Virginia Lawyers Weekly VA Lawyers Weekly
Plaintiff was a 60-year-old long-time smoker diagnosed with laryngeal cancer which required a laryngectomy. Following his 10-hour surgery, nurses noticed diminished pulses in his feet and discoloration on the soles.
According to the nurses, this finding was made at 8:30 a.m. and the admitting surgeon was called. The surgeon denied ever receiving a phone call and didn’t see the patient until his rounds at 12:00 p.m., at which time he called for a vascular surgeon. The vascular surgeon denied receiving a call from the treating surgeon, and no vascular surgeon saw the patient until approximately 8:00 p.m. By that time the patient’s legs could not be saved.
Circulation to the lower extremities was diminished due to a pre-existing condition known as peripheral vascular disease (PVD), most likely the result of long-term smoking. The primary acts of negligence of the surgeon were (1) that he failed to diagnose PVD pre-operatively; and (2) he failed to obtain timely vascular intervention that would have saved the legs.
Plaintiff’s pre-existing co-morbidities such as hypertension, PVD (which makes him prone to limb loss and heart failure) and his stage IV cancer (with a 50 percent five-year survival rate) were factors that weighed on the settlement value.
At mediation, the admitting surgeon and plaintiff agreed on the settlement value of $1,600,000, but the hospital was also sued for its own failure to see that the vascular consultation occurred. The hospital denied any responsibility and was prepared to make only a token contribution to settlement. Not wanting to pay the entire $1,600,000, the surgeon suggested that plaintiff accept a portion of the settlement and proceed solely against the hospital. The suggestion was rejected because plaintiff was not optimistic about his chances of prevailing against the hospital alone.
In an effort to facilitate settlement discussions, it was agreed between the surgeon and plaintiff that if the surgeon would guarantee plaintiff would recover no less than $1,600,000 at trial against the hospital, plaintiff would non-suit the surgeon and proceed solely against the hospital.
If the plaintiff recovered against the hospital, the surgeon would pay less than the $1,600,000 agreed upon and the hospital would pay the difference up to the amount of the verdict or the cap, whichever was greater. After nine hours of jury deliberation, a verdict was returned in favor of the hospital.
See Verdict & Settlement Report 10-T-118 for an account of the trial against the hospital.
[10-T-135]Type of action: Medical malpractice
Type of action: Bilateral leg amputation
Name of case: Confidential
Court: Prince William County Circuit Court
Tried before: Mediation
Name of judge: Donald Kent
Special damages: $600,000 in medical expenses and $500,000 to $1,000,000 for future care to provide for handicap accessible living accommodations
Verdict or Settlement: Settlement
Amount: $1,600,000
Date: July 1, 2010
Plaintiff’s attorneys: Gary B. Mims and Zachery Desmond, Reston
