Professional Documents
Culture Documents
Docs recovery
is reduced for
unclean hands
A doctors long-running dispute with a consultant hired
to help him buy a medical
practice turned into a battle
of the experts, as the doctor finally got to try his claim
for damages in Alexandria
federal court.
MAY 2016
Staff infection:
Patient claims
medical worker
spread illness
By Deborah Elkins
The case
had
twice
been
sent
back
from
the 4th U.S.
Circuit Court
of Appeals,
since it was
first filed in
2011.
Last
June,
the
federal
ap- JUDGE CACHERIS
peals court
reversed judgment for the consultant hired by the plaintiff,
Dr. Petr Bocek, and ordered the
Alexandria court to enter judgment finding the consultant liable for breach of a duty of loyalty
to his former client.
At his December trial on damages, Bocek asked the court to
impose a constructive trust on the
assets of the Allergy Care Centers
Practice and to award him compensatory and punitive damages,
as well as attorneys fees.
Boceks expert valued the allergy practice at $2.2 million in
2011 and said the doctor lost between $1.2 and $1.3 million by
By Deborah Elkins
Challenge to balance
billing hits hospital
By Peter Vieth
For what may be the first time in
Virginia, a judge has ordered a
hospital to slash its balance billing charges by 75 percent to reflect the hospitals usual write-off
for uninsured patients.
The decision is a rare judicial rebuke
to the common hospital practice of billing full rate for patients whose insurance
plans do not have reimbursement agreements with the hospital.
The judge said a contract signed by a distraught emergency room patient was invalid and he chided the hospital for treating
its list of charges as double secret.
Surprise bill
INSIDE
Handling patient
records in bankruptcy
Page 4
OVERLOADED?
Jail time
e f fe c t i ve d e fe n s e
me d ic a l ma lp ra c t ice
Tracy Bumba
__________________________________
Established 2004
Statewide General Circulation
Published Bimonthly
Phone number: 8047830770
1800456LAWS
Richmond, VA 23219
2016 Virginia Lawyers Media,
All Rights Reserved
Table of Contents:
3 Suit claimed doctor lied about wrong-leg
surgery
recharge
Matthew L. Curtis
Colleen M. Gentile
Ruth Griggs
L. Thompson Tom Hanes
Ian Lambeets
Joel M. McCray
Kenneth T. Roeber
Katherine C. Skilling
Michelle L. Warden
Carlyle R. Randy Wimbish, III
The lab results were positive for staphylococcus aureus in the patients bloodstream, establishing the emergency
medical condition of staph aureus septicemia. The patient required hospitalization and long-term intravenous antibiotic
treatment, Feinman said.
An emergency department nurse received the lab report, but never advised
a doctor. The hospital never contacted the
patient to tell her she had a bloodstream
infection.
The patient returned and saw the same
doctor 17 days later. She had not received
any treatment for the blood infection in
the interim.
While waiting for the doctor to start
her on IV antibiotics, the patient had a
stroke from a clot released by an erratic
heartbeat caused by the infection, Feinman said. She was partially paralyzed
Congratulations
J. Jonathan Schraub
and Paige Levy Smith
J. Jonathan Schraub
Million-Dollar Med-Mal
Defense Verdicts of 2015
Wrong leg |
$5 million
Plaintiff claimed cardiologist failed to
diagnose impending heart failure
Injuries alleged: Congestive heart failure, hospitalization and stroke
Court: Roanoke Circuit Court
Defense attorneys: Kathleen M. McCauley and Susan L. Kimble,
Richmond
In 2002, plaintiff was diagnosed with cardiomyopathy,
likely viral, and ventricular tachycardia. Echocardiography indicated severe disease. An AICD was placed, and
plaintiff was prescribed medications. A repeat echocardiogram in 2004 showed no improvement, and plaintiff
followed up with the defendant cardiologist approximately every six months between 2002 and 2008.
Beginning in July 2008, plaintiff reported increased
stress at work. In August, he began seeing a general surgeon for epigastric discomfort. Plaintiff visited
the emergency
department on
Sept. 19, 2008,
complaining of
a brief episode
of chest pain.
A chest CT was
negative for pulmonary emboli.
