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$1.6 million medical malpractice verdict upheld

Virginia Lawyers Weekly//February 16, 2023

$1.6 million medical malpractice verdict upheld

Virginia Lawyers Weekly//February 16, 2023

There was sufficient evidence of causation to support a jury verdict for appellee in this medical malpractice suit against a practice group and a doctor.


“Emergency Physicians contend that the trial court erred in denying their motion to strike Hanger’s evidence because the evidence failed to establish causation. We disagree. …

“[T]he jury could have concluded from the evidence that Hanger was suffering from hyponatremia, the symptoms of which all the experts agreed included muscle weakness, dizziness, altered mental status, and seizure.

“The jury could also have concluded, based upon all the evidence, that, as a result, the untreated hyponatremia proximately caused a seizure resulting in the fall causing Hanger’s TBI [traumatic brain injury].

“Even though the expert opinions offered by Emergency Physicians and Hanger conflicted on whether a hyponatremic seizure caused the fall, the jury could have concluded, as it did, based on three experts called by Hanger during her case in chief, that the seizure caused the fall and resulting TBI.

“Moreover, the conflicting expert testimony on causation alone cannot support a finding that the trial court erred in denying the motion to strike since the evidence on causation presented by both Emergency Physicians and Hanger was sufficient to submit to the jury for resolution.”

Medical treatment

“Emergency Physicians also contend that Hanger failed to introduce sufficient evidence of either the medical treatment Hanger should have received or whether that treatment would have prevented Hanger from suffering a TBI. We disagree. …

“[T]he blood test performed on Hanger prescribed by Emergency Physicians indicated that Hanger was suffering from hyponatremia.

“As a result of the failure of Dr. Raines to transcribe the hyponatremia diagnosis in the emergency department notes, the jury could have reasonably concluded that Dr. Raines failed to diagnose the hyponatremia revealed by the blood test and, as a result, the hyponatremia remained untreated for twelve days.

“In the alternative, the jury could also have reasonably concluded based on the expert testimony of Dr. Serra that even if Dr. Raines diagnosed the hyponatremia on March 16, she failed to properly treat the hyponatremia by admitting Hanger to the hospital to raise her sodium levels.

“Therefore, whether or not the hyponatremia was properly diagnosed on March 16, the expert opinion of Dr. Serra that Hanger should have been admitted to the hospital and treated to raise her sodium level on March 16 instead of being discharged from the emergency department with only instructions to follow up with her primary care physician, presented sufficient evidence for the jury to find that the treatment plan proposed by Dr. Serra, if followed, could have prevented the seizure and fall.”

Proof of damages

“Emergency Physicians next contend that the trial court erred in denying their motion to strike because Hanger failed to establish any damages resulting from the negligence alleged. We disagree. …

“Dr. Hansen, an expert witness, testified that he evaluated Hanger’s mental status in August 2018, after the injury, and based thereon, opined that Hanger was ‘quite impaired.’

“Dr. Hansen also testified that his subsequent evaluation only confirmed his initial opinion that Hanger’s mental impairment affected her memory and her cognitive abilities in general. …

“Duzant-Boyette, a lay witness, also testified that she had known Hanger both before and after her TBI in her role managing seniors’ programs for the City of Virginia Beach Parks and Recreation Department.

“She testified that before the injury, Hanger had been pleasant, social, and energetic but after the TBI, Hanger was argumentative, impatient, and withdrawn.

“Hanger’s husband, Kurt, also testified that after the TBI his wife did not engage in her prior activities such as driving, taking care of their grandchildren, and managing the couple’s rental properties.

“As a result of both the expert and lay testimony, the jury could have reasonably concluded, based on the evidence, that Hanger was injured and permanently impaired as a result of the failure of Emergency Physicians to diagnose or properly treat the hyponatremia.”

Venire list

“Emergency Physicians next contend that the trial court abused its discretion when it denied their motion for a continuance as a result of not being provided a jury venire list until the day before trial. We disagree. …

“Emergency Physicians argue that their inability to conduct any research regarding prospective jurors by itself constitutes prejudice. However, on brief, they fail to articulate any specific prejudice they suffered as a result of both parties receiving the jury venire list the day before trial instead of three business days before trial. They also fail to articulate why this mutual inability to research jurors could not have been adequately accomplished during voir dire[.]”


Emergency Physicians of Tidewater, et al. v. Hanger, Record No. 0121-22-1, Feb. 7, 2023, 2022. CAV unpublished opinion (Athey Jr.). From the Circuit Court of the City of Virginia Beach (Mahan). A. William Charters, C. Thea Pitzen, Jeffrey S. Kiser for appellants. L. Steven Emmert, Richard N. Shapiro, Eric K. Washburn for appellee. VLW 023-7-076, 26 pp.

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