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Supreme Court decides med mal cases

Failures to communicate were the keys to two medical malpractice cases decided today in favor oF plaintiffs by the Supreme Court of Virginia.

In one, Williams v. Le, a diagnostic radiologist never reported directly to the treating physician or his staff that a Doppler sonogram showed that a patient had a deep vein thrombosis in her right lower leg.

The radiologist testified that he was placed on hold when he attempted to call the physician and was unable to leave a voicemail or talk directly with anyone. Instead, he sent an urgent fax to the physician. The physician did not see the fax or learn of the diagnosis before the patient died six days after the procedure from a pulmonary embolism caused by the thrombosis.

The patient’s estate settled with the treating physician’s practice group and her health plan, and the case went to trial against the radiologist. The jury was instructed that it should decide in favor of the radiologist if it concluded that the death was the result of a superseding intervening cause.

That instruction should have been given only if reasonable persons could conclude that the treating physician’s later negligence was such that the radiologist’s negligence did not contribute in the slightest degree to the death, Justice Donald W. Lemons wrote for the court. The instruction was in error because the uncontradicted evidence was “that the communication problems in this case were begun and put in motion by [the radiologist’s] failure to make direct contact” with the treating physician or his staff, Lemons wrote.

In the second case, Webb v. Smith, a physician agreed to remove the uterus and ovaries of a women in the same procedure. He removed the uterus but forgot to remove the ovaries. The woman underwent a second surgery to have the ovaries removed. A jury awarded her $75,000 in damages because of the necessity for the second surgery.

An expert witness testified that the physician breached the standard of care in by agreeing to perform two procedures in one surgery but in failing to do so. The witness said nothing about the medical need for the second surgery, and the trial judge set aside the verdict because of the absence of expert testimony on causation.

The Supreme Court reversed, 5-2, finding, in an opinion by Senior Justice Roscoe B. Stephenson Jr., that “the present case presents one of the rare instances in which expert testimony was not necessary or appropriate.” Justices Cynthia D. Kinser and G. Steven Agee dissented. They said the physician had testified that there was no medical necessity for removing the ovaries, and there was no testimony to contradict that assertion.

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