Virginia Lawyers Weekly VA Lawyers Weekly
In what some would call a “unicorn experience,” Virginia had a medical malpractice review panel hearing this year.
Review panels once were common as a procedural hurdle for many medical malpractice lawsuits, but they all but died out after the practice was made optional in 1993. There were two requested in 2017 and four in 2013, according to the Virginia Supreme Court’s administrative office.
The Virginia Code still calls for panels made up of two impartial attorneys and two impartial health care providers with a circuit judge to preside. The court maintains lists of lawyers and physicians ready to sit in judgment of a malpractice claim.
In a May 1 decision, a Fredericksburg Circuit Court review panel decided that the evidence showed that an orthopedic surgeon failed to comply with the appropriate standard of case.
If the decision by the patient’s lawyer to request a review panel was aimed at prodding the defense to settle, there was no immediate success. The Fredericksburg malpractice suit remains pending.
Spine surgery
The case arises from complications of back surgery, explained plaintiff’s counsel Steven M. Garver of Reston. Orthopedic surgeon Robert G. Squillante used pedicle screws to stabilize a spinal fusion for patient Julie G. Randles, Garver said.
The screws went through the bone and caused nerve damage, but the problem was not detected for a month, Garver said.
“By then, the nerve damage was significant,” the lawyer said.
Quick decision
Garver requested a review panel. He would not go into his reasoning, but he said he thought the negligence was clear.
“We thought with a review by two doctors and two lawyers, there would be a finding the doctor deviated from the standard of care,” Garver said.
For the patient’s case, Garver called only the defendant doctor. For the defense, the doctor testified again and called his own expert, according to Garver.
Garver said the panel took less than 15 minutes to render an opinion that the defendant was negligent. But the panel also found that the failure to comply with the standard was not a proximate cause of the alleged damages.
Garver said he never put on evidence or asked for a ruling on the cause of damages or the extent of damages.
“We didn’t really put on any evidence of it. We didn’t really go there,” Garver said.
Squillante and his practice are represented by Kimberly A. Satterwhite of Richmond. She was not available for comment
The panel was made up of neurologist Daniel M. Hardy of Richmond, internist Thienquang Dat Le of Fairfax, attorney Claire R. Pettrone of McLean and attorney Ronald William Stern of Alexandria. The presiding judge was Patricia Kelly, who normally sits in Hanover County.
Rare procedure
Review panels were promoted as a means of curbing baseless medical malpractice litigation. From 1976 to 1993, malpractice lawsuits were put on hold if a defendant health care provider requested a panel. Panel opinions are deemed admissible as evidence at trial.
The requirement was viewed by plaintiffs’ lawyers as a defense-friendly detour on the road to obtaining recovery for injured patients, because litigation was frozen until the panel rendered a decision.
In response, plaintiffs’ lawyers simply stopped participating in the panels, discounting any adverse opinions as based solely on defense evidence.
The Medical Society of Virginia – representing physicians – sought legislation that would require full participation by all parties. Instead, in 1993, the General Assembly simply dropped the rule that litigation had to wait until the panel delivered an opinion.
The number of panel requests sharply and steadily declined. Two requests were noted in 2017, but otherwise review panels were over by 2014, until the Randles case.
In 2017, the Supreme Court dropped the number of names to be maintained on lists of potential panel members. Where once the Virginia State Bar had to provide a list of 240 actively practicing attorneys to serve on review panels, the number now is 60.
“We are getting sufficient volunteers,” said VSB Executive Director Karen Gould.
She put out a call for volunteers in February of 2018, noting that one third of the names have to rotate off the list each year. But she said after a one-year hiatus, a willing volunteer can go back on the list again.
Instead of a list of 915 volunteer health care providers, the rules now call for 235 names. The names are provided by the Virginia Board of Medicine.
