a large, hard lump on his upper lateral neck. The defendant doctor did a desiccation and curettage. When the in-house review reported infiltrating squamous cell carcinoma to the deep margins, the slides were sent out for a second opinion to the local pathologists who confirmed the diagnosis and reported that the cancer was well-differentiated. The patient was not informed until he returned for regular follow-up three months later. An excisional biopsy was performed by the defendant and again showed infiltrating squamous cell carcinoma to the margins, this time to the fatty layer and it was now moderately well-differentiated. The patient returned for removal of his stitches and was not informed. When the area looked strange, he came in for a follow-up appointment in late June and this time multiple punch biopsies were performed and a regular follow-up planned for August. When the punch biopsies were reported as more infiltrating squamous cell carcinoma, the defendant referred the patient to a tertiary care facility for Moh's surgery, which was performed a few days later. The cancer had spread to the parotid. Skin grafts were performed after an extensive resection and radiation was undertaken. During follow up, an additional squamous cell cancer was removed from his cheek. Six months after the radiation was completed, the cancer was found to have metastasized to his brain. Chemotherapy was unsuccessful and he died eight months later. The defense argued that his situation was irreversible by the time the lump was brought to the dermatologists' attention, that the cancer was unexpectedly aggressive and that with so many lesions it was impossible to confirm which of them had caused his death. The defense had no expert on the standard of care but relied on its oncology expert. Plaintiff had a dermatopathologist review all of the patient's slides and reported that the January lump had certainly been visible to the defendant at least six months earlier based on its size and ulcerations and would have been treatable if diagnosed on a timely basis. An oncologist for the plaintiff reported that the incomplete excision in January caused the cancer to become more virulent thereafter and testified that it was treatable as late as February or March after that incomplete excision. Standard of care testimony was rendered by both the dermatopathologist and a dermatologist in private practice. The plaintiff was survived by two children, ages 22 and 24, and his wife of 30 years. Type of action: Medical Malpractice Injuries alleged: Wrongful death case Name of case: Confidential Court/Case No.: Confidential Awarded or settled: Settled Special damages: Funeral and burial expenses $3,442.51; lost earnings of $1,436,078 Settlement amount: $1,250,000 Date of settlement: July 19, 2005 Attorneys for plaintiff: Christine Thomson, Charlottesville Plaintiff's experts: Dermatologist, Dermatopathologist, Oncologist, Economist [05-T-62]

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Cite this page 3 M.L.R. 31

December 2004

Virginia Medical Law Report · 15

SETTLEMENTS ­ SEMIANNUAL REVIEW Failure to monitor patient case settles for $1M

In June 2002, the decedent underwent cardiac catheterization at the defendant hospital due to the recent onset of chest pain and a positive stress test. The procedure was completed at 3:30 p.m., and revealed no abnormalities in the coronary arteries. After the procedure, the decedent was transferred to a room on the telemetry ward, where he came under the care of the defendant nurse. At 7:30 p.m., the nurse allowed the decedent to get out of bed and walk to the bathroom. The wife of the decedent's hospital roommate was prepared to testify that the decedent was wobbly on his feet and had to be assisted by the nurse to the bathroom. The witness was also prepared to testify that the nurse left the room, while decedent urinated in the bathroom, unassisted and unattended behind a closed door. While the decedent was standing to urinate, he became dizzy and fell backwards striking his head on the floor rim of the shower. The fall caused a skull fracture with massive infra-cranial bleeding, which resulted in the decedent's death the following day. The plaintiff alleged that the defendants failed to appreciate that her husband was still under the effects of the medication given during the cardiac catheterization procedure and was not stable enough to urinate unassisted and unattended in the bathroom. The plaintiff's experts testified at deposition that the nurse was required to have the defendant complete his first void following the cardiac catheterization procedure at the bedside using a urinal. The plaintiff's experts also testified that if the nurse was concerned about the patient's privacy, she was required to call a male to accompany the decedent into the bathroom and safeguard him against a fall. The defense argued that a proper nursing assessment was performed, which indicated that the patient was stable enough to urinate unassisted behind a closed door in the bathroom. According to the defense, the decedent had recovered from the effects of the medication given during the cardiac catheterization procedure, which ended four hours earlier. Additionally, the nurse properly assessed her patient, who was stable and not wobbly on the way to the bathroom. Further, the defense argued that the patient was instructed to sit while he urinated, and that it was not a breach in the standard of care to give the patient his privacy when he was in stable condition. Finally, the defense argued that an unforeseeable event occurred in the bathroom, which caused the fall, and the resulting skull fracture and death. The decedent is survived by his wife and three minor children. Type of Action: Medical Malpractice, Failure to monitor patient in hospital room following cardiac catheterization, Fall in bathroom causing skull fracture and death Case Name: Doe v. Nurse and Hospital Court: District of Columbia Settlement: $1 Million Attorneys for Plaintiff: William E. Artz and Andrew J. Waghorn, Arlington [05-T-41]

Case over hot-tea burns is mediated

The 62-year-old plaintiff was being treated in the ICU for an unrelated condition. She was in a confused and agitated state, and was receiving sedatives. Defendant nurse served plaintiff a hot cup of tea and left her unattended. When the nurse returned, the hot tea had spilled on plaintiff's groin resulting in severe third degree burns which required months of treatment. Plaintiff claimed defendant nurse was negligent for serving tea that was too hot for any patient and in the alternative for leaving plaintiff unattended with a hot liquid. Parties settled the case at mediation prior to filing suit. Type of Action: Medical Malpractice Type of Injuries: Third degree burns to groin Style of Case: Doe v. ABC Hospital Outcome of Case: Mediated by Judge Norman Olitsky of the McCammon Group Settlement: Confidential Plaintiff's Attorneys: John M. Flora and Gregory L. Sadler, Norfolk Plaintiff's Experts: Treating MDs [05-T-52]

$1.1M settlement for over-radiation during cancer treatment

In August 2003, the plaintiff began radiation treatments for prostate cancer at the defendant hospital. Radiation was delivered by IMRT, where computer stipulation is used to determine the most effective way to distribute radiation to the tumor, while sparing normal tissue. With IMRT, the radiation beam is divided into multiple segments, each segment carrying a different dose to a different target within the organ affected by the tumor. This contouring of the radiation beam to match the tumor is accomplished by directing the radiation through various ports from the linear accelerator. The plaintiff received 36 treatments over 50 days. In September 2003, the plaintiff experienced extreme pain on defecation, which was not relieved by Percocet and hydrocortisone cream. The plaintiff also developed rectal ulcerations. Radiation treatments were stopped, pending a review by the hospital's physicist, who determined that the plaintiff had received unintended treatments through one port in the linear accelerator, which had remained open, but was supposed to be closed. The plaintiff's experts were prepared to testify that hospital employees operating the IMRT machinery failed to properly monitor the radiation machinery. The over-radiation caused severe burns to the rectum, which required hyperbaric treatment and placement of an internal morphine pump to relieve pain. The plaintiff cannot work due to his injuries and must use stool softeners and enemas to defecate. The plaintiff may also require a colostomy and/or hip replacement in the future. Type of Action: Medical Malpractice, Over-Radiation of Prostate Cancer with IMRT Machine; Severe Damage to Prostate, Rectum, and Hip; Permanent Bowel Problems; Possible Future Colostomy; Hip Replacement Case Name: Woe v. Doe Hospital Court/case #: Withheld Settlement: $1.1 Million Attorneys for Plaintiff: William E. Artz and Andrew J. Waghorn, Arlington [05-T-31]

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16 · Virginia Medical Law Report

December 2004

Cite this page 3 M.L.R. 32

Paging all doctors...

Exciting changes going on in your practice? New hospital affiliation or promotion?

Alert your colleagues in the medical community. Run a professional announcement in the next issue of the

Virginia Medical Law Report!



Contact Renee Baldwin E-mail: [email protected] Call: 1-800-456-5297, ext. 14

Cite this page 3 M.L.R. 33

December 2004

Virginia Medical Law Report · 17

Man who lost use of arm wins $922K verdict

s continued from PAGE 1

New statute on med-mal experts tested in Fairfax

s continued from PAGE 1

Power earning about $46,000 a year. He attempted to go back to work but never regained working use of the arm. He cannot extend his arm to shake hands, put a wallet in his back pocket or pass food at the dinner table. He can lift no more than 10 pounds. A supervisor testified that he was essentially a one-armed employee after the surgery. Williams said Jenkins incurred $46,866 in medical expenses and would have earned $385,624 if he had continued to work until his planned retirement age of 62. The jury deliberated for about two hours at the end of the three-day trial before returning its verdict.

Williams said she believes the malpractice verdict is the largest ever returned in Page County, which gets few such trials. She said she believed that Jenkins went to the Washington area for an attorney and retained Stein because of the close-knit nature of the small county population. Stein associated her as local counsel. He made the opening statement and closing argument and handled the testimony of the medical experts. Williams examined Jenkins and family members and former co-workers about his limitations after the surgery. She also examined Sandra Wells-Brown, a vocational rehabilitation counselor from Stanardsville who testified that Jenkins essentially was unemployable.

Med-mal law applies, but letters not `service'

s continued from PAGE 1

during a barium enema. He nonsuited in May 2004, and refiled his lawsuit on Oct. 29, 2004, according to Parker's letter opinion of Jan. 20. When Stewart refiled, he did not seek immediate service of process. After nearly a year, Stewart's lawyer inquired if both counsel who would be trying the case would "accept service," as opposed to effecting service through a process server recognized by statute. The lawyer for the defendant physician, Dr. G. Benjamin Wampler, sent a letter a week later saying "she would accept service," and asking that the motion for judgment be forwarded to her or her associate. A few days later, the plaintiff's lawyer mailed a copy of the pleading with a cover letter, but no proof of service form, to the doctor's lawyer. On Oct. 5, the plaintiff 's lawyer "rescinded" his letter and said he would serve the parties by sheriff. On Oct. 11, 2005, the doctor filed his responsive pleading anyway, prior to receiving service of process by the sheriff. Meanwhile, the lawyer for the defendant hospital also wrote to the plaintiff's lawyer, saying she was authorized to accept service, and that service would be "effective" on the date she received the motion for judgment by mail from the plaintiff 's lawyer. Again, that lawyer sent a cover letter and copy of the pleading, but no proof of service form. The hospital's lawyer wrote to the plaintiff's lawyer, requesting a written expert certification as required by Code § 8.01-20.1. The statute gives a plaintiff 10 days to meet a defendant's request for an expert certification. In a faxed letter, the plaintiff's lawyer said that he had confirmed "orally with a surgeon" that the plaintiff's injury had been caused by a mistake by the hospital or the doctor. The hospital's lawyer threatened a dismissal motion under Code § 8.01-20.1. The plaintiff's lawyer

sent the same letter to both defense lawyers, "rescinding his service." The hospital filed its responsive pleading the next day. "No further documentation of a certification of written medical opinion in conformity with § 8.01-20.1 was filed by the Plaintiff," Parker wrote. The certification statute was part of the package of reforms agreed to last year by the Virginia Medical Society and the Virginia Trial Lawyers Association. Noting that the new statute was intended to discourage the filing of nuisance suits, Parker said the statute was "a procedural rather than substantive change," and it applied to the case at hand. But the exchange of correspondence among the lawyers did not amount to a "request of service" under the new statute, Parker said. The defense lawyers did not prepare any proof of service forms under Code § 8.01-327. Although attorneys of record can be served, neither defense lawyer had appeared and been designated counsel of record. The legal effect of the parties' conduct "was to simply informally waive service," Parker wrote. No "request of service" meant the defendant could not invoke the protection of the statute and get the case dismissed. "The Court believes that if a Defendant wishes to avail itself of the strict requirements placed upon the Plaintiff by § 8.01-20.1, it must necessarily strictly comply with the statutory procedures itself and not concurrently engage in less formal mechanisms of legal conduct," Parker concluded. Fairfax lawyer R. Craig Jennings represented the plaintiff. Manassas lawyer Susan L. Mitchell and Fairfax lawyer Richard L. Nagle represented the defendants. None of the lawyers could be reached for comment.

