Virginia Lawyers Weekly VA Lawyers Weekly
A verdict handed down by a Fairfax jury in a medical malpractice suit tops the list in Virginia Lawyers Weekly’s compilation of “Largest Verdicts” for 2017.
When a 55-year-old woman died from complications after a balloon used during a noninvasive surgery to block off a brain aneurysm over-inflated, the neuro-radiologist that performed the surgery blamed the anesthesiologist for the woman.
The stories from the two defendants conflicted, but the jury found the anesthesiologist the more credible physician. The radiologist was found liable, and the jury awarded $7 million in damages.
Forty percent of the other largest verdicts featured in the compilation were medical malpractice verdicts, including the second-highest verdict that saw $3.5 million awarded in a case where a nurse practitioner failed to disclose a patient’s deep vein thrombosis that ultimately led to the patient’s death a couple weeks later.
Here are the criteria for a verdict to make the list:
- The verdict must be for at least $1 million.
- The verdict was returned by a jury in Virginia, not by a judge.
- The verdict was returned in the calendar year 2017.
There are 10 verdicts in this year’s survey.
If we have missed any million-dollar verdicts from 2017, please let us know. We’ll be glad to add that information to the online version of the feature so it can be as complete as possible.
And note that we will present the 2017 survey of million-dollar settlements in our Feb. 12 edition. If you have a qualifying settlement that you haven’t reported yet, please send it to [email protected] by Feb. 1.
Presenting the 2017 compilation
In this issue, Virginia Lawyers Weekly presents the survey of “Virginia’s Largest Verdicts of 2017,” our annual compilation of big jury verdicts from across the commonwealth.
As in past years, the criteria for the list are simple:
- The verdict must be for at least $1 million.
- The verdict was returned by a jury in Virginia, not a judge.
- The verdict was returned in the calendar year 2017.
The 2017 survey features 13 verdicts, same number from last year. If we have missed any million-dollar verdicts from 2017, please let us know. We’ll be glad to add that information to the online version of the feature so it can be as complete as possible.
And during the coming year, we would greatly appreciate hearing about verdicts that will make the 2018 list.
– Paul Fletcher, Editor-in-Chief
1
$7 Million
Two docs blame each other, jury awards $7M
Estate of Karen Ebersole v. Richard S. Pergolizzi, M.D., et al.
Type of case: Medical Malpractice
Attorneys: S.D. Roberts Moore, Anthony “Tony” Russell, and Les Bowers, Roanoke; Don Culkin, Leesburg
After hearing two doctors blame each other for a patient’s death, a Fairfax County jury delivered a $7 million verdict for the patient’s family July 19.
The patient was Karen Ebersole, a 55-year-old mother of two adult children with a GED who had worked her way to accounts manager at Fairfax Radiological Consultants PC, one of the defendants in her case.
In 2013, she was discovered to have an intact cerebral aneurysm and was offered two treatment options. One involved open brain surgery and the other, less invasive, procedure involved the placement of metal coils in her vessels that would cause blood to clot and block off the aneurysm.
She selected the second, endovascular procedure because it promised to have her home the next day and back at work in a week, said Les S. Bowers of Roanoke, one of the plaintiff ’s team.
In the procedure she chose, the coils are placed in the blood vessels with the help of a balloon that is temporarily inflated inside the vessel to provide space for insertion of a coil.
During surgery, the balloon was manipulated by an interventional neuro-radiologist, Richard S. Pergolizzi, MD, while anesthesiologist Dung “Joseph” Nguyen managed the patient’s overall condition.
The balloon allegedly overinflated and led to rupture of the artery and to Ebersole’s death three days later from a brain bleed.
Pergolizzi maintained the patient was “light on anesthesia” and had “bucked and jerked” during the procedure, lifting her head off the table. The sudden movement caused the balloon malfunction, the radiologist said.
Based on Pergolizzi’s account, blaming Nguyen for insufficient anesthesia, the plaintiff ’s lawyers filed suit in Fairfax County against only Nguyen and his group.
Keeping their options open, however, the plaintiff attorneys sued Pergolizzi in faraway Lee County in 2015 and did not request service.
A photo taken by a medical risk manager reportedly showed the patient with her head securely taped down on the table.
The suit against Pergolizzi was transferred to Fairfax and he was added as a defendant in the wrongful death action.