Several days
later,
plaintiff
KIMBLE
followed up with McCAULEY
his last visit to
the cardiologist. Plaintiff was admitted to the hospital
on Oct. 13 with complaints of abdominal pain and shortness of breath. On the third hospital day, plaintiff was
diagnosed with congestive heart failure. He suffered
an embolic stroke on the seventh hospital day. In 2012,
plaintiff underwent heart transplant.
Plaintiff alleged that the defendant cardiologist failed
to appropriately monitor and control his blood pressure,
failed to order serial echocardiograms and failed to diagnose impending congestive heart failure, beginning
in July 2008. Plaintiff further alleged that due to the
cardiologists negligence, he required hospitalization for
congestive heart failure and suffered a stroke.
The jury deliberated for two hours and 20 minutes
and returned a defense verdict.
$5 million
Plaintiff claims spinal surgeons
posterior approach caused paraplegia
Injuries alleged: Paraplegia following back surgery
Court: Fredericksburg Circuit Court
Defense attorneys: Byron J. Mitchell and Coreen A. Silverman,
Fredericksburg
Plaintiff, 86, presented to the defendant orthopedic
spine
surgeon
in January 2013
with complaints
of gait difficulties and imbalance.
MRIs
revealed
stenosis due to an
extremely rare
condition: ossification of the posterior longitudiMITCHELL
SILVERMAN
nal ligament. In
OPLL, the posterior ligament running vertically along the front of the
spine becomes calcified, causing lower leg symptoms. After a neck operation that was an unsuccessful attempt to
relieve her symptoms, the defendant eight months later operated on plaintiffs thoracic spine. The defendant
used a posterior-lateral approach to remove the bony
elements in the back of her spine and then removed a
small portion of the ossified ligament, which he could
access. When the patient awoke in the recovery room,
she was paraplegic, and remains so.
Plaintiff sued her spine surgeon, claiming that the
defendant should have approached the OPLL from the
front or side, and because of his faulty posterior approach and shoddy technique, he manipulated the spinal
cord at surgery and caused her paralysis, The defense
theme was that defendant elected a reasonable, less invasive posterior-lateral approach. Defendant also denied
touching the spinal cord and claimed that the post-op
imaging was not conclusive as to the cause of injury.
METHODOLOGY
After four-and-a-half days of evidence, the jury deliberated for about five hours before returning a defense verdict.
$4,324,904
Man died of staph infection after
suffering injuries in ATV crash
Injuries alleged: Wrongful death
Court: Prince Edward County Circuit Court
Defense attorneys: Carlyle R. Wimbish III and Ruth T. Griggs, Richmond
Plaintiff, 59, was in an ATV rollover accident. At discharge, decedent
was instructed
to follow up with
his primary care
physician in one
week.
On May 4,
decedent
saw
his family doctor,
Dr. Hall, who referred him to Dr.
Donkor for posWIMBISH
GRIGGS
sible drainage of
left hemothorax.
Dr. Donkor saw decedent later that same day and recommended a course of treatment; decedent wanted these
treatments administered and monitored by Dr. Hall.
On May 7, decedent was transported by ambulance to
the emergency room. Although the treating emergency
physician thought the vital signs and lab results strongly suggested an infection, he did not order antibiotics.
Rather, he transferred the decedent to VCU. A blood culture indicated a staph aureus, but he did not report this
result. Decedent remained at VCU until May 11, when
he died of an untreated infection.
Dr. Donkor was the only physician sued by the decedents estate. The plaintiffs experts contended that Dr.
Donkor breached the standard of care by not admitting
the decedent to the hospital from his office on May 4. Dr.
Donkor presented the testimony of a pulmonologist, who
testified that the standard of care did not require him to
admit the decedent to the hospital that day.
The jury deliberated for approximately one hour before returning a defense verdict.
$3,500,000
Laparoscopic prostatectomy was
complicated by bowel injury
Injuries alleged: Bowel perforation and injury leading to subsequent
surgeries
Defense attorneys: Sean P. Byrne and Meredith M. Brebner, Glen Allen
Plaintiff, 59, was a minister. He was diagnosed with
prostate cancer. Plaintiffs treating urologist discussed
treatment options with the patient, who opted to explore
surgical treatment. He was referred to the defendant
urologist, who was experienced in performing robotic-assisted laparoscopic prostatectomies.