consider dismissing the case with prejudice. After Benjamin W. Glass III, a Fairfax personal injury lawyer, notified the attorneys for Dr. Alan Joshua that he intended to file a medical malpractice suit, the defense attorneys requested formal service of process and twice wrote letters seeking affirmation that the appropriate certification had been obtained. Defense attorneys R. Harrison Pledger Jr. and John E. Peterson Jr. of Chantilly then filed an interrogatory seeking the "profession, specialty and qualifications of each expert witness" that had signed the written opinion required by § and the dates the opinion was signed and received by Glass. When Glass responded that the law did not require such disclosure, the defense attorneys filed a motion to compel production of the information. In support of their motion to compel, the defense attorneys said they had "carefully crafted" their request so as not to ask for the identity of the expert or for the nature of his opinions. "The purpose of the instant motion is simply to compel information sufficient to permit defendant to independently assess the qualifications of the certifying expert in light of subsection A of Virginia Code § 8.01-581.20," the motion said. "Given the sanctions contemplated by Virginia Code § 8.01-20.1, this information is relevant and necessary." Glass responded that the new law excludes from discovery the information requested by the defense attorneys. "[I]t creates no additional right of discovery even though, presumably, the legislature could have provided for additional discovery or mandatory disclosure of facts, opinions, identity or qualifications," Glass wrote.

Finch's order denied without elaboration the motion to compel production. Glass said last week, "While [defense attorneys] kept saying, `This isn't personal,' we sort of took it that way." David D. Hudgins, an Alexandria lawyer who frequently represents medical malpractice defendants in Virginia, Washington and Maryland, said Maryland has for years had a similar law requiring a certificate of merit by a plaintiff's attorney and a corresponding certificate of defensibility by the defendant. If the Maryland experience is a guide, "the ultimate effect [in Virginia] is a meaningless procedural step that I think will have little impact on tort reform," Hudgins said. Both plaintiffs' and defense attorneys have developed experts willing to meet the statutory requirements, he said.

HMO loses challenge to doctors' use of mark

s continued from PAGE 1

achusetts attorney who represented First Care, said CareFirst simply didn't prove its case. "All their promotional material incorporates Blue Cross Blue Shield, which is what consumers associate the company with," Kravitz said. "They don't recognize CareFirst; it's not a powerful trademark." Nor were people likely to be fooled by what Kravitz called a "superficial similarity." "You look at how consumers confront marks in the real world," he said, "and in the real world, their mark is Blue Cross Blue Shield." CareFirst was registered with the U.S. Patent and Trademark Office in 1989. In February 2004, it learned that approximately 90 of its members had received medical services from First

Care doctors and sent the latter a cease-and-desist letter. Approximately 2,500 CareFirst members live in First Care's area of operations in Southeast Virginia, the opinion states. First Care, which had been using its mark since 1995, applied for state registration in Virginia in April 2004, after CareFirst's suit was filed. The appeals court rejected CareFirst's evidence of a telephone survey of CareFirst members in First Care's area, saying it established a "confusion rate" of 2 percent at most. It also rejected a claim that CareFirst's mark was unlawfully diluted by an inferior mark. "Here, the text of the two marks are similar but not identical," Motz wrote. "Therefore, the similarity of the marks provides little circumstantial evidence of actual dilution here."



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March 2005

Virginia Medical Law Report · 3

Personal injury defense lawyers face rise in malpractice claims



Check your professional liability policy and you'll find a clause in there somewhere that says that if you are sued for medical malpractice, then the insurer will retain a lawyer on your behalf to defend you. Check your automobile liability policy, and you'll find similar language: If you cause a car accident, the company will get you a lawyer. Many defense law firms rely on their continuing relationships with insurance adjusters and carriers to gain cases and This story originally appeared in Lawyers Weekly USA, another Dolan Media newspaper.

other work. But the nature of those often longstanding relationships may be changing. In a dramatic shift from the past decade, many states now allow insurance companies to sue the lawyers they hire to protect them from payouts in personal injury suits. And increasingly, insurers unhappy with the legal work done by defense lawyers are suing their own outside counsels for malpractice. According to an American Bar Association study released last summer, malpractice claims against personal injury defense lawyers increased 6 percent from 1999 to 2003 ­ the largest increase in any practice area. Nearly 10 percent of all malpractice claims in 2003 were filed against personal injury defense lawyers Personal injury-defense now ranks

third in malpractice claims, behind topranked personal injury-plaintiff and real estate. Family law and trusts and estates rank fourth and fifth, respectively. "It's not a staggering number, but it's about the only [practice] area in which we saw an increase," said Tampa lawyer Benjamin H. Hill III, who chaired the ABA committee that produced the report. "Everyone has known in the past that being a personal injury plaintiff's attorney was fertile ground for [malpractice] claims," commented Michael A. Glasser, a committee member and bankruptcy lawyer in Norfolk. "Now it appears that it doesn't matter what side of the fence you're on." Mark Bassingthwaite, a risk management coordinator for ALPS, a Missoula, Mont. professional liability carrier, said personal injury defense lawyers traditionally had little concern about malpractice claims. "The defense bar has historically been a very, very safe haven," he said. Several decades ago, defense lawyers in most states could not be sued by carriers, on the grounds that there was not a direct attorney-client relationship. "However, courts seem to be relaxing the prohibition that historically has been followed," Hill noted, "and allowing insurance carriers to sue lawyers." A federal judge in Virginia's Eastern District last year ruled that an insurer could sue a law firm for legal malpractice as a non-client beneficiary of legal services. That case was General Security Insurance Co. v. Jordan, Coyne & Savits, 357 F.Supp.2d 951 (E.D. Va. 2005). The malpractice action was filed by an insurer against a firm it hired to defend an insured in a personal injury suit arising out of an automobile accident. The court noted that, "[D]espite sharp doctrinal differences regarding the relationship between the insurer and the

firm it retains, nearly all jurisdictions in the United States permit some form of legal malpractice action by an insurer against the firm it retains to defend an insured." Furthermore, the court held, "permitting an insurer to sue the firm it retains can `promote ... enforcement of [the firm's] obligations to the insured. ... [D]espite the fact that `the tripartite relationship between insured, insurer and defense counsel contains rife possibility of conflict' ... nearly all courts have concluded that the harms-benefit calculus weighs in favor of recognizing an insurer's legal malpractice claim against the lawyer or law firm it retains to represent an insured." Cause for trend? The ABA survey did not detail the cause of malpractice claims in particular practice areas. But preparation, filing and transmittal of documents accounted for nearly a fourth of all claims across the board. Problems with pre-trial and pre-hearing activity triggered nearly 20 percent of claims. Both Glasser and Hill said they aren't sure what's driving the increase in malpractice claims against personal injury defense lawyers. Glasser did note, however, that "I do know insurance companies are becoming much more vigilant over billing. They sometimes get their own accounting firms to go back and comb through bills." It's ironic, Hill added, that cost-conscious insurance carriers restrict the amount of discovery work attorneys can do, then complain about the result. "A lot of insurance companies operate with a very tight budget and limit the work a lawyer can do," he said. "Now, if a lawyer gets a bad result because of the limitations imposed by the carrier in the defense of its insured, and then the lawyer gets sued - well, that doesn't seem fair."

Report: mental health services to poor lag in Fairfax County

FAIRFAX (AP) The mentally ill who are not insured or underinsured can wait as long as six months to see a therapist in Fairfax County, a community services board found. For a group home, the wait can stretch into years, the Fairfax-Falls Church Community Services Board told supervisors in an annual report this month. The agency operates mental health, mental retardation and substance abuse programs for the county on a $149 million budget. "We're in bad shape," John DeFee, director of mental health services, told supervisors. As of March 1, according to agency records, 173 people were awaiting initial screening by therapists, and the wait could stretch as long as six months. Once they have received diagnoses, patients can wait anywhere from two weeks to two months for placement in adult outpatient programs. More than 660 people are seeking temporary or permanent spaces in group homes, where a wait for one of the 575 beds can run from eight to 10 months to "literally years," depending on the length of the stay, DeFee said. "Quite frankly, it depends on whether someone moves out or passes away," he added. The mentally ill aren't the only county residents struggling for access. Agency waiting lists show 344 adults seeking alcohol or drug treatment. The average wait is described as "variable." Supervisors, concerned by the waiting periods, gave the Community Services Board 90 days to devise a plan to address the issue. "I shudder to think that someone might have to wait six months for a diagnosis," Supervisor Penelope A. Gross said. Fairfax County provides about 55 percent of the agency's budget, while Medicaid pays 22 percent. Advocates have long criticized the state's level of funding, which was 12 percent last year. Dotti McKee, a Fairfax resident and advocate for the mentally ill, said when her 36-year-old son was released from a state mental hospital this year, she was told it would be two years before the county could place him in a group home. Since then, she has found him rooms in private homes that she said are ill-suited to his needs. "The help is just not there," McKee said. Agency officials say they are dealing increasingly with patients whose multiple medical problems and personal circumstances pose special challenges. The county's sheer size - approximately 1 million - is also a challenge. More than 83 percent of the 11,000 people who received mental health care last year have annual household incomes below $25,000. Most are either uninsured or underinsured. Other jurisdictions face similar problems, but to a lesser degree. Loudoun County, which serves about 2,000 mental health patients a year, had 45 adults seeking outpatient care as of March 7. The average wait is 33 days, although some patients have encountered delays of up to three months. Tom Maynard, Loudoun's director of Mental Health, Mental Retardation and Substance Abuse Services, said that the waits have been "a chronic difficulty" but that his agency tries to get everyone evaluated and into treatment within a month. "It's been a mighty struggle," he said.

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4 · Virginia Medical Law Report

March 2005

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Help for health care providers who treat illegal immigrants

BY BARRY F. ROSEN AND JACY D'AIUTOLO DOLAN MEDIA NEWSWIRES Hospitals, physicians, ambulance companies, and other health care providers are often called upon to treat people before the provider is able to learn much information about the individuals. Providers often learn, once the appropriate care has been given, that the individual has no capacity to pay for the care. Certain federal and state programs, such as Medicaid and Medicare, can sometimes help pay for these services, and alleviate the burden on health care providers. However, undocumented immigrant patients are generally not eligible for these government programs, and often lack an ability to pay through other means. Hospitals, in particular, are greatly affected by this phenomenon. The Emergency Medical Treatment and Labor Act (EMTALA) requires all hospitals to treat a patient that comes to a hospital emergency room with an emergency condition, until such time as that patient has been stabilized. The hospital may not inquire as to the patient's status or ability to pay until such time as the patient has been stabilized. This results in many hospitals being legally required to provide care to illegal immigrants, which care is often ultimately uncompensated. To help relieve some of the burden on providers, Congress passed Section 1011 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA). Section 1011 provides $250 million per year for fiscal years 2005 through 2008 for payments to eligible providers for emergency health services provided to undocumented aliens and other specified aliens. Two-thirds of this money is allocated to each state in proportion to each state's relative percentage of undocumented aliens, with the final one-third being divided among the Baltimore lawyer Barry F. Rosen, the chairman and chief executive of Gordon, Feinblatt, Rothman, Hoffberger & Hollander LLC, heads that law firm's health care practice group. Jacy D'Aiutolo is assistant counsel at Bon Secours Health System. This article originally appeared in The Daily Record, another Dolan Media newspaper.