2
$3.8 Million
Contractor lost bid based on wrong ‘size’ of competitor
Heard Construction, Inc. v. Waterfront Marine Construction, Inc. et al.
Type of case: Tortious Interference
Court: Chesapeake Circuit Court
Attorneys: Christopher D. Davis, Chesapeake, J. Andrew Baxter, McLean
The parties were all government contractors who bid on project to replace a boat ramp on Pier 34 at the Little Creek Naval Base in Norfolk.
The IFB mandated sealed bidding with the lowest offer winning. Defendant was the low bidder, but plaintiff was classified as a HUBZone business entitled to a 10 percent pricing preference under 48 CFR 19.1307 under certain conditions. The 10 percent pricing preference was only applicable if defendant was classified as a “large” business under the applicable size standard at the time of the bid. Defendant represented its size as “small,” and therefore the 10 percent preference did not apply and defendant was awarded the bid.
When plaintiff discovered that defendant was actually a “large” business at the time of the bid, plaintiff filed a bid protest. In considering the protest, the local Small Business Administration office requested information from defendant to verify its size status, and defendant responded with information that led the SBA office to determine that defendant was “small,” as it claimed.
Plaintiff filed suit in the Chesapeake Circuit Court, alleging tortious interference, against defendant, along with the former principals of defendant and defendants’ parent companies. After a four-day jury trial, the jurors found defendants liable and awarded damages.
3
$3.5 Million
Nurse practitioner failed to advise re blood clot possibility
Shook v. Cook
Type of case: Medical Malpractice
Court: Nottoway County Circuit Court
Attorneys: Frank Hilton and Tripp Franklin, Harrisonburg
A nurse practitioner (who was a personal friend of the decedent) failed to refer the decedent to a hospital emergency room on a Sunday afternoon for suspected DVT. The nurse practitioner conceded that DVT was number 1 on her differential diagnosis, but she effectively ruled it out as a consideration because of the 45-year-old decedent’s history of knee arthritis. The nurse practitioner did not tell the patient or her husband, who was present, that a blood clot was a consideration. Approximately 15 hours later, the 45-year-old high school biology teacher, mother of two, died of a pulmonary embolism.
There was a private autopsy the day of death. The pathologist described in gross detail in his report and his deposition the status of the decedent’s gallbladder, among other things. Following his deposition it was confirmed that her gallbladder had been removed in 1987. Plaintiff nonsuited, got a second pathologist from the state of Georgia and petitioned the court to exhume the body for a second forensic autopsy.
4
$2.55 Million
Man who developed flesh-eating bacteria sues dentist
Erin Locascio v. Thomas Raley Jr. M.D., and Advanced Spine & Pain PLLC
Type of case: Medical Malpractice
Court: Stafford County Circuit Court
Attorneys: Donna Miller Rostant, Peter C. DePaolis, and Ann LaCroix Jones, Fairfax
This was a medical malpractice case for injury to a patient during spinal surgery called posterior lumbar interbody fusion (“PLIF”). During surgery, defendant inserted surgical instruments called shavers too deeply into the patient’s body and lacerated two major blood vessels. As a result, the patient bled profusely, required infusion of 20 units of blood, suffered hypovolemic shock, stroke and multi-organ failure. The patient was left with permanent brain injury and functional impairments.
Evidence at trial established that there are three safety steps a surgeon can take during PLIF to prevent the injuries the patient suffered in the case, and it was the standard of care to use all three. Plaintiff contended that the medical records and the physical evidence proved that defendant skipped all three safety steps.
By the end of trial, the jury had heard four stories from defendant about whether and how much fluoroscopy he used during the procedure. Defendant’s own operative report did not mention the use of fluoroscopy with the placement of shavers, and there were no fluoroscopic images in the patient’s medical record, strongly suggesting that fluoroscopy had not been utilized as defendant contended.
After deliberating for approximately four hours, the jury returned a verdict of $2,550,000.00.
5
$2.4 Million
Doctor failed to appreciate extent of woman’s knee injury
Aleathia Smart v. OrthoVirginia, Inc. and Christopher Kim, M.D.