Plaintiff underwent such an operation in January
2013. During surgery, the defendant urologist recognized and repaired a bowel perforation likely caused by
the initial trocar insertion. After the initial surgery, the
The survey of Virginias Million-Dollar Med Mal Defense Verdicts survey is compiled from the
Verdict & Settlement Reports published by our sister newspaper, Virginia Lawyers Weekly.
In each of these cases, the amount the plaintiff sued for, or the final demand for settlement, was at
least $1 million. The recover in each was the same zero, since the defense prevailed. The size of
the verdict is based on the value of the demand.
To qualify, a verdict must have been returned by a jury in 2015.
The 2015 survey features 26 verdicts.
Got Feedback?
Send an email to:
editor@valawyersmedia.com
$3,100,000
Hospital patient died from complications
of sickle cell disease
Injuries alleged: Wrongful death
Court: Arlington County Circuit Court
Defense attorneys: Susan L. Mitchell, Matthew D. Banks and Judd P.
Altman, Fairfax
$3 million
Patient with history of sleep apnea died
during surgical recovery
MITCHELL
BANKS
ALTMAN
MITCHELL
KEMP
The
decedent, 63, underwent a five-hour
back surgery on
March 23, 2009,
at Inova Fairfax
Hospital.
Her
medical history
was significant
for obesity, severe obstructive
sleep apnea, re-
Ronald P. Herbert
rherbert@herbertsatterwhite.com
Direct Dial: (804) 554-1803
Kimberly A. Satterwhite
Sandra Morris Douglas
ksatterwhite@herbertsatterwhite.com sdouglas@herbertsatterwhite.com
Direct Dial: (804) 554-1802
Direct Dial: (804) 554-1813
Todd D. Anderson
tanderson@herbertsatterwhite.com
Direct Dial: (804) 554-1810
Herbert & Satterwhite, P.C. 1800 Bayberry Court Suite 302 Richmond, Virginia 23226 (o) 804-554-1800 (f ) 804-554-1801
$3 million
Infant had no long-term deficits from
placental disruption
Injuries alleged: Placental disruption during Caesarean section
Court: Norfolk Circuit Court
Defense attorneys: Kimberly A. Satterwhite and Sandra Morris Holleran,
Richmond
Plaintiff, age 38, underwent an elective Caesarean
section on Nov. 13, 2009. Her prenatal course had been
complicated by gestational diabetes and concern regard-
Got Feedback?
Send an email to:
editor@valawyersmedia.com
$3 million
Patient fainted and struck his head after
getting an X-ray
Injuries alleged: After falling, plaintiff developed a large brain
hemorrhage
Court: Arlington Circuit Court
Defense attorneys: Byron J. Mitchell and Kristina L. Lewis,
Fredericksburg
The
plaintiff, an active
52-year-old and a
high-earning tax
attorney
with
the IRS, fell off
his bicycle as he
rode home from
work,
striking
his left shoulder.
He walked his
MITCHELL
LEWIS
bike home, showered and then he
and his wife went to the Virginia Hospital Center ER.
He denied hitting his head to the triage nurse.
The defendant physicians assistant evaluated the
plaintiff and ordered X-rays, which revealed a collapsed
lung and several fractures. After examining the plaintiff,
the pulmonologist recommended a repeat chest X-ray to
see if the pneumothorax had enlarged. Immediately after the repeat chest X-ray, while standing, the plaintiff
exclaimed, It hurts, fainted and struck his head on the
floor. A code was called. Plaintiff underwent life-saving
brain surgery at 2:00 a.m. to relieve a large intracranial
bleed. He suffered through 11 months of rehabilitation
before returning to work.
Plaintiff sued the PA and ER physician, alleging that
$3 million
Diabetic lost full use of hand after mole
removal surgery
$3 million
BYRNE
BREBNER
DONNELLY
Got Feedback?
Send an email to:
editor@valawyersmedia.com
RICHMOND
804.346.0600
CHARLOTTESVILLE
434.817.2180
NORFOLK
757.625.1400
$2,500,000
Injuries alleged: Pain and suffering due to alleged negligence in diagnosis and treatment
Got Feedback?
