Peter Vieth//June 6, 2016
Peter Vieth//June 6, 2016//
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.
Later, 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.