Type of case: Medical Malpractice
Court: Richmond Circuit Court
Attorneys: Jonathan M. Petty and Brielle M. Hunt, Richmond
The plaintiff, a 35-year-old woman, suffered a tibial plateau fracture and knee dislocation jumping on a trampoline on a Saturday evening. Because of the severity of the patient’s injury and the inability to control her pain, the emergency physician at Chippenham Hospital consulted the orthopedic surgeon on call, the defendant, Dr. Christopher Kim. Dr. Kim placed a knee immobilizer, wrapped the leg in a bulky dressing and admitted the patient overnight for pain control. The following day, Sunday, he discharged her with instructions to remain non-weight-bearing. The plan was for someone from his office to contact her to schedule surgery to repair the fracture later in the week.
The patient endured a difficult night in extreme pain. The following day, a Monday, she received a call from the hospital scheduling surgery to repair the knee on Tuesday. She was told that she would need to bring a $100 co-pay in order for the surgery to proceed, which she did not have. Her pain continued to get worse that afternoon, so her husband drove her to VCU where she could receive indigent care.
To date, she has undergone a total of 20 surgeries and has a functionally useless leg. In the future, she is likely to have either multiple total knee replacements (with low likelihood of success) or above knee amputation.
6
$2.060 Million
Woman injured knee in slip and fall at store
Type of case: Personal Injury
Attorney: Thomas A. Fitzgerald II, Norfolk
Plaintiff, a 34-year-old woman, entered a national retailer at approximately 9:45 PM on the evening of Sept. 17, 2013. Unbeknownst to the plaintiff, floor cleaning activity by a subcontractor for the retailer had started after 9:30 and prior to the contractually mandated time of 10 PM. An employee of the subcontractor was seen on surveillance video operating a floor scrubber in the area of the plaintiff’s subsequent fall.
The fall was also seen on surveillance video. A manager of the store approached the plaintiff and indicated that she has just stopped the subcontractor from cleaning the floor early. An incident report was prepared by the manager which confirmed the floor was wet and the equipment involved was a “floor scrubber.”
The plaintiff reported immediate pain in her right knee and was transported by ambulance to a nearby emergency room. The plaintiff was seen was seen in a follow-up by a local orthopedic practice. An MRI was eventually performed which demonstrated a traumatic osteochondral lesion in the trochlear groove of the right knee. The plaintiff worked as a caregiver at a group home for adults with intellectual disabilities. She was placed on permanent light duty by her orthopedic surgeon and moved to light duty position at the same facility. A lost wage claim was not presented at trial.
Suit was initially filed against the national retailer and following initial discovery, the complaint was amended to add the floor cleaning contractor and a sub-contractor. It was eventually determined that the person operating the floor scrubber was the employee of a sub-sub-contractor.
7
$2 Million
For woman pelvic injury from wreck, jury out 23 minutes
Krapf v. Mud Heron Corp.
Type of case: Personal Injury
Attorneys: Donna Miller Rostant and Ann LaCroix Jones, Fairfax
The plaintiff was a 43-year-old legal secretary from Pennsylvania, who was a front-seat belted passenger on her way to vacation (Busch Gardens) when the vehicle she was riding in was struck from behind two times by a large dump truck on I-95 South in Prince William County.
As a result of the crash, the plaintiff had neck, back and abdominal/pelvic pain. The neck and back pain resolved after a five-week course of physical therapy. The abdominal/pelvic pain did not. The pain caused a constant feeling of bladder pressure and urgency, making her bladder feel as if it was totally full and she was “holding it” while having a 10-pound weight on top of her bladder.
The plaintiff was initially treated by her family practice doctor, who ordered radiology imaging, urine testing and prescribed medications for painful bladder conditions. About four months after the crash, she was referred to a urologist, who did an invasive bladder distention procedure and diagnosed a bladder condition called interstitial cystitis.
Eleven months after the crash, the plaintiff was referred to a urogynecologist for a second opinion, who finally made a diagnosis of severe traumatic pelvic floor injury, caused by the crash.
The defendants admitted liability for the crash, but contested that the injuries were permanent.
Plaintiff asked the jury to return a verdict of $1,200,000. Defense counsel argued that a more appropriate verdict was $75,000. Twenty-three minutes after retiring, the jury returned a verdict of $2,000,000, with interest from the date of the crash.
8
$1.75 Million
Patient was assaulted by CNA at retirement home
The Estate of Austin v. Our Lady of Peace and Martin
Type of case: Medical Malpractice – Sexual Battery
Court: Albemarle Circuit Court
Attorneys: T. Vaden Warren, Jr. and Jessica F. Phillips, Charlottesville
In August 2013, Martin Matthews Martin was arrested after police were called to investigate a sexual assault on a patient at Our Lady of Peace Retirement Community in Albemarle County. Martin was a long-time employee of Our Lady of Peace, who worked as a certified nursing assistant (CNA).