The plaintiff,
48, was a cabinet finisher. He
previously underwent triple
bypass surgery.
During routine
follow-up after
the bypass surgery, plaintiff s
treating cardiolBYRNE
PETERSON
ogist diagnosed
an atrial septal
defect a hole in the atrial septum. The cardiologist referred plaintiff to the defendant interventional cardiologist, who had experience treating these
defects. The defendant physician sought to close the
hole with device known as an atrial septal occlude.
During the closure procedure, the device slipped out
of place, ultimately requiring open-heart surgery to
retrieve the occluder and close the defect.
Following open-heart surgery to remove the device,
the plaintiff had an embolic stroke, which he attributed
to the ASO blocking the left ventricular outflow tract.
The plaintiff s expert in essence opined that the
device must have been too small, causing it to embolize. The opposing experts offered conflicting theories
and analysis of the measurement of the size of the
device and the reasons why the device came out of
$2,200,000
Child with sleep apnea died of cardiac
arrhythmia after surgery
Injuries alleged: Wrongful death
Court: Fairfax County Circuit Court
Defense attorneys: Richard L. Nagle and James N. Knaack, Fairfax
Plaintiff s
decedent,
a
5-year-old male
with history of
chronic
severe
obstructive sleep
apnea,
underwent a tonsillectomy
and
adenoidectomy
surgery (T&A)
NAGLE
KNAACK
to seek relief
from the ongoing obstructions in the airway. The patient tolerated the
procedure well and was discharged after appropriate
post-anesthesia care unit observation and evaluation.
Several hours later, the plaintiff, decedents mother,
found him unresponsive on the family room couch and
911 was called. Despite significant resuscitative efforts,
the decedent was pronounced dead at the hospital. The
Congratulates
Robert F. Donnelly
Marshall H. Ross
Jessica M. Flage
Charles Y. Sipe
www.goodmanallen.com
RICHMOND
804.346.0600
CHARLOTTESVILLE
434.817.2180
NORFOLK
757.625.1400
$2,150,000
Bone gave way unexpectedly during
back surgery
Injuries alleged: Laceration to the aorta during spine surgery
Court: Richmond Circuit Court
Defense attorneys: Ronald P. Herbert and Todd D. Anderson, Richmond
Plaintiff, a 51-year-old nurse with a history of back
surgery, underwent surgery to fuse four vertebrae using a minimally invasive technique. A preoperative
DEXA scan confirmed good bone quality to support a
fusion. Surgery proceeded uneventfully at L4-5 and
L3-4. However, when using a Cobb elevator to remove
the disk at L2-3, the vertebral body gave way, causing
the instrument to slip anteriorly. Shortly thereafter,
her blood pressure dropped and an injury to the great
$2 million
Patient coded multiple times during
placement of catheter
Got Feedback?
VIRGINIA OFFICE
LOCATIONS INCLUDE:
Our dedicated team of attorneys has a proven record of defending healthcare providers
during investigations and in medical malpractice cases and administrative proceedings
before Virginias licensing boards. We know the process and we know the issues. Let us
put our experience to work to help manage and minimize your risks.
Charlottesville
Alexandria
Norfolk
Richmond
Roanoke
Williamsburg
DELAWARE
MASSACHUSETTS
NEW JERSEY
TEXAS
COLORADO
GEORGIA
MICHIGAN
NEW YORK
VIRGINIA
CONNECTICUT
MARYLAND
NEVADA
PENNSYLVANIA
WASHINGTON, D.C.
LeClairRyan is a law firm providing business counsel and client representation in matters of corporate law and litigation.
W W W.LECL AIRRYAN.C OM
The patient was to follow up with his established hematologist the next morning.
The decedent was discharged from the hospital in the
late morning, but returned by ambulance later that day.
When he was seen again in the hospital, he had signs
and symptoms of a severe intracranial hemorrhage. The
decedent died the following day in the hospital.
The plaintiff filed suit in Norfolk Circuit Court against
the emergency physician and hematology consultant.
