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Court splits with two med-mal decisions

The plaintiffs and defense both score a win with two medical malpractice appeals decided today by the Supreme Court of Virginia.

In Graham v. Cook , the court affirmed a defense verdict for an orthopedic surgeon and revisited the issue of when a treating physician’s testimony is considered “factual” versus diagnostic.  Testimony is subject to the rules for diagnosis when it “identif[ies] specifically the cause of [the plaintiff’s] health condition based on his signs and symptoms,” the court held.  Observations and notes about possibilities did not qualify as diagnoses, but a conclusion that the plaintiff “clearly had … avascular necrosis” was a diagnosis.

In Howell v. Sobhan , the court ruled the trial judge was too quick to grant a motion to strike in a G.I. surgery case.  The trial court held the plaintiff had failed to prove proximate cause, but the Supreme Court found otherwise since a plaintiff’s expert testified a more limited surgical procedure could have avoided the plaintiff’s permanent bowel problems.

By Peter Vieth

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