Earlier in the day, another CNA was walking down a residence hall after clocking in for her morning shift. She heard loud moaning sounds from a patient’s room. She recognized the sounds as coming from a specific patient. The moaning was unlike anything she had ever heard from this patient and she testified that she could tell from the volume and type of moaning that the patient was in pain. The CNA walked into the room to check on the patient and noticed that the curtain was pulled closed, which was not normal for that time of day. The CNA looked around the curtain and observed Martin on top of the patient, sexually assaulting the patient.
The CNA did not stop the assault, but instead left the room and walked to another wing of the facility. While walking away from the unit, the CNA passed the unit nurse and did not report what she had seen. The CNA did not immediately report the battery and did not take any immediate action to stop the sexual battery on the patient.
Martin admitted to the sexual battery in an interview with the police later that day.
9
$1.6 Million
Man suffered hurt leg in wreck caused by drunk
Geumple v. Pandt-Brown
Type of case: Personal injury
Court: Portsmouth Circuit Court
Attorneys: Adam Harris Lotkin and Richard Serpe, Norfolk
Plaintiff, a 19-year-old at the time of the incident, was driving home from a friend’s house on the Eastern Shore to his home where he lived with his mother at about 11:00 pm on the main shore highway U.S. Route 13. At the same time, defendant was on her way home from visiting in New York City where she had rented a vehicle from a national chain rental car company and purchased supplemental liability insurance for $1,000,000 that morning. During her trip from New York to her home in Portsmouth, she decided to consume a large amount of alcohol and lost her cognitive and physical abilities to operate a car safely. By the time she was nearly to the Chesapeake Bay Bridge Tunnel she crossed the median and struck plaintiff’s vehicle head-on causing it to flip and plaintiff to be pinned inside with a heinous leg injury and suffer a period of short unconsciousness. Plaintiff woke up to his right leg being severely injured, unable to move and stuck inside his vehicle.
The defendant had a blood alcohol content of 0.265, which was explained to the jury as approximately 3.2 times the legal permissible limit.
It took 45 minutes to extricate plaintiff from the vehicle; he was taken to Riverside Shore hospital but immediately medevacked to Norfolk General Hospital for emergency orthopedic surgery.
Counsel for plaintiff asked the jury to award $1,000,000 in compensatory damages and only $100,000 in punitive damages, which was exactly the ad damnum in the complaint.
The jury returned a verdict 34 minutes later for $500,000 more than the request, all on the compensatory side and $100,000 in punitive damages.
10
$1.46 Million
Plaintiff had right to accelerate payments after default
Holman v. Dominion Mechanical
Type of case: Breach of Contract
Court: Fairfax Circuit Court
Attorneys: Elaine Charlson Bredehoft and Carla D. Brown, Reston
The trial involved a breach of contract arising from the purchase of Mr. Holman’s ownership interest in Dominion Mechanical. Plaintiff Stephen Holman sought to accelerate principal and interest payments, and attorney’s fees equal to 25 percent of the unpaid balance, under the Deferred Purchase Money Promissory Note between him and defendant Dominion Mechanical. Dominion Mechanical contended plaintiff Stephen Holman had no right to accelerate a Deferred Purchase Money Promissory Note for missed interest payments; and that Mr. Holman could only accelerate the note if a principle payment was missed. Dominion further argued that, under the terms of the contract, Mr. Holman had no right to attorneys’ fees and costs on the suit and had to prove the reasonableness of any attorney’s fees and costs requested. Defendant argued that Mr. Holman would have to wait the life of contract years to collect the payments owed to him, even though defendant repeatedly paid late and in incorrect amounts.
The jury agreed that plaintiff had the right to accelerate (based on his repeated communication with defendant throughout 2016 that it was in default for various late payments), and awarded plaintiff $1,462,500, which included attorneys’ fees and costs, plus interest at the rate of 6 percent.
Defendant never made a settlement offer.
11
$1.1 Million
Woman recovers for assault, emotional distress
Hanson v. Cassidy
Type of case: Assault and Intentional Infliction of Emotional Distress
Court: Madison Circuit Court
Attorney: J. Michael Sharman, Culpeper
The assault cause of action arose out of an occurrence on June 20, 2006. Plaintiff Pat Hanson saw defendant Steven Cassidy and members of his family dismantling a fence between the Cassidy property and the Hanson property.