The plaintiff alleged that both the defendants should
have ordered additional treatment, which the plaintiff
alleged, would have prevented the intracranial bleed.
Defense experts countered that the treatment plan
met the standard of care and that steroids were the correct initial therapy for this rare bleeding disorder. After
a five-day trial and deliberation by a jury for less than
one hour, the jury returned a verdict in favor of both of
the defendants.
$2 million
BYRNE
PILCHER
MAYER
HERBERT
(trauma surgeon
#1) to take down
the
extensive
adhesions. The
defendant
removed the uterus, ovaries and
fallopian tubes.
The patient did
well initially, but
on post-operative
SILVERMAN
day three she be- MITCHELL
came
severely
hypotensive and tachycardic.
Plaintiff was rushed to the operating room for suspected bowel perforation and sepsis. Trauma surgeon
#2 found a small bowel perforation. He did not say anything about it to the family or defendant, but 17 days
later, trauma surgeon #2 finalized his op report, stating
that the cause of the perforation was an abdominal wall
suture. Plaintiff was in a medically induced coma in the
ICU for a month, and she underwent several abdominal
washout surgeries and a complex abdominal wall reconstruction. She sued the defendant for negligently placing a suture through the small bowel when he closed the
abdominal muscles.
The defendants trauma surgeon expert testified that
the small bowel was more likely injured during the difficult lysis of adhesions not from a suture.
After four days of evidence, the jury deliberated for
three hours before returning a defense verdict.
Got Feedback?
Send an email to:
editor@valawyersmedia.com
$1,925,000
Patient with history of gastric reflux died
after surgery
$1,825,000
Plaintiff said foot surgery was
unnecessary, led to complications
Injuries alleged: Unnecessary surgeries and inappropriate response to
post-operative infection, leading to loss of function in plaintiffs left foot
$1,550,000
Defense attorneys: C.J. Steuart Thomas III and Tate C. Love, Staunton
racic CT showed concern for aortic dissection. The defendant did not see the decedent at any time during this
presentation to the hospital. Ultimately, the decedent
died due to the dissection and resulting stroke.
Defense experts testified it was not a breach of the
standard of care for the defendant physician not to obtain the consultation to rule out aortic aneurysm, as argued by the plaintiff. On the third day of trial, the jury
returned a verdict in favor of the defendant physician.
$1,750,000
Plaintiff: Aneurysm should have
prompted immediate surgery
Injuries alleged: Wrongful death
Court: Winchester Circuit Court
Defense attorneys: Charles Y. Sipe, Charlottesville; Jessica M. Flage,
Norfolk
The decedent,
58, presented to
the emergency
department with
chest pain. He
reported sudden
onset the day
before. Past medical history was
significant,
including coronary
SIPE
FLAGE
artery
disease
and
ascending
aortic aneurysm, among other concerns.
A chest CT referenced an increase in size of the aneurysm from a previous study where it was previously
noted to be 4.4 cm. The decedent was admitted for observation to be followed by the defendant hospitalist.
The decedent remained on cardiac monitoring through
the night and was discharged home the following afternoon.The defendant signed discharge instructions notifying the patient to call 911 should he have chest pain
or unrelieved pain.
The decedent presented to the emergency department
three days later with an altered mental status. A tho-
$1.5 million
ER patient did not reveal combination of
drugs that led to overdose
Injuries alleged: Wrongful death
Court: Roanoke Circuit Court
Defense attorneys: Joel McCray and Ruth Griggs, Richmond
The
plaintiffs
alleged
that their son,
who
presented
to the emergency
department
after taking an
overdose of Dextromethorphan,
received improper
treatment.
McCRAY
GRIGGS
The defendants
argued that the
son deliberately, with the intent to commit suicide, withheld from providers in the ED information regarding
his recent consumption of Selegiline, an anti-depressant
medication, which reacted with the overdose of Dextromethorphan and resulted in his death. The defendants
sought to present evidence and jury instructions on illegal act, assumption of risk and contributory negligence.
The court allowed evidence and jury instructions on contributory negligence.