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__________________________________ Publisher & Editor-in-Chief Paul E. Fletcher, ext. 16 Executive Editor Deborah Elkins, ext. 21 News Editor Alan Cooper, ext. 19 Associate Editor Brent Baldwin, ext. 24 __________________________________ six states with the largest number of undocumented alien apprehensions. Who is covered? Section 1011 authorizes payment to hospitals, physicians, and ambulance companies that provide uncompensated care to certain aliens. Payment is authorized for care given to undocumented aliens, aliens who have been permitted to enter the United States for the purpose of receiving eligible services, and Mexican citizens permitted to enter the United States under the authority of a biometric machine-readable border crossing identification card. These latter aliens are Mexican citizens who have been allowed to enter certain border zones in California, Arizona, New Mexico and Texas for a period of up to 30 days. Payment is not authorized, and will not be made, for care given to foreign nationals possessing a non-immigrant visa. Which services? The Centers for Medicare and Medicaid Services (CMS) is the federal government agency charged with administering and enforcing Medicare, Medicaid, and EMTALA, among other things. CMS has also been charged with administering Section 1011. CMS has reasoned that, because EMTALA requires hospitals to give care to patients for a certain period, Section 1011 funds will be used to pay for care given during this same period. Thus, a hospital may apply for Section 1011 payment for care given to an alien patient from the time the patient comes to the emergency room until the time the patient is stabilized. Both hospital services and physician services will be covered for this time period. However, should the hospital continue to give care after stabilization, such care will not be eligible for payment under Section 1011. In addition, ambulance services will be covered for all medically necessary transportation of a patient to the first hospital at which the patient is seen. Pre-requisites CMS has taken the position that a provider must seek reimbursement from all available sources prior to requesting Section 1011 payment. These sources would include federal sources, state sources, third-party payers, and direct payment by the patient himself. Once a provider has sought reimbursement from all applicable sources, if the provider remains uncompensated for the care, the provider may request payment under Section 1011. Each provider who wishes to receive Section 1011 payments must submit an enrollment application with CMS. The application can be found at CMS' website, at providers/section1011. Sales Manager Renée Baldwin, ext. 14 Account Executives Sherma Mather, ext. 11 Ken Pearce, ext. 13 Kathy Schneider, ext. 23 __________________________________ Production Manager M. Christine Watson, ext. 22 __________________________________ Office Administrator Sarah Rodriguez, ext. 10 ________________________________________

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March 2005

Virginia Medical Law Report · 5


Defense verdict returned in child's catastrophic injury case

On June 22, 2000, the 2-month-old plaintiff and her parents presented to the emergency department at a Northern Virginia hospital. The infant was evaluated in the triage area and taken to the emergency department. After performing a physical evaluation of the infant, a pediatric emergency medicine physician diagnosed the child with a dysrhythmia called supraventricular tachycardia (i.e. rapid heart rate). The pediatric emergency medicine physician contacted a pediatric cardioloPlaintiffs, the infant and her parents, alleged the pediatric emergency medicine physician and the pediatric cardiologist breached their duty of care by administering Adenosine rather than initiating DC cardioversion. Further, plaintiffs alleged the physicians breached the standard of care by administering inappropriate doses of Adenosine. Plaintiffs also alleged the pediatric cardiologist failed to instruct the pediatric emergency medicine physician to delay treatment until a pediatric cardiologist could be present in the Emergency Department. Finally, plaintiffs alleged the pediatric emergency medicine physician delayed in administering resuscitation efforts. Plaintiffs' claim against the hospital was based upon the theory of ostensible agency. With regard to causation, plaintiffs alleged the Adenosine caused the infant's decompensation and cardiopulmonary arrest. Plaintiffs called an intensivist and an emergency medicine physician to testify against the pediatric emergency medicine physician on the standard of care, two pediatric cardiologists to testify against the pediatric cardiologist on the standard of care and causation. Additionally, plaintiffs called two pediatric neurologists, a life care planner, and an economist to testify regarding damages. The pediatric emergency medicine physician called three pediatric emergency medicine physicians; two testified on the standard of care and one testified on causation. The pediatric cardiologist called two pediatric cardiologists to testify on the standard of care. Additionally, one of the pediatric cardiologists testified on causation. The standard of care experts testified that the pediatric emergency medicine physician and the pediatric cardiologist, respectively, met the standard of care in all aspects of their care and treatment of the infant. The pediatric emergency medicine physician testified that the conversion caused the infant's collapse. The pediatric cardiology causation expert testified that the infant's decompensation and cardiopulmonary arrest were caused by a Bezold-Jarisch reflex which occurred after the conversion to normal sinus rhythm. Further, the pediatric cardiology causation expert explained that the collapse would have occurred regardless of the method used to convert the supraventricular tachycardia. The jury returned a defense verdict. Type of action: Medical Malpractice Injuries alleged: Catastrophic Neurological Injuries Name of case: Confidential Court: Circuit Court for Fairfax County Tried before: Jury Name of judge: Judge Stanley P. Klein Verdict or Settlement: Verdict Amount: Defense Verdict Date of verdict or settlement: Aug. 30, 2005 Demand: $25,000,000 Highest offer: 0 Most helpful experts: Bertrand A. Ross, MD, pediatric cardiologist, Norfolk; Ronald J. Kanter, MD, pediatric cardiologist, Durham, NC; Christopher L. Case, MD, pediatric emergency medicine, Ft. Worth, TX; James Chamberlain, MD, pediatric emergency medicine, Washington, DC; Gary Fleisher, MD, pediatric emergency medicine, Newton, MA Insurance carrier: Western Litigation Specialists Attorneys for defendants: Richard L. Nagle and Heather N. Ellison, Fairfax; Mark M. Jones and Amy S. Gurgle, McLean; and Brian R. Sanderson and Gary W. Brown, Fairfax. [05-T-58]

Hospital prevails on broken-elbow claim

The plaintiff was an 87-year-old female who was admitted to the defendant hospital for a suspected broken hip. During the course of her admission, she was diagnosed with a fractured right elbow. The plaintiff claimed that the injury occurred while she was being transferred into her bed at the conclusion of a physical therapy session. The physical therapist who was present at the time denied that any injury had occurred. The plaintiff successfully completed an occupational therapy session later that day which the hospital's orthopedic surgery expert had opined she could not have done with a fractured elbow. The hospital did not dispute that the fracture occurred during the course of the plaintiff's admission, but denied that it had been caused by any act or omission on the part of its employees. At the conclusion of the plaintiff's evidence, the court granted the hospital's motion to strike based on its finding that the plaintiff had failed to present sufficient evidence of a causal connection between the alleged negligence and the injury claimed by the plaintiff. Type of action: Medical malpractice Injuries alleged: Fractured Elbow Name of case: Cleveland v. Mary Washington Hospital Court/Case No.: Circuit Court of the City of Fredericksburg/Case No. CL03-92 Tried before: Jury Name of Judge: Hon. J. Warren Stephens (Retired) Special damages: $33,326.93 past medical expenses claimed in discovery; none presented at trial Verdict or settlement: Motion to Strike granted at the conclusion of plaintiff's evidence Date: April 6, 2005 Attorneys for defendant: Carlyle R. Wimbish III and Margaret F. Hardy, Richmond [05-T-39]

gist who was seeing patients in his office to obtain a consultation regarding treatment. The two physicians discussed the infant's stability and the three methods of converting supraventricular tachycardia to normal sinus rhythm: vagal maneuvers, Adenosine, DC cardioversion. The physicians agreed that the appropriate course of treatment was the administration of Adenosine and they agreed on two initial doses. The pediatric emergency medicine physician administered the first dose and then the second dose of Adenosine. The infant did not convert after receiving either the first or the second dose. Accordingly, the pediatric emergency medicine physician once again contacted the pediatric cardiologist by telephone. The physicians discussed the infant's stability and agreed on two additional doses of Adenosine. The infant did not convert after receiving the third dose of Adenosine. After the pediatric emergency medicine physician administered the fourth dose of Adenosine, the supraventricular tachycardia converted to normal sinus rhythm. However, one to two minutes later, the infant went into cardiopulmonary arrest. Resuscitation efforts were initiated, but the infant was without oxygen for approximately 23 minutes. The infant sustained catastrophic neurological injuries.

Doc prevails in med-mal claim arising from cyst removal

Plaintiff was a 47-year-old female who had a 20cm x 20cm x 8cm size cyst that was adhered to her colon and pelvic wall. The cyst contained approximately 1 liter of fluid and was able to be carefully dissected and removed intact from the colon and pelvic wall. The cyst was submitted to pathology to confirm that it was not cancerous. After the cyst was removed the defendant surgeon testified that he carefully examined the entire area with his vision, hands and olfactory senses and saw no problems or leaks from the colon. Unfortunately, the fact that he had conducted the inspection was not specifically dictated in his operative role. The defense argued it was implicit in his description of the dissection and removal of the cyst that he had conducted an inspection. A surgical drain was placed to drain some of the expected and normal fluid from the pelvic wall. Approximately 24 hours post-op, examination of the drain indicated that the patient was draining some feculent matter. An emergency exploratory laporotomy was performed with the assistance of a general surgeon and the colon was again inspected and no perforation could be found. In order to allow that portion of the colon to heal, a temporary diverting colostomy was performed and then successfully taken down three months later. Plaintiff's sole criticism was an alleged failure to inspect and repair the defect. The defense countered that the inspection was done appropriately, that in order to remove that type of cyst without having it burst showed it was an incredibly careful and skillful dissection, that the occult perforation was not visible on either surgery and that the treatment was appropriate. Further, the defense showed that the plaintiff's claimed sciatic nerve damage was simply anatomically unable to be related to the defendant's surgery. The jury returned a verdict in approximately 30 minutes. Type of Action: Medical Malpractice Type of Injuries: Bowel perforation during a surgical removal of a large cyst resulting in temporary colostomy and alleged sciatic pain. Name of Case: Christian v. Rowe Court/Case No.: Circuit Court of City of Richmond Trial Date: June 11, 2005 Judge or Jury: Jury Name of Judge: Judge Melvin D. Hughes, Jr. Special Damages: Claimed pain and suffering for undergoing a second exploratory laparotomy with the insertion of the temporary colostomy and claimed disability since surgery for sciatic nerve symptoms. Awarded/Settled: Defense Verdict Attorney for Defendant: Ronald P. Herbert, Richmond Plaintiff's Experts: Frederick Gonzalez, M.D, standard of care and causation Defendant's Experts: Douglas DiBona, M.D., standard of care and causation Insurance Carrier: Medical Mutual Insurance Company of North Carolina [05-T-43]