When Pat Hanson went to investigate, she told defendant’s father that if they were removing the fence illegally, they would be liable for replacing it.
At that point, defendant Steven Cassidy shouted, “That’s it!” He lunged at Pat Hanson but his father and son each grabbed one of his arms to restrain him.
Defendant Steven Cassidy was criminally charged under the Class 3 misdemeanor abusive language statute and the Class 1 Assault, but those charges were dismissed by the General District Court on July 18, 2006.
The intentional infliction of emotional distress count came from that June 20, 2006 event; another in late July, 2006 when Hanson and her husband were in in their yard and Cassidy shouted, “I’ll have her head!”; and two other times on Dec. 13, 2006 and March 29, 2007 when Cassidy cursed Hanson when she was in her yard.
Hanson filed suit against Cassidy on June 19, 2008, the day before the expiration of the statute of limitations, seeking $100,000.00 in compensatory and punitive damages.
Cassidy counterclaimed for defamation and malicious prosecution, and asked for $500,000.00 in compensatory and punitive damages.
On March 18, 2009, the circuit court granted plaintiff’s demurrer to the defendant’s defamation claim.
12
$1.057 Million
Woman’s colon was perforated during colonoscopy
Ava Blackburn v. Timothy Klepper, M.D.
Type of case: Medical Malpractice
Court: Buchanan County Circuit Court
Attorneys: Mary Lynn Tate, Abingdon
Ava Blackburn was 64 years old when she was referred to Dr. Timothy Klepper for a colonoscopy after one episode of unexplained bleeding. Klepper is a general surgeon and performed this colonoscopy at Buchanan General Hospital in Grundy.
The colonoscopy was generally uneventful. Blackburn was kept in the recovery room approximately 30 minutes and then moved to a day surgery discharge room where standing orders required she be kept a minimum of 30 minutes with vital signs and conditions monitored prior to discharge under a specific list of criteria — these did not include pain. While in this location, she was under the care of a registered nurse. The typical stay in this room is 30 to 45 minutes. Blackburn was there for more than three hours. The nurse notified Klepper of her symptoms three times during this period. Blackburn described her pain at discharge 10+ and said the nurse told her she might have to come back to the emergency room.
Blackburn, still in pain, returned to another surgeon’s office the next afternoon after repeated calls to Klepper’s office went unanswered. She was hospitalized, plain film revealed perforation, she was treated with antibiotics for her septic condition and underwent surgery the following day.
Plaintiff’s expert, James Mann, a gastroenterologist and professor at the University of Virginia, testified that Klepper breached the standard of care by failing to respond to the precipitous drop in blood pressure which reflected shock and was the probable time of perforation or initial leakage into the peritoneum.
13
$1.029 Million
Design Works Interiors, Inc. v. Amy Ross
Type of case: Conversion
Court: Fairfax County Circuit Court
Attorneys: George O. Peterson, Tania M.L. Saylor, Miriam R. Epstein, Fairfax
Defendant Amy Ross was a fifty percent shareholder of Design Works Interiors, Inc. and the President of the company. The other fifty percent shareholder was Leslie Sargent. Ross and Sargent were close friends. Over a period of seven years, Ross began an ever increasing pattern of personal spending from Design Works Interiors, Inc.’s bank accounts and credit cards. The evidence at trial showed that she used corporate funds to purchase a Range Rover for her daughter, a deck for her home, family vacations, over $85,000 for clothing, $65,000 in groceries, etc.
Ross controlled the finances for the company and repeatedly rebuffed Sargent when Sargent inquired about increasing their salaries which were supposed to be equal. Sargent discovered the misuse of company funds in August 2016 when she reviewed a credit card statement showing that Ross had charged over $4,000 in personal expenditures the previous month. Such charges included charges related to several family vacations that month, personal shopping, groceries, etc.
Ross continued to stay at Design Works Interiors, Inc. through September 2017 when she resigned. In her resignation letter Ross blamed Sargent for the destruction of the business and loss of their friendship.
During the entire pre-trial discovery, Ross pleaded the Fifth Amendment and refused to answers questions regarding any expenditures. At trial Ross was called as an adverse witness and waived her Fifth Amendment privilege and admitted to the personal expenditures.