$1,200,000
Complications arose during surgery on
broken clavicle
Injuries alleged: Laceration of the subclavian vein during clavicle surgery
Court: Stafford County Circuit Court
Defense attorneys: Byron Mitchell and Coreen Silverman, Fredericksburg
Plaintiff, age 52 and a mailman with the US Postal Service for 26 years, fell, fracturing his collarbone.
$1 million
Bacterial infection worsened after
discharge from hospital
Injuries alleged: Severe septic shock
Court: Halifax County Circuit Court
Defense attorneys: Elizabeth Guilbert Perrow and Daniel T. Sarrell,
Roanoke
Plaintiff, 59, underwent an urgent laparoscopic cholecystectomy that was converted to an open procedure
after his gallbladder ruptured, spilling a large amount
of purulent bile into the abdominal cavity.
Post-operatively, plaintiffs white blood count, BUN
and creatinine levels began to rise after surgery; the levels were higher the next day. At discharge, plaintiff was
switched from intravenous Unasyn to an oral antibiotic
valawyersweekly.com
Offer: None
ANDERSON
FRITH
ELLERMAN
BROOK
The Verdicts & Settlements page in Virginia Lawyers Weekly is a forum for lawyers in Virginia to share results of recent
cases. It is intended as a tool to help in determining case values for trial or settlement. Submissions are provided by one
of the lawyers in the case. Virginia Lawyers Weekly reserves the right to edit submissions for style, language and length.
Offer: $1,200,000.00
Defendants experts: Dr. Gearhart, Dr. Merguerian, Dr. Anthony, Dr. Masters, Dr. Appelbaum, Dr.
Arant, Dr. Huff
Demand: $1,500,000.00
to a tertiary referral
facility.
On Jan. 26, an open
procedure was performed at the tertiary
facility, wherein the
surgical team encounter[ed] about 3
L[iters] of pus mixed
with bile, and also
encountered an obviFAVALORO
ous [iatrogenic] injury
to the common bile
duct in the intrahepatic site a couple of
liver lacerations The common bile duct
seemed to have Endo-GIA staplers and
these Endo-GIA staplers were progressing into the intrahepatic section of the
duct. In the intrahepatic section, there
was a dehiscence of the staple line where
all the bile was pouring. Given the rapid
blood pressure decline experienced by the
patient during the procedure, the surgical team made the decision to terminate
Amount: $1,800,000.00
BENNETT
Amount: $662,500.00
Infection |
Amount: $0
Name of case:
Court: Pulaski County Circuit Court
Case no.: CL 13-943
RAWLS
LEWIS
SIPE
FLAGE
Narrower immunity
Recovery |
Incomplete history
Prescription |
provide the information to the prosecutor
two weeks later.
Davis was denied bond and spent 16
days in jail. She alleged she suffered from
medication withdrawal, which caused her
to attempt suicide. The deputy allegedly
misinformed the prosecutor that the deputy had intelligence suggesting Davis
had been involved in other prescription
fraud activity. The commonwealths attorney initiated prosecution, but the charges
ultimately were dismissed.
Davis lost her security clearance and the
government contracts she had been working on, her suit claimed.
Hudson dismissed Davis claims against
Greer and Wal-Mart, without prejudice.
Hudson said one may certainly question
the wisdom or prudence of Greers decisions throughout this incident, but the
allegations do not plausibly amount to neg-
Balance bill |
Martinsville in 2014 when other
staffers noticed he was not feeling
well. A co-worker drove him to an urgent care facility, but the staff there
called an ambulance to take him to
a hospital.
Dennis was having chest pains
that recalled an earlier heart attack,
and nitroglycerin did not seem to
relieve his pain, according to a summary by Henry County Circuit Judge
David V. Williams. Dennis wife said
he was crying upset [and] agitated, the judge wrote.
Dennis arrived at Memorial Hospital of Martinsville & Henry County
in acute emotional and physical distress, Williams said.
While lying in a hospital bed
awaiting treatment, a hospital staffer had him sign a Financial Responsibility Agreement. The agreement provided that the patient was
obligated to promptly pay the hospital in accordance with charges listed
in the hospitals charge description
master or CDM.
Dennis was in the hospital two
days and underwent surgery to
place five stents in his arteries, his
lawyers said.
At issue: $83k
No mutual assent
25 percent solution