Verdict is $2.75M in missed diagnosis case

An Abingdon federal jury awarded $2.75 million to family members of a patient who died of a pulmonary embolism despite an emergency room visit nearly three weeks before.

The Dec. 7 verdict came after a four-day trial before U.S. District Judge James P. Jones.

The family’s recovery is limited to $2.05 million under Virginia’s medical malpractice cap.

The family members contended the emergency physician should have recognized the dangerous blood clot and resulting lung condition when Shawn McKee was treated at the Russell County Medical Center emergency department in 2013.

The case produced rulings from Jones on exposure for the staffing agency that supplied emergency doctors, the patient’s disputed residency in another state, and the patient’s alleged contributory negligence in delaying later treatment.

McKee – the patient – went to the Russell County hospital on June 7, 2013, with chest and back pain, shortness of breath, nausea and fever, according to court documents. Dr. Dwight L. Bailey performed a number of tests and concluded that McKee suffered from acute bronchitis. Bailey released McKee that evening.

McKee moved with his family to Idaho on June 12.

On the night of June 24, McKee again had shortness of breath. In a discussion with his family, McKee’s mother-in-law strongly urged him to go to a hospital right away. Instead, McKee waited until the morning.

An ambulance was summoned as McKee’s condition worsened in the morning. He died shortly after arrival at the hospital.

An autopsy showed pulmonary artery thromboembolism and bilateral pulmonary infarcts.

McKee’s family claimed Bailey should have suspected a pulmonary embolism and pursued further testing.

Bailey was too heavy for a CT scan on the hospital’s equipment, but he should have been provided with anti-coagulants and sent to Abingdon for a scan, the family contended.

The plaintiff’s case was summarized by Benjamin D. Byrd of Roanoke, one of the legal team that represented McKee’s family. Also trying the case were Charles H. Smith III and Andrew M. Bowman of Gentry Locke.

The parties disputed whether McKee mentioned to the doctor that he was planning to move from Virginia in just a few days. Long travel is a risk factor for blood clots, Byrd said.

A family member recalled the conversation, but the doctor said he had no memory of a discussion about travel.

Agency liability

Another issue for the jury was whether the doctor’s staffing agency could be held liable.

Bailey was placed at the hospital through a contract with Appalachian Emergency Physicians which identified him as an independent contractor. Jones said there were factors that cut both ways in determining whether the doctor should be considered an employee or an independent contractor.

Jones left that decision to the jury, which imposed liability on AEP along with the doctor. Jones’ opinion is Bagheri v. Bailey (VLW 015-3-303).

To help resolve the employment question, the jury heard evidence about the doctor’s medical malpractice insurance. The insurance provided by the staffing agency was a factor in the question of whether the doctor was an employee of the staffing agency, Byrd said.

The parties collaborated with the judge to craft a jury instruction on the issue of employment status, Byrd added.

Jones refused to allow a defense of contributory negligence based on McKee’s delay in going to the hospital in Idaho. The patient’s negligence was not contemporaneous with the alleged medical negligence, the judge ruled in Bagheri, Adm’r v. Bailey (VLW 015-3-550).

Early in the case, Jones weighed various factors to determine that McKee was domiciled in Idaho upon his arrival there and, therefore, diversity jurisdiction existed to keep the case in federal court. His jurisdiction decision is Bagheri v. Bailey (VLW 015-3-551).

The doctor and the staffing agency, Appalachian Emergency Physicians, were represented by James N.L. Humphreys and Jimmie C. Miller of Kingsport, Tennessee.

Humphreys declined comment beyond saying that the defendants planned to file post-trial motions.