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$2.75M verdict stands despite jury’s media exposure

Peter Vieth//June 6, 2016

$2.75M verdict stands despite jury’s media exposure

Peter Vieth//June 6, 2016//

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Even though jurors heard about earlier legal problems for a Leb­anon doctor defending a medical malpractice case, the jury’s $2.75 million verdict will be allowed to stand, a federal judge in Abingdon has ruled.

The trial against Dr. Dwight L. Bailey over the death of an emergency room patient was punctuated by references to Bailey’s unrelated license troubles. Four jurors heard or saw news reports that mentioned Bailey’s discipline for mishan­dling pain management prescriptions.

News TV Television MAINLater, when Bailey offered expert opin­ions about his emergency care, a plain­tiff ’s lawyer cross-examined him without warning about his two-year license sus­pension, a move the judge labelled “un­professional.”

Despite those in­cidents, U.S. Dis­trict Judge James P. Jones denied Bai­ley’s motion for a new trial in a May 24 opinion and entered judgment against the doctor and his practice group for $2.05 million, the maximum recovery allowed under Vir­ginia’s medical malpractice cap.

Jones’ opinion is Bagheri v. Bailey (VLW 016-3-247).

Bailey’s lawyers say they will appeal.


Diagnosis at issue

The patient, Shawn McKee, 31, came to a Russell County hospital emergency room in 2013 with chest and back pain, shortness of breath, nausea, rapid heart rate and a fever. He also had an infected foot.

Bailey, the doctor on duty, ordered a number of tests including a “D-dimer” study. The results correlated with a pos­sibility of embolism, a blood clot that could obstruct a blood vessel. Bailey also wanted to do a CT scan to check for blood clots in the lungs, but McKee was too large for the hospital’s CT scanner.

Bailey ultimately concluded McKee had acute bronchitis and released him.

Five days later, McKee set out with his family on a four-day move to Idaho. Once there, McKee again experienced short­ness of breath. He died of a blood clot in a lung shortly after arrival at an Idaho hospital, 18 days after his Russell Coun­ty ER visit. An autopsy showed signs of dead tissue in both lungs.

McKee’s estate claimed Bailey should have suspected a pulmonary embolism and arranged for a CT scan at a nearby hospital with a larger scanner. Proper treatment would have prevented the lat­er embolism, the plaintiff claimed.

Bailey’s experts testified his diagnosis was appropriate and, further, that the fatal embolism was formed as a result of four days of inactivity on McKee’s car ride to Idaho.

The jury considered the case for about an hour before returning the $2.75 mil­lion verdict against both Bailey and the practice group that supplied emergency physicians for the hospital.


Case ‘poisoned’ by news reports?

The defendants contended their case was poisoned when some of the jurors heard “disparaging and erroneous” tele­vision news coverage of the case during the trial, Jones said.

Despite instructions not to listen to news reports about the case, four jurors heard or read brief snatches of television news accounts that suggested the ongo­ing trial was related to earlier accusa­tions of medication mismanagement by Bailey.

Jones questioned the jurors individu­ally about what they heard and then told the jury that the news reports had no re­lation to the case at trial.

Even though the news stories, at worst, conveyed the idea that Bailey was over­prescribing narcotic drugs to his patients and had caused the deaths of several of them, Jones said he found that the ex­posed jurors “did not in fact draw any such conclusions.”

“Based upon my opportunity to care­fully examine the jurors and make the appropriate credibility determinations from their responses, I find that they were not affected in their ability to judge Dr. Bailey’s case fairly,” Jones wrote.

“The totality of the circumstances thus convinces me that the jury was not prej­udiced by the news reports and that the reports do not provide an adequate basis upon which to grant a new trial,” Jones said.


Surprise questions about suspension

Jones was critical of a later trial tactic that revealed Bailey’s license suspension before the jury.

Facing accusations of prescription mis­management in 2014, Bailey had agreed to a two-year suspension of his medical license. Nevertheless, at the start of the malpractice trial, lawyers for McKee’s family agreed not to put the suspen­sion into evidence unless the defendants made the issue relevant.

After Jones resolved the news reports issue, defense lawyers advised the plain­tiff’s side that Bailey would testify, as an expert, that he complied with the stan­dard of care in his treatment of McKee.

Plaintiff’s attorney Benjamin D. Byrd of Roanoke first objected and then re­lented, suggesting that the defense was opening a door. Jones professed to be “clueless” about the strategy of plain­tiff’s counsel at the time.

The strategy became apparent when, without prior notice, Byrd questioned Bailey about his license suspension over the objection of defense counsel.

Jones overruled the objection and al­lowed questions that established Bailey’s suspension. Jones initially accepted the plaintiff’s view that Bailey’s tarnished credentials became relevant when he be­came a standard of care expert.

After a weekend recess, however, Jones reversed his position and sustained the objections to the license inquiry.

“I decided that evidence of his license revocation was more unfairly prejudicial than probative,” Jones said.

In a footnote, Jones chastised Byrd.

“It is clear to me that Mr. Byrd should have first raised this issue outside of the jury’s presence in light of the sensi­tive nature of the issue, the prior media exposure to the jury, and the pretrial agreement with opposing counsel. Not to do so was, in my opinion, unprofession­al,” Jones wrote.

Jones told the jury to disregard the ev­idence of the doctor’s suspension.

“I believe my instruction to the jury … sufficiently cured any prejudice,” Jones said.

“The defendants anticipate an appeal,” said James N.L. Humphreys of King­sport, who defended Bailey along with Jimmie C. Miller.

Former Virginia Supreme Court Chief Justice Cynthia D. Kinser and Byrd represented the plaintiff as they urged Jones to uphold the jury verdict. Neither attorney responded to a request for com­ment.

The Bailey case earlier 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.

VLW 016-3-247

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