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March 2005

Cite this page 3 M.L.R. 22


Doctors prevail in suit by parents of infant who died

The plaintiffs were the parents of and administrators of the estate of an infant, and alleged that their daughter received negligent neonatal care. The plaintiffs specifically alleged that the misplacement of an endotracheal tube ("ETT") caused a pneumothorax that led to a prolonged period of decreased ventilation and oxygenation, which caused permanent irreversible brain damage to the baby. The plaintiffs' daughter was born at 5:44 a.m.on Nov. 14, 2002. The amniotic fluid had been meconium-stained at rupture. The baby was suctioned several times at the perineum "secondary to thick meconium." Cord gases were sent and revealed a pH of 7.152 with a "base excess of ­ 4.2" The APGAR scores were 4 at 1 minute, 5 at 5 minutes and 6 at 10 minutes. The neonatologist described the baby as "apneic, flaccid and pale" and covered with thick meconium-stained fluid. The neonatologist made 4 efforts to tube suction the baby and thick bloody greenish material was suctioned directly from the trachea. On the fifth try, the ETT was taped in place below the cords. The baby was manually ventilated through the ETT. The neonatologist noted bilateral breath sounds and excursions after the ETT was placed. The plaintiffs presented testimony from three expert witnesses: a placental pathologist, an obstetrician, and a neonatologist. Those experts opined: (1) although some hypoxic insult occurred in utero, it was of short duration and not very significant degree; (2) the baby was only moderately acidotic and her APGAR scores were not that severely depressed; (3) the x-ray images taken more than an hour after delivery showed the tip of the ETT in the right mainstem bronchus; (4) that the neonatologist was thus negligent first in placing the ETT incorrectly and second in failing to obtain a chest x-ray sooner; and (5) that the resulting extended period of poor oxygenation and hypoxia caused the baby's poor neurological outcome and ultimate death nearly 21 months after delivery. The defendants presented testimony from five expert witnesses: a placental pathologist, a perinatologist, two neonatologists (one a nationally known expert on Meconium Aspiration Syndrome), and a pediatric neurologist. The defense placental pathologist presented various anatomical artwork and pictures, literature statements, and tissue (both control and case) by photographic slides ­ employing two slide projectors to display for comparison control tissue next to actual case tissue. The placental pathologist identified placental markers of utero-placental malperfusion and insufficiency, and testified regarding the several hours prior to birth that the fetus discharged meconium. Interestingly, the defense placental pathologist displayed statements and photographs that appeared not only in the published works of the pathologist whom the plaintiffs' pathologist acknowledged as his mentor, but also in the works of the plaintiffs' pathologist. The defense neonatology experts testified that: (1) the baby discharged meconium several hours prior to birth and then gasped it into her airway and lungs in-utero ­ the discharge and gasping both resulting from the same hypoxic insult, which caused the discharge and continued, which prompted continued gasping; (2) the tip of the ETT was above the carina (the location where the trachea divides into the bronchi of the lungs) when confirmation x-rays were taken; (3) the right pneumothorax resulted from a "ball-valve phenomenon," which is a well-recognized condition that occurs with moderate meconium aspiration; and (4) that the periods of oxygen desaturation from which the baby suffered were indicative of the fluctuating saturation levels that are typical of the persistent pulmonary hypertension condition from which the neonate suffered, and which is commonly associated with the Meconium Aspiration Syndrome that she possessed. The defense perinatologist countered the plaintiffs' claim of a benign pregnancy, labor, and delivery. The defense pediatric neurologist performed an IME of the infant days before death and testified concerning the relationship between his findings (including absent gag reflex and cortical blindness) and the timing of the neurological insult. Type of Action: Medical malpractice/ wrongful death Injuries Alleged: Cerebral palsy and Death secondary to Hypoxic-Ischemic Encephalopathy Name of Case: Dawson v. Doe Court/Case No.: Circuit Court of City of Fredericksburg/ Case No: #CL03-221 Tried Before: Jury Name of Judge: John W. Scott Jr. Special Damages: $165,889.00 past medical expenses; $1,485.00 funeral expenses Amount: Defense verdict Date of Verdict or Settlement: Feb. 8, 2005 Demand: $1,250,000.00 Highest Offer: None Insurance Carrier: Farmer's Insurance Group of Companies Attorneys for Defendant and City: M. Pierce Rucker and Kenneth T. Roeber, Richmond [05-T-49]

Dental malpractice case ends in defense verdict

The dentist was accused of failing to appropriately assess plaintiff's complaints of pain in her left jaw on Thursday and failing to act on a telephone call on Friday in which plaintiff claimed that she told the dentist of the swelling (a hotly disputed point during trial). On Monday the patient called the dentist's office and reported that she had swelling in her lower jaw. The dentist told her to immediately come to the office after stopping to pick up antibiotics at a pharmacy, which the dentist would order by telephone. The dentist saw the patient later that morning, began a root canal on a lower molar that the dentist suspected to be the source of the problem (dental abscess), and referred the patient directly to an oral surgeon for further care. The oral surgeon performed an incision and drainage but did not obtain much fluid. On Tuesday the oral surgeon felt the patient's condition was improving. Unfortunately, on Wednesday her condition worsened with difficulty breathing. She was admitted to the hospital from her internist's office. The surgeons discovered necrotizing fascitis of the neck and chest. Plaintiff had in excess of $200,000 in medical bills from her long course of recovery. Type of Action: Medical Malpractice Type of Injuries: Failure to diagnose dental infection in molar leading to necrotizing fascitis of neck and chest within a week Name of Case: Punter v. Wolfe Court: County of Albemarle Name of Judge: Paul Peatross Special Damages: Less than $200,000 in medical bills Demand to Settle: $650,000 Asked Jury: Medical bills plus a substantial amount Highest Offer: $50,000, later withdrawn Verdict: Defense verdict Attorney for Plaintiff: Rodney K. Adams, Richmond [05-T-73]

Defense win recorded in dental malpractice case

The plaintiff was a disabled Vietnam veteran who had received his routine dental care at the VA Medical Center. He wanted to have his teeth whitened, which required him to go to a private dentist, and he selected the defendant. Prior to going to the VA in 2001, the plaintiff had received little to no dental care, and had a number of fillings and other problems with his teeth. The defendant advised him that a whitening procedure would not produce the desired cosmetic result and would only be temporary. He therefore recommended crown and bridge work for the plaintiff's upper front teeth, and the plaintiff agreed to go forward with this procedure. During the course of his examination, the defendant noted that the plaintiff had periodontal disease, for which he was being treated at the VA. The plaintiff complained of extreme pain after the work was begun, and later developed a necrotic lesion on the roof of his mouth. The defendant originally tried to treat the plaintiff himself, but ultimately referred him to an oral surgeon, who performed a biopsy that revealed a yeast infection. The plaintiff ultimately had to undergo root canals on two of the teeth that were the subject of the defendant's work. He also complained of chronic pain associated with the work that allegedly limited his ability to eat and caused him to lose a significant amount of weight. The plaintiff's expert contended that the defendant breached the standard of care by beginning crown and bridge work in the face of ongoing periodontal disease, and by failing to work up the necrotic lesion more quickly. He claimed that the defendant's work had aggravated the periodontal disease and would require that the crowns be replaced in the future. The defendant's expert contended that the standard of care not only permitted the crown and bridge work to be performed in the face of periodontal disease, but that this work would in fact be beneficial in limiting the damage from the disease process. He examined the plaintiff prior to trial and found the periodontal disease to be improved and the crowns to be in excellent condition. The jury deliberated for less than 30 minutes before returning a defense verdict. Type of action: Dental Malpractice Injuries alleged: Infection and Tooth Damage Name of case: Jones v. Doe Court/Case No.: Circuit Court of the City of Hampton/Case No. CL04-164 Tried before: Jury Name of Judge: Christopher W. Hutton Special damages: $13,079.12 past medical expenses Verdict or settlement: Verdict Amount: Defense verdict Date of verdict: Aug. 9, 2005 Highest offer: $6,500.00 Most helpful experts: Plaintiff's expert ­ Harold P. Heafner, DDS, Chesapeake Attorney for defendant: Carlyle R. Wimbish III, Richmond [05-T-60]

Ex-DIR insured goes bare at trial, prevails

This case was originally tried to a defense verdict in 2000, but the verdict was reversed and the case remanded because the Court had given a jury instruction that the Supreme Court held to be error. At the time of the first trial and the appeal, the defendant was insured by the Doctors Insurance Reciprocal. When that company went into receivership, the defendant was left to fend for himself, and when his efforts to negotiate a modest settlement using his own funds were rejected, had no choice but to go to trial. The case involved an 18-month-old with Down Syndrome who had been a patient of the defendant pediatrician since birth. The child also had a congenital heart defect which was eventually repaired surgically at MCV. In the post-operative period, he twice developed pericardial effusions that had to be drained. Four days after the child was discharged from the hospital, he began to have problems with vomiting and general fussiness. His mother tried to call MCV, but when she could not get in touch with the surgeon, made an appointment to see the defendant that afternoon. She advised the defendant of the post-op complications that the child had suffered at MCV. The defendant examined the child and found no clinical evidence of pericardial effusion. He diagnosed the child with acute gastritis and recommended treatment for that condition. He also advised the mother to contact the doctors at MCV for further advice. The mother did speak with the surgeon at MCV later that evening, who advised her that the defendant's diagnosis seemed reasonable, but scheduled an echocardiogram for the following morning. About 12 hours after the patient left the defendant's office, he stopped breathing and could not be resuscitated. An autopsy revealed a large pericardial effusion that had caused cardiac tamponade. The plaintiff's experts contended that the defendant did not do enough to rule out potentially life-threatening cardiac complications as the cause of the child's presentation to his office. They alleged that the standard of care required him either to order additional diagnostic tests or to contact the doctors at MCV personally. They further alleged that testing at the time of the office visit would have revealed the effusion in time to treat it and save the patient's life. The defense experts contended that the defendant had acted reasonably, that based on the history and results of his physical exam there was no reason to suspect a pericardial effusion, and that it was appropriate to instruct the mother to contact MCV, since she had more information about the child's overall condition since discharge, and since those doctors could contact the defendant if they needed more information. The defense also called a pediatric cardiologist who testified that based on the way in which the pericardial effusions had developed at MCV, it was more likely than not that no significant effusion existed at the time of the child's visit to the defendant's office. The jury deliberated for approximately one hour before returning a defense verdict. Type of Action: Medical malpractice Injuries Alleged: Wrongful Death of 18-month-old infant Name of Case: Pollins v. Doe Court/Case No.: Circuit Court of the City of Fredericksburg/Case No. CL98-229 Tried Before: Jury Name of Judge: George F. Tidey, Retired Judge Special Damages: $61,108.78 medical expenses; $2,969.76 funeral expenses Verdict or Settlement: Verdict Amount: Defense verdict Date of Verdict: June 9, 2005 Demand: $1,000,000.00 Highest Offer: $25,000.00 Insurance Carrier: None (formerly Doctors Insurance Reciprocal) Defendant's Attorneys: Carlyle R. Wimbish III and Kenneth T. Roeber, Richmond [05-T-36]

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Cite this page 3 M.L.R. 23

March 2005

Virginia Medical Law Report · 7

VERDICTS IN FAVOR OF DOCTORS ­ SEMIANNUAL REVIEW Doctor prevails in failure-to-diagnose case

