Virginia Lawyers Weekly

An Alexandria jury has returned a $7 million medical-malpractice verdict for a lawyer who claimed he suffered a stroke after his doctor failed to diagnose a heart problem.

Five weeks after undergoing a root canal for an abscessed tooth, Gary B. Butler developed a fever, fatigue, headache, runny nose and sinus pain.

He went to Dr. Mehul Trivedi at Alexandria Primary Care Associates, who diagnosed sinusitis and put Butler on a 10-day course of antibiotics.

Six months later, Butler, then an attorney in the Vienna office of Baltimore-based Semmes, Bowen & Semmes, had a stroke caused indirectly by bacterial endocarditis.

At 9:45 p.m. on Jan. 9, an Alexandria Circuit Court jury concluded that the endocarditis should have been diagnosed earlier and awarded the 36-year-old Butler $7 million.

The extent of Butler’s injury is evident from the claim his attorney, William E. Artz of Arlington, made for the loss of future earning capacity. Artz contended that Butler will be able to work only half time as a paralegal, a diminution in his skills that Artz said will result in $1.3 million in lost income.

Butler incurred more than $400,000 in medical expenses related to the endocarditis, a somewhat rare disease that can cause a variety of non-specific symptoms such as those Butler had. The disease attacks a heart valve, the aortic valve in Butler’s case, and a vegetative growth develops. Without treatment, it typically causes the valve to fail and death to occur within six months, Artz said.

It was about six months after the development of the abscessed tooth that material from the vegetative growth migrated from the heart valve to Butler’s brain and caused the stroke, Artz said.

After the stroke, Butler had open-heart surgery to replace the damaged valve, and a pacemaker was installed in his chest.

As a result of the stroke, Butler has lost the ability to concentrate and focus on more than one thing at a time despite extensive occupational, physical and speech therapy. He was out of work for a year and then worked first 10 and then 18 hours a week in a highly structured environment at the law firm for a year before he was let go, Artz said.

“He’s made quite a recovery given everything he’s been through,” Artz said, but his wife, who had worked as a journalist, “is a caretaker rather than a wife.”

Artz contended that the possibility of endocarditis should have occurred to Trivedi at some point during the four courses of treatment with different antibiotics that failed to clear up what appeared to be a sinus infection.

A negative CT scan and a finding of anemia at the time of the fourth course of antibiotics was inconsistent with sinusitis and suggested a systemic infection such as endocarditis. Even at that relatively late point, the disease could have been cured by hospitalization and treatment with intravenous antibiotics, experts for Butler testified.

A cardiac exam should have been performed and a blood culture should have been done to detect the cause of the repeated infections, Artz said.

A key point in the trial was Trivedi’s testimony that he checked Butler’s heart with a stethoscope when the disease had been well enough established that a murmur from the damaged valve should have been audible. Trivedi said he made the check at the same time he listened to Butler’s lungs, but the medical chart did not reflect cardiac monitoring.

When a blood culture was finally done after the stroke, it disclosed the type of bacteria that is the most common cause of endocarditis.

Defense attorney J. Jonathan Schraub of McLean contended that Trivedi responded appropriately to Butler’s condition at all times, and a jury that heard the case last year was unable to reach a verdict.

“The verdict is very disappointing,” Schraub said. “It is grossly unfair given the facts and the medicine. We simply could not overcome an enormous amount of sympathy for the patient.”

Because of the cap on medical malpractice recoveries, the award will be reduced to $1.8 million. Artz said the case is an illustration of the inequity of the cap. Butler’s medical expenses, his loss of income and the diminution of the quality of his life justified the full award, he said.

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