Medical practice was liable, doctor was not

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The Supreme Court of Virginia has reinstated a jury verdict against a Portsmouth medical practice for alleged sloppy management in the case of a 24-year-old patient who died of pneumonia.

The trial judge ruled the $3.5-million verdict had to be set aside because the jury made inconsistent findings – exonerating the doctor, but finding the doctor’s medical practice liable.

Examining the jury instructions, however, the high court concluded the panel’s finding in favor of the doctor was not exoneration. In its unpublished May 10 opinion, the Supreme Court remanded the case for “entry of final judgment” in the amount of the medical malpractice cap against the medical practice.

“It’s been a long battle since 2006,” said Philip J. Geib of Virginia Beach, lawyer for the patient’s family.

In Geib’s account of the case, 24-year-old Kenneth Westermann went to Dr. Arthur Bermisa’s office with chest pain and a cough. Westermann was diagnosed with chest wall pain and prescribed a narcotic pain reliever.

Westermann returned the next day with more severe symptoms. He was diagnosed with an upper respiratory infection and prescribed a cough syrup containing more narcotics.

That same day, Westermann underwent a chest X-ray at a local hospital. The X-ray showed pneumonia.

The hospital faxed the results to Bermisa and, shortly afterwards, confirmed with the doctor’s office that the doctor received the results.

However, Bermisa did not review the results until two days later, according to Geib. “Literally, there was no system to get it to the doctor,” Geib said.

Upon his belated review of the X-ray results, Bermisa had his office try to contact Westermann with the diagnosis of pneumonia, but the staff reportedly misdialed Westermann’s phone number. Bermisa’s office made no further attempt to contact Westermann, Geib said.

Westermann’s former wife found him unresponsive. He died of pneumonia shortly after admission to a hospital emergency department.

After jury returned its verdict of $3.5 million against the medical practice, Portsmouth Circuit Judge Johnny E. Morrison reduced the award to the applicable medical malpractice cap of $1.85 million.

Because the claim against the practice was based solely on the actions of Bermisa under the doctrine of respondeat superior, Morrison later set aside the verdict.

“There were absolutely no allegations the medical practice was independently liable to the Plaintiff,” Morrison wrote in Westermann v. Bermisa (VLW 011-8-072).

Nevertheless, while the jury verdict forms allowed the jury to find against the medical practice based on the physician employee’s actions, the Supreme Court said there was no instruction on what the jury had to find to render a verdict against the doctor individually.

“Due to the specific jury instructions given and the verdict forms provided, the blank verdict form pertaining to Dr. Bermisa did not constitute ‘an affirmative finding of non-negligence’ and thus did not exonerate the medical practice,” the court wrote in its unpublished order (VLW 013-6-042).

“They did not need to find A in order to find B,” as Geib put it.

Geib said the defendants never offered more than $75,000 in the case, and held fast to that number throughout a mediation session.

Dante M. Filetti of Norfolk argued the appeal for the defendants. He did not return a call for comment.