Mr. Feazell, 56, presented to Dr. Leavell with a several month history of nausea, vomiting, diarrhea and weight loss. Dr. Leavell undertook an extensive work up of the gastrointestinal problem over the next six weeks, including endoscopies, biopsies and a small bowel follow through x-ray series (SBFT). None of the studies strongly suggested a diagnosis. The SBFT showed thickened folds of the bowel. The intestinal biopsy revealed acute and chronic inflammation along with villous atrophy. With no improvement and at the insistence of the patient's wife, Dr. Leavell admitted the decedent to the hospital on Aug. 14, 2000. The abdominal cramps, nausea, vomiting and diarrhea continued. An abdominal CT scan did not reveal any pathology. Dr. Leavell considered the remote possibility that the symptoms could be caused by mesenteric ischemia but decided to order a repeat of the SBFT before an angiogram in light of the abnormality on the previous SBFT. Unfortunately, the interventional radiology fellow at UVa advised that the angiogram would need to be delayed for two days in order for the barium to clear from the bowel. On Aug. 17, Dr. Balaban took over care for the patient with the plan in place for him to be transferred at 7:30 a.m. the following morning to UVa for the angiogram. At 11:00 p.m. the nurse called Dr. Balaban to authorize increasing the pain medication, given as needed, from 25 mg to 50 mg. He was not advised of any changes in the patient's condition. Dr. Balaban examined the patient at 7:00 a.m. and found him to be in the same stable condition as described by the previous physician. The staff at UVa described the patient as stable in their notes and decided to correct a minor coagulation disorder before undertaking the angiogram at 12:20. During the angiogram, reduced flow and blockage of the mesenteric arteries were observed. Surgery later in the day found that almost the entire small bowel was dead. Efforts were made to salvage part of the bowel, but subsequent surgeries were required to remove further necrosis. The patient survived for over two years on intravenous feeding before succumbing to liver failure. Plaintiff contended that Dr. Leavell should have diagnosed acute mesenteric ischemia by the time that the decedent was admitted to the hospital in light of the abdominal pain. The defense countered, using the medical literature, that acute mesenteric ischemia presents as a catastrophic event that is not survived for more then a few hours before shock and death ensue. Chronic mesenteric ischemia classically presents as pain immediately after eating and sufferers loose weight due to a fear of eating over the course of years. None of the literature on mesenteric ischemia discussed nausea, vomiting, and diarrhea as primary symptoms. The defendants reasonably pursued other diagnoses that present with these symptoms such as lymphoma, sprue, or giardia. Plaintiff claimed economic damages over the statutory cap of $1,500,000. The physicians did not consent to settle, and no offers were made. Type of Action: Medical malpractice Type of Injuries: Failure to diagnose mesenteric ischemia after six months of nausea, vomiting, diarrhea and weight loss; angiogram ordered to be done on day of apparent complete occlusion; 2 yr survival on TPN Name of Case: Feazell v. Leavell Court: City of Charlottesville Name of Judge: Judge Harkrader Special Damages: $1 million in economic damages Demand to Settle: $1.2 million (cap) Asked Jury: $3 million Highest Offer: zero Verdict: Defense verdict Attorney for Defendant: Rodney K. Adams, Richmond [05-T-74]

Doctor prevails in suit brought after cancer treatment

The middle-aged female plaintiff was diagnosed with anal carcinoma, and after undergoing a biopsy and excisional surgery to remove the lesion, the cancer returned within a relatively short period of time. A second surgery was performed and a 2 cm cancer with questionable margins was removed. At that point, the treatment options presented to the patient were surgical removal of tissue around the anus with permanent colostomy or chemotherapy and radiation. The patient chose chemotherapy and radiation. The defendant radiation oncologist prepared a treatment plan of between 5400 and 5900 cGy of radiation over a period of four to six weeks, recognizing that some patients require a break from radiation depending on side effects of the radiation to sensitive tissues. Here, the plaintiff received a total of 5940 cGy over a 6 to 9 week period. Prior to beginning the radiation, the plaintiff was told she would probably not be able to have intercourse during radiation and that intercourse after radiation might be uncomfortable. Approximately four months after radiation was completed, the plaintiff and her husband attempted intercourse, but when it was unsuccessful, the couple thought it was caused by the husband, who had had minor dysfunction in the past. The couple tried at least one or more times over the subsequent months, but were again unsuccessful. Approximately 14 months after their first attempt at intercourse, the plaintiff returned to her gynecologist, at the suggestion of her oncologist, and she was diagnosed with "vaginal oblitgeration" or complete stenosis of the vaginal canal. The plaintiff subsequently had two procedures to open her vaginal canal and she was undergoing physical therapy prior to trial (after a brief interruption due to another unrelated cancer in the same area) to determine if she could resume normal intercourse. It was open question at trial as to whether that would ever occur. The plaintiff and her standard of care expert, Dr. Sokol, contended that the defendant should not have prescribed over 5400 cGy of radiation and that the defendant should have offered the plaintiff a vaginal dilator and estrogen cream as a precaution to prevent vaginal stenosis from occurring. According to plaintiff's expert, the vagina is in the radiation field of treatment for anal carcinoma and vaginal stenosis is a known complication for treatment of cervical and uterine cancers. By logical extension, warning and post-radiation preventive treatment for stenosis should have been offered. The defense experts countered that, although the vagina is in the radiation field for treatment, the level of radiation is much less to that area than in cervical cancer, which often requires a radiation implant, as well as external beam radiation. Moreover, the defense experts argued that you can only warn and guard against what the literature warns about as a complication, and the literature was void of any reference to vaginal stenosis as a complication of external beam radiation for treatment of anal carcinoma. A verdict for the defense was obtained after the jury deliberated for less than an hour. Type of action: Medical Malpractice Type of Injuries: Vaginal Stenosis ­ inability to have intercourse Name of Case: Trout v. Maddux, M.D. Court: United States District Court Judge or Jury: Jury Demand Prior to Trial: No demand other than ad damnum Offers: No offers prior to trial Verdict or Settlement: Defense Verdict Defense Experts: Stephen Banks, M.D., Alexandria, radiation oncologist; and Cecilia Boardman, M.D., Medical College of Virginia, gynecological oncologist Defense attorney: Paul M. Kuhnel, Roanoke Plaintiff's experts: Gerald Sokol, M.D., Hudson, Fla., radiation oncologist; Willie Anderson, M.D., University of Virginia Medical Center, gynecological oncologist. [05-T-44]

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8 · Virginia Medical Law Report

March 2005

Cite this page 3 M.L.R. 24


Defense prevails in amputation case

The plaintiff, an elderly nursing home resident, had a toe corn removed by a podiatrist. The surgical wound became infected, and was treated by the podiatrist and the nurses at the nursing home. According to the nursing home records, the infection resolved and the surgical wound healed approximately two months after the corn was removed. The defendant, a family practitioner who was medical director of the nursing home, was the plaintiff's primary care physician. He and his family nurse practitioner evaluated the plaintiff on multiple occasions between April, when the wound was documented as healed, and October, when the nurse practitioner diagnosed the plaintiff with an infection in the same toe. Although there was documentation at various times of a scab or ulcer on the toe, there was no documentation of an infection. After the plaintiff developed the infection, her family took her to see Dr. Jones, who diagnosed her with osteomyelitis and amputated the toe. The plaintiff initially healed from this amputation, but eventually developed further complications that required her to undergo a below knee amputation. The plaintiff initially sued the family practice doctor, the nurse practitioner, the podiatrist and the nursing home. Prior to trial, she settled with the podiatrist and the nursing home. During the trial, the court awarded summary judgment to the nurse practitioner after sustaining her objection to the qualifications of the plaintiff's sole expert on the standard of care. The case therefore went to the jury against the physician and his practice group. The plaintiff's expert contended that the defendant breached the standard of care by failing to examine the plaintiff's toe adequately, by failing to supervise the nurse practitioner in her examination of the plaintiff, and by failing to order treatment for what the expert contended was an infected toe. The defendants' standard of care expert contended that the medical records did not support the existence of an infection before it was diagnosed by the nurse practitioner in October, and that the standard of care did not require the physician to institute any treatment before that time. The defendants' vascular surgery expert testified that the infection and subsequent amputations were the result of severe peripheral vascular disease which were in no way caused by the defendants and could not have been prevented. The jury deliberated for 22 minutes before returning a defense verdict. Type of action: Medical Malpractice Injuries alleged: Below-Knee Amputation Name of case: Winston v. Advanced Family Practice Court/Case No.: Circuit Court of the City of Richmond/Case No. LS-1450 Tried before: Jury Name of Judge: Randall G. Johnson Special damages: Approximately $70,000.00 in past medical expenses Verdict or settlement: Verdict Amount: Defense verdict Date of verdict or settlement: Aug. 31, 2005 Demand: Jury asked to award more than $1,000,000 Highest Offer: None Plaintiff's experts: Jonathan Klein, MD, Fairfax (standard of care and causation); Mark M. Jones, MD, Richmond (treating physician/causation) Attorneys for defendant: Carlyle R. Wimbish III and Margaret F. Hardy, Richmond [05-T-61]

Doctor, PC get motions to strike in baby's death case

Ms. Carter, with support of her mother and sister, contended that she had called Dr. Miller's office over the course of five days to report decreased fetal movement. She alleged that the nurse reassured her that this was normal for a baby moving into the birth canal and to keep her scheduled July 3, 2002, appointment. No evidence was adduced that Dr. Miller was ever aware of the alleged phone calls or their alleged substance. Plaintiff's expert, Robert Dein, MD, of Pennsylvania, opined that appropriate responses, i.e., delivery, would have avoided the fetal demise that was most likely due to an umbilical cord tightly wrapped around the neck. The nurse was absolutely certain that she had not spoken to Ms. Carter. If she had, she would have recorded the conversation in the chart and told the patient to come to the office. Defendants called experts on the standard of care as well as on proximate cause. The defense experts agreed that the fetal demise was a sudden event (a matter of minutes) that would not have been prevented even if the patient had telephoned the OB's office. At the end of plaintiff's case, Judge Markow granted defendants' motion to strike as to the professional corporation because plaintiff did not call any expert on the standard of care for a nurse. The jury deadlocked in its deliberation. After hearing further argument, Judge Markow granted the defendant's motion to strike and granted summary judgment in favor of the physician. Type of Action: Medical malpractice Type of Injuries: Stillbirth; Plaintiff and her family claimed that she called over course of five days to report decreased fetal movement; triage nurse said she did not receive any such calls Name of Case: Carter v. Miller Court: City of Richmond Name of Judge: T.J. Markow Demand to Settle: $300,000 Asked Jury: Substantial Highest Offer: Zero Verdict: Jury deadlocked; Directed verdict for Dr. afterward Attorney for Defendant: Rodney K. Adams, Richmond [05-T-75]

