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Supreme Court reinstates med mal case

Medical malpractice plaintiffs continued their string of wins in the Supreme Court of Virginia in an unpublished order issued today.

The case, Kraina v. Carman, stemmed from the removal of ruptured breast implants by Norfolk physicians in November 2001. In her original complaint, the plaintiff specified injuries that she alleged were caused by the failure of the defendants to properly prescribe antibiotics to cure an infection after the surgery. In addition, she filed a general allegation of negligence based on her treatment from March 2001 though the date of the surgery.

In answers to interrogatories, plaintiff’s expert contended that the defendants were negligent in performing all aspects of implant removal and breast reduction in the same procedure. In her designation of the expert’s testimony, plaintiff said he would assert that defendants should have used a two-stage procedure that would have avoided the infection and loss of tissue. The designation did not allege negligence in treating the infection.

Defendants contended plaintiff had abandoned the original theory of negligence in treating the infection and presented an entirely new theory alleging negligence in planning and executing the surgery itself. The trial judge granted their motion to strike the designation and entered summary judgment because plaintiff did not have expert testimony on causation and the standard of care.

The Supreme Court ruled, however, that the general allegation of negligence was enough to put the defendants on notice that plaintiff was alleging negligence during the surgery itself. The court said the trial judge could properly have excluded the expert’s testimony about post-surgery treatment but erred in excluding it altogether.

The ruling in the case argued in June followed two decisions in favor of plaintiffs on June 6, giving plaintiffs 11 straight decisions in their favor from the court.

By Alan Cooper

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