Portsmouth judge sets aside $3.5 med-mal award

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A Portsmouth judge has set aside a $3.5 million verdict against a medical practice group because the verdict exonerated the employee-physician who the plaintiff alleged was negligent.

The doctor’s office allegedly dialed the wrong phone number, then failed to follow up, to let a man know that test results showed pneumonia, not an upper respiratory infection. The man died of pneumonia a short time later.

When the verdict form came back from the jury, there was no finding against the doctor, only against the practice group. The jury could have found Bermisa & Bermisa MD PLC liable only as the doctor’s employer, under the doctrine of respondeat superior, Judge Johnny E. Morrison concluded.
“There were absolutely no allegations the medical practice was independently liable to the Plaintiff,” Morrison wrote in Westermann v. Bermisa (VLW 011-8-072).

According to testimony at the trial in September, Kenneth M. Westermann went to family practitioner Arthur V. Bermisa with chest pain. Bermisa diagnosed chest wall pain and prescribed a narcotic pain reliever. Westermann returned the next day spitting up blood-stained sputum and complaining of increased chest pain.

Bermisa diagnosed an upper respiratory infection and prescribed cough syrup with more narcotics. Westermann went to a hospital the same day and had a chest x-ray that indicated pneumonia.
The hospital transmitted the results to Bermisa’s office and confirmed that the office had received them. However, Bermisa did not review the results until two days later. The office misdialed Westermann’s number and made no further efforts to contact him.

His former wife found Westermann at home unresponsive. He died of pneumonia shortly after admission to the emergency department.

When it returned the verdict, the jury remained silent as to the employee’s liability, Morrison said.
In deciding to set aside the $3.5 million award, Morrison relied largely on two Supreme Court of Virginia cases, Roughton Pontiac Corp. v. Alston, 236 Va. 152 (1988) and Wintergreen Partners Inc. v. McGuireWoods LLP (VLW 010-6-085).

Under those cases, a judge may look at jury instructions to determine whether there are theories other than respondeat superior under which the jury could have found the practice liable while exonerating the doctor. Here, the jury was instructed that the plaintiff could recover against the practice only if Bermisa was negligent while acting within the scope of his employment, Morrison wrote.

While it might be tempting to find the jurors meant to hold both Bermisa and his practice liable and inadvertently omitted marking the form, the panel could just as easily have been unsure of Bermisa’s negligence and unwilling to make him pay out of his own pocket, Morrison said.

Carolyn P. Oast and Mark J. Favaloro of Virginia Beach represented the defendants. Philip J. Geib of Virginia Beach represented Westermann’s estate. The jury verdict earlier had been reduced to $1.85 million, the medical malpractice cap in effect at the time of Westermann’s death.

Favaloro said an argument might have been made that the failure to notify Westermann was a failure of the office as well as Bermisa, but the case was not pled or tried under that theory.

Geib did not respond to a request for comment.

Thomas W. Williamson Jr., a Richmond attorney who frequently represents plaintiffs in medical malpractice cases, said the jury’s action indicated “a compromise verdict or they really liked the doctor and didn’t want to tag him.”

He said he regards it as good practice to name both the physician and his practice group as defendants because more problems can be created by suing only the practice or the physician than by suing both.

The possibility of inconsistent verdicts can be eliminated by seeking an admission that the physician is an agent of the practice group, he said. In that case, the jury has only one decision to make about negligence, he said.

“I don’t want the jury to do any more writing than absolutely necessary,” he added. Forms that ask the jury to make multiple findings “create the opportunity for a verdict that won’t stand,” he said.