Scope of consent at issue in med-mal case

Plaintiff, a 38-year-old female, was seen by the defendant gynecologist for complaints of pelvic pain and a large fibroid uterus. The defendant advised plaintiff to undergo a total abdominal hysterectomy, as it was likely that the pain was caused by the fibroid. The plaintiff signed a consent form which stated that the surgeon would be performing an abdominal hysterectomy. The consent form also stated that the plaintiff consented to the surgeon performing "techniques which were not originally contemplated during the performance of this procedure." On Feb. 5, 2001, defendant performed the total abdominal hysterectomy and removed the uterus. He also inspected the ovaries and noted that there was endometriosis and adhesions on the left ovary and fallopian tube. He removed the left ovary and left fallopian tube, because endometriosis is known to cause pelvic pain. Several weeks later, the plaintiff continued to experience right-sided abdominal pain. On Aug. 28, 2001, Annette Bicher, MD, a gynecological oncologist, removed the right ovary, which appeared normal on a July 17, 2001 ultrasound and normal during the surgery. There was also no disease finding on the pathology report. The plaintiff was in surgical menopause and placed on hormone replacement treatment. Plaintiff alleged that the defendant removed her left ovary and fallopian tube without her consent; the removal of the left ovary and fallopian tube was unnecessary; it was done negligently, recklessly, and in deviation from the standard of care. She further alleged that due to the defendant's negligence and carelessness, she was caused to suffer great physical, mental, and emotional anguish, past and future medical expenses, symptoms associated with premature menopause, significant loss and enjoyment of life, and lost wages. She presented evidence through herself, her husband, and one expert witness, Annette Bicher, MD, from Northern Virginia. Dr. Bicher testified that consent for surgery must always be in writing, and that it was unnecessary to remove the left ovary and fallopian tube even though the surgeon found endometriosis, which causes pain and adhesions. She also admitted removing a normal ovary, only because the plaintiff had "pointed tenderness." Dr. Bicher also admitted that the plaintiff was not in menopause with the remaining right ovary and that she essentially removed a normal ovary, which placed the plaintiff in menopause. Defendant's experts, John Partridge, MD, and Georganne Long, MD, of Richmond, testified that prior to obtaining a patient's consent for any surgical procedure that is intended to treat pelvic pain, the surgeon must discuss the possibility of one or both of the ovaries being removed during the procedure. The consent form should indicate the procedure that is certain to be accomplished, but the patient must know that the surgeon will be inspecting the other organs for disease and that his findings may warrant extension of the original procedure. In addition, they both testified that the possible findings and treatment does not have to appear on the consent form. Consent must be given: written, oral, implied or presumed. They further testified that the word "techniques," as used in the consent form, meant additional procedures or extension of the original procedure. The plaintiff admitted that the defendant advised her that he would be inspecting the organs while he was performing the surgery; that she had told the defendant she did not want to go into menopause; and that the defendant advised her that she only needed one functioning ovary to avoid surgical menopause. The defendant testified that he advised the plaintiff that there could be other factors contributing to her pelvic pain; that he would inspect the other organs in the pelvic cavity; and if there were problems with the ovaries, he would remove the worse looking one and leave the other for hormone replacement. The jury returned a defense verdict after deliberating for less than 30 minutes. Type of Action: Medical Malpractice Injuries Alleged: Loss of ovary and fallopian tube; past and future physical, mental, and emotional anguish; past and future medical expenses; permanent hormone replacement; lost wages; and loss of enjoyment of life Name of Case: Confidential Court: Fredericksburg Circuit Court Case No.: CL02-036 Tried Before: Jury Name of Judge: John W. Scott Jr. Insurance Co.: St. Paul Travelers Verdict or Settlement: Verdict Amount: Judgment for defense Verdict Date: July 14, 2005 Defense Attorney: Coreen A. Bromfield, Richmond Lowest Demand: $2,500,00 (ad damnum) [05-T-48]

Surgeon prevails in suit over hemorrhoid diagnosis

Defendant is a general surgeon. The plaintiff presented to defendant's office on June 21, 1995, upon referral from her primary care physician for surgical evaluation of hemorrhoids. Defendant, a general surgeon, recommended surgical excision. Plaintiff did not return to see defendant until June 9, 2000. Again, he diagnosed hemorrhoids and a possible stricture and recommended surgical excision. Surgery was performed on Oct. 21, 2000, and three hemorrhoidal complexes were removed. By Jan. 26, 2001, plaintiff was again complaining of prolapsing hemorrhoids. Defendant surgeon examined her and noted a right-sided hemorrhoid and recommended removal. A second procedure was performed on Feb. 20, 2001, which included excision of a posterior rectal ulcer and partial sphincterotomy for what the defendant determined to be rectal stenosis. As of March 16, 2001, plaintiff again complained that her hemorrhoid appeared to be returning. She was next seen on June 14, 2001, and made similar complaints. The defendant recommended another surgical procedure to remove the hemorrhoid. He performed the third surgical procedure on April 11, 2002, which included removal of a right posterior hemorrhoidal complex with a small left hemorrhoidal complex. On May 30, 2002, plaintiff again complied of the sensation of a prolapsing hemorrhoid. At that time, defendant considered rectal prolapse as the possible cause of her ongoing complaints and referred her to a colorectal surgeon. The colorectal surgeon diagnosed massive rectal prolapse and ultimately performed surgical rectal prolapse repair. Plaintiff claimed that defendant should have diagnosed her rectal prolapse beginning in June 2000 and should never have undertaken the second and third surgical procedures for the misdiagnosed hemorrhoids. Plaintiff also claimed that the defendant did not obtain her consent prior to performing the rectal ulcer excision or the partial sphincterotomy. Plaintiff presented the expert testimony of Dr. Alan Abrams, a colorectal surgeon from New York, who testified that the defendant breached the standard of care by failing to timely diagnose the rectal prolapse and by inappropriately performing unindicated surgical procedures. Dr. Abrams also testified that the defendant did not meet the standard of care with regard to the informed consent discussion. Plaintiff also presented the expert testimony of Dr. Martin Paul, a general surgeon from Washington, DC, from whom plaintiff had sought a second opinion prior to rectal prolapse repair surgery. Dr. Paul also testified that the defendant breached the standard of care. Defendant presented the testimony of a general surgeon that he did not breach the standard of care and the testimony of a leading colorectal surgeon who explained that there was not proximate cause between any of the surgeries performed by the defendant and the injuries alleged. The jury deliberated approximately 90 minutes before returning a verdict in favor of the defendant. Type of Action: Medical negligence Injuries Alleged: Misdiagnosis and unnecessary surgeries, including hemorrhoidectomy and partial sphincterotomy, resulting in permanent injury to the rectum and anus with accompanying bowel incontinence. Name of Case: Confidential Court/Case #: Confidential Tried Before: Judge Name of Judge: Lisa B. Kemler Special Damages: Approximately $11,669 in past medical expenses; Approximately $18,000 in lost wages; Permanent injury Verdict or Settlement: Verdict Amount: Defense Verdict Date: July 29, 2005 Demand: Prior to obtaining service of process, plaintiff demanded $300,000. $20,000 was offered and rejected. No demand was made after service of process was accomplished. Highest Offer: $20,000 prior to service of process upon defendant. Insurance Carrier: NCRIC Attorneys for Defendant: Susan L. Mitchell and Tracey L. Cover, Manassas [05-T-79]

Cite this page 3 M.L.R. 25

March 2005

Virginia Medical Law Report · 9

VERDICTS IN FAVOR OF DOCTORS ­ SEMIANNUAL REVIEW Medical defendants gain verdict in suit by psychiatric patient

Plaintiff, 29, had a long history of depression and had been treated for it by a defendant psychiatrist. Over Labor Day weekend, he attempted suicide with overdoses of heroin on two consecutive nights. His wife and a close friend persuaded him to see the psychiatrist on Tuesday, Sept. 2. Plaintiff was directly Sept. 8. Plaintiff responded well to each treatment and his condition markedly improved. The ECT therapy was discussed with plaintiff and his wife by the nurse leading the ECT team before a consent form was signed on Sept. 5. On Wednesday, Sept. 10, plaintiff requested to be discharged after his third ECT treatment at 7:30 a.m. The defendant psychiatrist agreed with discharge on the condition that plaintiff was to be discharged to his wife at 5:00 p.m., she was to monitor his medication and plaintiff would return for outpatient ECT as scheduled. Throughout the day, plaintiff telephoned his wife and friend regarding his discharge. He also joked with the nursing staff and discussed the logistics for his upcoming outpatient therapy. At 5:40 p.m. plaintiff's friend met plaintiff at the hospital. Wanting to see how plaintiff was really doing, the friend took him to a pub for a few beers. (Plaintiff's toxicologist agreed that would be four or five beers). Plaintiff had been instructed on multiple occasions not to drink alcohol. The friend deemed plaintiff to be doing well and took plaintiff to his house where his wife was waiting. After an interlude at home, plaintiff drove away from his house despite being repeatedly told by his wife that he should not drive. Wife acknowledged that she had been told, in plaintiff's presence, that he should not drive. At 8:50 p.m. plaintiff rearended a stationary SUV. The investigating policeman testified that the collision was a full front-to-rear accident at a "high rate of speed" with no indication of skid marks or efforts to avoid the impact. Plaintiff underwent several abdominal surgeries to repair severe liver and bile duct injuries. He was hospitalized for a month and incurred medical bills in excess of $350,000. Plaintiff's expert contended that the defendant psychiatrists were negligent in 1) administering ECT on three consecutive days; 2) administering ECT while the patient was on Valium, Gabitril and Elavil/Prozac; 3) not appreciating that these two factors may increase the patient's confusion level; 4) not properly assessing the patient before discharge; 5) not properly communicating with the wife and friend to assure that they knew plaintiff should not drive or drink alcohol; 5) discharging the patient to his friend instead of his wife; and 6) not properly instructing plaintiff at the time of discharge that he should not drive for 24 hours and should not consume alcohol. Plaintiff 's expert contended that plaintiff suffered confusion after the ECT which was acutely exacerbated when the patient arrived home to the point that the patient had no personal responsibility for the auto accident. The hospital was dismissed shortly before trial, but its nurses were called as witnesses at trial. Despite the above evidence, the court refused defendants' proffered contributory negligence instruction based on the Supreme Court's decisions. After hearing the evidence, the jury deliberated for less then an hour before returning a verdict in favor of the defendants. Type of Action: Medical malpractice / psychiatry Injuries alleged: Major auto accident leading to severe trauma injuries Name of case: Knight v. St. Mary's Hospital Court/case: County of Henrico Circuit Court; CL04-1198-00 Name of Judge: Catherine Hammond Special damages: $350,000 Verdict or settlement: Verdict Amount: Defense verdict Date of verdict: Nov. 3, 2005 Demand: $1,700,000 Highest offer: Zero Insurance carrier: State Volunteer and The Doctors Company Attorneys for Defendants: Carlyle R. Wimbish III & Margaret F. Hardy, Sands Anderson; and Rodney K. Adams & Donna L. Foster, LeClair Ryan, Richmond [05-T-84]

admitted to the hospital psychiatric unit with a diagnosis of recurrent severe depression. The defendant psychiatrist requested evaluation of plaintiff by the second defendant psychiatrist, for electroconvulsive therapy (ECT) to treat the depression. The second defendant psychiatrist agreed and administered ECT on three consecutive days beginning Monday,

Heart patient suffered stroke after treatment, defense prevails

The plaintiff's decedent was a 69-year-old woman who presented to the emergency room at Mary Washington Hospital suffering from what all parties agreed was a massive heart attack. She had a history of severe, uncontrolled high blood pressure. However, the main reason for this condition was the fact that she had refused to take medication to treat this condition. She was a dietician by training and thought she could control her blood pressure through diet alone. She was wrong. Her initial blood pressure on presentation to the emergency room was 220/145. The defendant cardiologist was paged by the emergency physician and approved the administration of thrombolytic medication to break up the clot that was causing the heart attack. The medication successfully treated the heart attack. Unfortunately, the patient suffered a stroke approximately seven hours later, and eventually died as a result. The plaintiff's expert cardiologist contended that the defendant breached the standard of care by prescribing the thrombolytic to the patient. He testified that the history of severe uncontrolled high blood pressure was an absolute contraindication to the use of thrombolytic therapy. It was his position that the patient should have been taken to the cardiac catheterization lab for angioplasty. He also testified that the thrombolytic caused the patient's stroke. The patient's three adult daughters each testified that the defendant had approached them in the hallway of the hospital and stated that he had made a mistake in his treatment of their mother and that the medication had caused the stroke. The defendant denied making any such statements. The defendant's standard of care expert contended that the high blood pressure was only a relative contraindication to the use of the thrombolytic, and that it was reasonable and appropriate to use that medication under the circumstances of the case, particularly given the fact that the risks associated with thrombolytic therapy had been fully explained to the patient and her husband, both of whom had consented to the use of the medication. He testified that catheterization was not a reasonable option because the cath lab was full at the time the patient presented to the emergency room, and because she was allergic to iodine, which was a component of the contrast dye used in any cath procedure. The defendant's causation expert, a nationally recognized stroke expert, testified that the thrombolytic did not cause the stroke. He gave multiple reasons to support his opinions, which were supported by medical literature. He testified that the stroke was caused by the stress of the heart attack on top of the patient's history of high blood pressure. The jury deliberated for approximately two hours and 45 minutes before returning a defense verdict. Type of action: Medical Malpractice Injuries alleged: Wrongful Death Name of case: Scoon v. Doe Court/Case No.: Circuit Court of the City of Fredericksburg/Case No. CL03-286 Tried before: Jury Name of Judge: Richard D. Taylor, Jr. Special damages: None presented to jury at trial Verdict or settlement: Verdict Amount: Defense verdict Date of verdict or Settlement: Sept. 23, 2005 Demand: $4,000,000 Highest Offer: None Plaintiff's experts: Allen Solomon, MD, Washington, DC (standard of care and causation) Attorneys for defendant: Carlyle R. Wimbish III, and Kenneth T. Roeber, Richmond [05-T-63]

Doctor wins claim over failure to perform exam

Plaintiff, age 75, alleged that the surgeon was negligent in failing to perform a cholangiogram (a radiology examination of the bile ducts) after the surgeon observed a large cystic duct during a gall bladder removal. Plaintiff's expert contended that the large cystic duct put the patient at high risk for having stones in the common bile duct leading to obstruction and leakage of bile into the abdomen. Additionally, plaintiff claimed that the surgeon was negligent because he failed to further investigate for retained stones when the patient complained of pain and had abnormal liver function tests during a late night visit to the emergency room six days after surgery and when the surgeon looked at a CT, ordered by the primary care physician, six weeks later that showed fluid collections in the lung and around the liver. Plaintiff claimed that he was sick for 10 months until he suffered an acute perforation of his common bile duct. A large amount of bile was drained from his abdomen. Three large stones were removed from the duct, and plaintiff's expert claimed they had to have been present at the time of the original surgery. The jury of seven women deliberated for less than an hour. Type of Action: Medical malpractice Type of Injuries: Failure to perform cholangiogram during lap chole and failure to drain and investigate hepatic fluid accumulation post-op leading to a year of miseries and stone Name of Case: Berry v. Challa Court: County of Lancaster Name of Judge: Judge Spruill Demand to Settle: $500,000 Asked Jury: No number mentioned Highest Offer: Zero Verdict: Defense verdict Attorney for Defendant: Rodney K. Adams, Richmond [05-T-77]

10 · Virginia Medical Law Report

March 2005

Cite this page 3 M.L.R. 26


Doctor prevails in suit after knee replacement

The plaintiff was unhappy with the outcome of a left knee arthroplasty performed by the defendant orthopedic surgeon on Aug. 21, 2000. Prior to surgery, x-rays showed the plaintiff suffered from profound degenerative joint disease in the left knee (as well as a loose body) and there was no dispute in the case that the plaintiff was a candidate for knee replacement. The plaintiff went through postop physical therapy and did not progress as expected, complaining of lack of extension and debilitating pain. By the time the defendant last saw the plaintiff, he lacked 30 degrees of full extension. Approximately three years later, after experiencing ongoing pain and lack of mobility in the interim, the plaintiff's knee was revised by another orthopedic surgeon in Johnson City, Tenn., who also served as his standard of care expert. According to the plaintiff's expert, the femoral component was placed too much in flexion (it was tilted downward on x-ray) and should have been perpendicular to the anatomic axis of the femur. Admittedly, the plaintiff 's expert was not familiar with the knee replacement system used by the defendant physician, although most knee replacement systems are quite similar. During the revision procedure, the plaintiff's expert found a significant amount of arthrofibrosis, or scarring, that was the likely cause of most of the plaintiff's pain and some of his lack of mobility. The testimony was that no one knows what causes arthrofibrosis to develop more in one person than another and there was no way for the defendant physician to know the plaintiff was a set-up for it. After the second surgery, the plaintiff, to avoid the development of arthrofibrosis again, was put through aggressive physical therapy, including a continuous passive motion device. The plaintiff's expert conceded that the arthrofibrosis could have caused limitation in flexion, but not in extension. He also contended that his revision surgery corrected the flexion problem with the femoral component. The plaintiff testified that he was very pleased with the outcome from the revision surgery, yet his final degree of extensor lag was 20 degrees, just 10 degrees less than from the first surgery. The medical expense claim was $74,736.75, which included claim for both surgeries, but the court on motion from the defense reduced the plaintiff's claim to costs for the second (revision) surgery. The defense expert, who at the time was the president of the Virginia Orthopedic Society, opined that while the femoral component was not centered at the bulls-eye of the anatomic axis of the plaintiff 's femur, the surgeon nonetheless hit the target, which is within the acceptable range to meet the standard of care. More importantly, Dr. Moskal opined that it was the arthrofibrosis, not the placement of the femoral component, that caused the plaintiff's lack of mobility and pain. If the arthrofibrosis did not develop, the plaintiff would have had an otherwise acceptable outcome. The defense expert also criticized the plaintiff's expert for replacing the tibial component during the revision surgery when that component appeared to be installed correctly. Type of action: Medical Malpractice Injuries alleged: Left knee replacement leading to lack of mobility and need for revision surgery Name of case: Lawson v. McGarry, M.D. Court/Case #: Washington County Circuit Court ­ At Law No. CL02-256 Verdict or settlement: Verdict Amount: Defense verdict Tried before: Jury Name of Judge: Larry Kirksey Date of verdict or settlement: September 19, 2005 Attorney for defendant: Paul C. Kuhnel, Roanoke Plaintiff's expert: Calvin Johnson, M.D., Johnson City, TN Defendant's expert: Joseph Moskal, M.D., Roanoke [05-T-66]

Suit over alleged failure to warn of impotence unsuccessful

Plaintiff, 41, suffered from familial adenomatous polyposis. After a colon resection in 1982, he continued to suffer polyps in the remaining rectal tissue. The colon-rectal surgeon recommended an ileol pouch-anal anastomosis during a visit on Sug. 14, 2000. The patient returned for further discussions on Nov. 20, 2000, and Feb. 26, 2001, with his wife. Plaintiff alleged that the surgeon failed to adequately advise plaintiff of the risk of impotence and retrograde ejaculation. The parties all agreed that impotence had been mentioned, but that the surgeon had said that the risk was only 1 to 2 percent. The surgeon always tells his patients that the risk is 3 to 4 percent. Retrograde ejaculation was not specifically discussed. Plaintiff conceded in cross examination that he understood impotence to mean that he could not have children. Plaintiff's expert, not a colorectal surgeon, contended that the risk of impotence was closer to 10 percent. Plaintiff said that if he knew the risk was that high he would have delayed surgery to father children. Defendants' colorectal surgery experts cited the published literature showing that the risk was between 1 and 2 percent. Defendants also called a urologist who testified that if plaintiff wanted to have children, simple procedures could make that happen. The urologist also recommended further evaluation for treatment of the alleged impotence. Type of Action: Medical malpractice Type of Injuries: Removal of rectum and reconstructive surgery due to risk of colon cancer from FAP; alleged lack of informed consent re risk of impotence and retrograde ejaculation that occurred Name of Case: Myers v. Ramirez Court: City of Portsmouth Name of Judge: Judge Morrison Demand to Settle: $1 million (cap) Asked Jury: No number mentioned Highest Offer: Zero Verdict: Defense verdict Attorney for Defendant: Rodney K. Adams, Richmond [05-T-76]


Doctor wins first trial held in high-tech courtroom in Fairfax

The case involved an allegation of negligent management of a patient presenting to an emergency department in atrial fibrillation and rapid ventricular response, with a history that included a syncopal episode after the patient awoke with left-sided chest discomfort and went to the bathroom. Based upon the history that was related to the physician as well as the pertinent positive and negative findings on examination, the treating emergency physician worked the patient up for stroke prophylaxis and acute coronary syndrome ­ including ordering the anti-coagulant Heparin. Nearly three hours later, the patient began to display neurologic deficits. A stat head CT was positive for two intracerebral hemorrhages, which ultimately resulted in severe and permanent disability to the patient. The plaintiff's theory was: (1) he had suffered a minor traumatic brain injury, including a possible microvascular hemorrhage or contusion, which developed into a large ICH as a result of the allegedly negligent administration of Heparin without first clearing him with a head CT; and (2) his cardiac condition did not require urgent anti-coagulation. Several medical records, including CT scans, were scanned into an electronic format so that they could be displayed in sequence using a computer. Certain images had portions graphically highlighted and certain CT scan images were either enlarged or repositioned for comparison. Defense counsel also appreciated that active graphic images with cutaways would help the jury understand a number of the medical issues, including x-ray and CT evidence of intracerebral bleeds due to traumatic injury; atrial fibrillation and resultant clot formation, and Heparin prophylaxis for acute coronary syndrome. They contacted Archie MD Legal Graphics, of Miami Beach, Fla., which worked with them and their experts to create two 3-dimensional graphic "movies" using their virtual patient, "Archie." The movies helped explain the concepts using a mixture of animation, actual CT images from other patients, and labeling. The trial began in a "standard" courtroom in Fairfax County. However, the final day of trial took place in Courtroom 5-E, the court's most technologically advanced courtroom. That courtroom has a universal interface for laptop computers, large plasma monitors located on the walls, and monitors located throughout the jury box, at counsel tables, and in the witness box. The monitor at the witness box employs a touch-screen so that witnesses may draw on images as they are being shown (e.g., John Madden drawing on a football replay screen). The technology was used with each of the three expert witnesses who testified for the defense on the last day ­ to display CT images and the two 3-D movies ­ as well as in closing arguments on behalf of the defense. After slightly more than three hours of deliberation, the jury returned a verdict in favor of the defendant. This case was significant because it marked the first time that Archie MD 3-D graphic movies were shown to a jury in Virginia, and the first time that the Courtroom 5-E media enhancements were used by actual litigants. Type of Action: Medical malpractice Injuries Alleged: Intracerebral Hemor-rhage Name of Case: Mallinson v. Doe Court/Case No.: Circuit Court of Fairfax County/Case No: 221458 Tried Before: Jury Name of Judge: Leslie M. Alden Special Damages: $144,000.00 past medical expenses; $45,000.00 past lost wages; and between $252,318.00 and $315,397.00 present value of future lost household services Verdict or Settlement: Defense verdict Date of Verdict or Settlement: April 7, 2005 Demand: $1,100,000.00 Highest Offer: None Insurance Carrier: Columbia Casualty Insurance Company Attorneys for Defendant: M. Pierce Rucker and Kenneth T. Roeber, Richmond [05-T-50]

Cite this page 3 M.L.R. 27

March 2005

Virginia Medical Law Report · 11


Jury returns $3 million for brain injury

Plaintiff Jean M. Wood and defendant George Young were involved in a motor vehicle collision on July 20, 1999, when defendant negligently made a left turn in front of plaintiff. Plaintiff, then 41, was driving a Pontiac Grand Am at 40 mph when she struck Defendant's Ford F700 dump truck weighing 26,000 pounds. At the time of the collision, defendant was an employee of S.C. Jones, Inc., and was engaged in the performance of his job duties. Defendant pleaded guilty to failure to yield the right of way in traffic court but denied liability during the civil trial and contended that plaintiff's neglitraumatic brain injury, specifically, in the left frontal lobe which controls language, short term memory, judgment, and motor function including fine movements and strength of the arms, hands and fingers. Over the course of the next few years, plaintiff received treatment for her brain injury from Dr. Gregory O'Shanick, a neuropsychiatrist, Dr. Lynn Warner, a licensed clinical psychologist with a specialty in neuropsychology, Dr. Maria Raciti, a licensed clinical psychologist specializing in brain injury. While a CT scan, EEG, Brain SPECT, and an early MRI of the brain came back normal, a MRI taken from a Tesla 3.0 on Aug. 16, 2005 revealed a small single area of increased signal intensity in the white matter of the left frontal lobe of plaintiff's brain. Dr. O'Shanick, the clinician, and Dr. Washburn, a radiologist, testified that the lesion was consistent with trauma and was evidence of the repairative process taking place after an injury. Both of plaintiff's daughters testified to what plaintiff was like before the accident and how much she had changed, physically and mentally, after the accident. Defendants argued that there was no objective evidence of a brain injury. Dr. John W. Cochran, a neurologist from Alexandria, testified for the defense that plaintiff did not suffer any brain injury whatsoever. Additionally, defense expert Douglas Phillips, a neuroradiologist at UVa, testified that the lesion shown on the Aug. 16, 2005 MRI was not caused by trauma but is commonly found in individuals over 40 years old. Defendants further argued that the fact that plaintiff worked for four years after the accident, that she was able to drive long distances by herself, and that she received excellent performance evaluations at work was evidence that she did not suffer a brain injury. As a result of the collision, plaintiff further suffers from post-traumatic stress disorder which has caused nightmares and impaired her ability to function in social and family life. Treating healthcare providers testified to the depression and grief caused by plaintiff's awareness of the loss of her abilities and by damage to brain cells on the left front side of brain. In addition to her brain injury and PTSD, plaintiff suffered permanent injury to both knees as a result of the accident. Her treating orthopaedic physician, Dr. John W. Aldridge, testified that plaintiff's knee injuries were the result of the accident and that both knees need to be replaced. Defendants' orthopaedic expert testified that plaintiff's deteriorating knees were the result of normal wear and tear. Further, plain- GRAPHIC USED BY PLAINTIFF'S TEAM tiff's neck, back, and Special Damages: $102,522 past shoulders have been permanently medical bills, $858,000 future lost injured as well. As a result, she has been limited in every aspect of her life. She is wages, $4,507.04 lost wages; future medin constant pain and is scheduled for icals and life care plan Verdict/Settlement: Verdict future left shoulder surgery. Defendants Amount: $3 million denied that these injuries even existed. Lowest Demand: $750,000 As a result of the collision, plaintiff Highest Offer: $300,000 prior to was out of work from July 21, 1999 trial; $500,000 after closing arguments through Dec. 25, 1999 with lost wages of $4,507.04. Plaintiff returned to work but but before verdict Experts: Dr. Gregory O'Shanick, was ultimately taken out of work by her neuropsychiatrist; Dr. Lynn Warner, physicians in January 2004 and has not worked since. Treating doctors agree licensed clinical psychologist; Dr. Maria that plaintiff cannot work again and is Raciti, licensed clinical psychologist; Dr. disabled. Her future lost wages begin- Ronald Washburn, radiologist; Dr. ning from January 2004 until age 67 Robert Voogt, Ph.D., CRC; Charles DeMark, Vocational Rehabilitation amounted to $858,000.00. Specialist; Alan Michaelis, Alcar, Inc., Type Case: Civil - Negligence multimedia presentation. Case Name: Wood v. S.C. Jones Inc. Insurance Co.: Transportation and Young Insurance Co. (subsidiary of CNA Court: Hampton Circuit Court Insurance Co.) Case No.: CL01-576 Plaintiff's Attorneys: Carlton F. Injuries: Mild traumatic brain injury, Bennett and Catherine MacLean Six, post concussion syndrome, posttraumatVirginia Beach ic stress syndrome, knees, shoulder, neck, and back. Tried before: Jury trial Judge: Wilford Taylor Jr.

gence caused the collision. Following the accident, plaintiff immediately complained of back, neck, and shoulder pain. A witness at the scene described plaintiff as confused and dazed. Plaintiff testified to a brief period of memory loss at the scene as well as being able to hear people talk, but not being able to respond. Plaintiff was transported from the scene via ambulance to the emergency room. ER doctors did not diagnose a brain injury, but found that plaintiff's Glascow Coma score was normal (15/15), pupils were normal, and plaintiff was alert and oriented. Within a couple of days, plaintiff began experiencing pain in her knees as a result of hitting her knees on the dashboard. She also had multiple symptoms of brain injury, including headaches, dizziness, memory loss, nausea, difficulty with concentration, inability to communicate thoughts, balance problems, dropping things, fatigue, anxiety, and depression. A bruise on the top of plaintiff's head developed as a result of plaintiff striking her head on the car roof during the accident. Plaintiff was diagnosed with a mild

$3.4M awarded for death of dentist after taking medication

Plaintiff's decedent was a 43-year-old dentist, married and mother of three children ­ 10, six and four years old. She had sought treatment from the defendant for emotional difficulties. Plaintiff alleged that the defendant misdiagnosed plaintiff's decedent as suffering from Bipolar II Disorder, when in fact she had Post Traumatic Stress Disorder. Plaintiff alleged that the defendant's prescription of Lamictal to treat plaintiff's decedent's Bipolar II disorder was negligent, given the fact that the plaintiff's decedent did not have a bipolar disorder and that Lamictal was not a first-line treatment for Bipolar II disorders. Finally, plaintiff alleged that defendant failed to obtain plaintiff's decedent's informed consent concerning the use of Lamictal, specifically failing to advise plaintiff's decedent that Lamictal had a risk of a hypersensitivity reaction that could progress to death when other types of medications carried no such risk. Plaintiff's decedent developed a hypersensitivity reaction within five weeks of taking Lamictal and ultimately died from complications from that reaction. Of Note: Plaintiff submitted Request for Admissions to defendant asking defendant to admit that Lamictal caused plaintiff's decedent's death. Defendant denied those admissions. However, at deposition and again at trial, defendant's sole causation expert admitted plaintiff's decedent would not have died if she had not taken the Lamictal. On post-trial motion, the court awarded plaintiff $22,079.40 under Rule 4:12(c) for costs and attorney's fees associated with providing plaintiff's causation theory. Type of Action: Medical Malpractice Type of Injuries: Wrongful death due to the misdiagnosis of bipolar disorder, prescription of Lamictal therefore and development of Stevens-Johnson Syndrome Name of Case: Muss, Executor of the Estate of Elizabeth L. Muss, Deceased vs. Cynthia Goldstein Cohen, M.D. Court: Circuit Court for Fairfax County, Virginia Awarded or Settled: Awarded Verdict: $3,008,000.00, plus interest back to 4/18/03 for a total verdict of $3,482,192.50. The amount was reduced to a statutory cap of $1,650,000.00 Attorneys for Plaintiff: Michael J. Shevlin and Brian C. Shevlin, Arlington Defendants' Experts: Paul E. Keck, Jr., M.D. ­ Psychiatrist, University of Cincinnati College of Medicine, Cincinnati, Ohio; Thomas N. Wise, M.D. ­ Psychiatrist, Falls Church; Chester W. Schmidt, M.D. ­ Psychiatrist, Johns Hopkins Hospital, Baltimore, Md.; Robert S. Stern, M.D. ­ Dermatologist, Brookline, Mass. [05-T-55]

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12 · Virginia Medical Law Report

March 2005

Cite this page 3 M.L.R. 28


Shoulder injury during delivery nets $650K verdict

Shoulder dystocia was encountered in the term delivery of 7 lbs 6 oz male. This was mismanaged by the obstetrician who applied excessive traction and excessive angulation of head-to-shoulder angle as she twisted and pulled on fetus over period of 50 seconds before the dystocia/obstruction was relieved. There was no fetal distress present which arguably might shorten the ample time available for measured management of the dystocia. The physician had no memory of the delivery and neither did the labor and delivery nurses but the father had made a video of the birth. Neither the dystocia nor the obvious paralysis of the right arm were noted by the obstetrician or the L&D staff in the birth records. Over plaintiff's objection, the judge made a pretrial ruling that the video could not be viewed by the jury but the experts could comment on it and use it as part of the basis of their opinions. The infant has full use of his hand but has a permanent deformity characterized by inward rotation of the upper arm and elbow and winging of the shoulder blade. He was almost 5 years old at time of trial and can expect about another year of physical and/or occupational therapy. Medical expenses have been paid by collateral sources. He was just briefly introduced to the jury but did not disrobe or demonstrate limitations; photographs were used instead and utilized by the mother and expert witnesses, including some of the therapists. No surgery was recommended or appropriate. The plaintiff agreed not to have judgment entered on the verdict and the parties agreed to a structured settlement with a present value (upfront cash and purchase of structured annuities) of $650,000. Type of Action: Medical malpractice Injuries Alleged: Brachial plexus; Erb's palsy Name of Case: Blakey v. Anonymous MD Court: Norfolk Circuit Court Case No.: CL04-346 Tried Before: Jury Name of Judge: John C. Morrison Jr. Special Damages: $38,694 medicals ($32,894 past & $5,760 future) paid by collateral sources Verdict/Settlement: Verdict Amount: $650,000 (5-year-old infant $400,000 and mother $250,000) Verdict Date: Sept. 15, 2005 Demand: Not applicable as defendant obstetrician would not consent to settle Experts: Robert A. Dein, MD, OB/GYN, Rosemont, Pa., standard of care and causation; Ralph S. Northam, MD, Pediatric Neurology, Norfolk, treating & causation. Plaintiff's Attorneys: Robert E. Brown and Guy E. Daugherty, Norfolk [05-T-71]

Med-mal plaintiff wins $1.5M verdict

Plaintiff sustained anoxic brain injury during ICD implantation procedure in February 2002. After the device was placed, plaintiff was administered 50mg Brevital for deep sedation in order to test the device. Defendant cardiologist had been trained and certified in deep sedation anesthesiology and was responsible for administration and monitoring of patient during deep sedation; an electrophysiologist was implanting the ICD. Testing was uneventful. During the procedure the oxygen saturation levels dropped and following the testing the electrophysiologist noted that plaintiff was not breathing properly. At some time after the device was implanted and before patient was intubated, defendant had left the procedure room and was in the monitoring room when he was called back to the patient. Plaintiff's expert was an anesthesiologist who testified as to the standard of care for monitoring during deep sedation. Plaintiff's expert testified that the injury was caused by failure to manage the airway and assist the breathing of the sedated patient. Defendant alleged that plaintiff's injuries were due to cardiac stunning secondary to the ICD testing causing pulseless electrical activity. The dollar amounts of plaintiff's medical bills and life care plan were stipulated by the parties. Type of Action: Medical malpractice Injuries Alleged: Hypoxic brain injury Name of Case: Carter v. Ravindra, M.D. Court: Richmond Circuit Court Case No.: LS-2919-3 Tried Before: Jury Name of Judge: T.J. Markow Special Damages: Medical bills: $116,455 and life care plan, present value $605,210 Verdict/Settlement: Verdict Amount: $1.5 million Verdict Date: Nov. 16, 2005 Plaintiff Attorney: Thomas W. Williamson Jr., Richmond [05-T-86]

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