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Hospital settles case amid spoliation dispute

hospitalbed_mainA Virginia hospital agreed to pay $1.75 million to resolve claims that it failed to take proper precautions to prevent a patient’s fall. The patient reportedly suffered tetraplegia and traumatic brain injury, incurring millions in current and future medical bills, according to a settlement report from the patient’s lawyers. The Virginia medical malpractice cap for the case was $2.2 million. The hospital earlier wrote off post-fall medical bills for the patient, the settlement report said. The settlement came as the parties awaited a judge’s ruling on the patient’s request for sanctions based on the hospital’s handling of a bed alarm and alleged charting irregularities. Fishing accident

Information about the case came from a settlement report provided by the plaintiff’s counsel, documents filed in court and from an Oct. 31 hearing on the sanctions motion. The 67-year-old plaintiff, a retired dairy farmer, broke his neck when he fell down a rocky riverbank while fishing with his son. Until the accident, the man often took part in family activities, his attorneys said. Admitted to a trauma center at Carilion Roanoke Memorial Hospital, the patient was treated with physical therapy and medication.

Bed alarm at issue

Plaintiff’s lawyers contended the hospital failed to provide adequate fall protection. The hospital countered that it appropriately evaluated the fall risk and took proper precautions, including setting a bed alarm to notify nurses if the patient left his bed.

The bed alarm – if set – did not sound when the patient got out of bed on Sept. 20, 2015. Hospital staff found the man face down on the floor of his room that evening.

The resulting injuries, including spinal cord damage, left the patient a tetraplegic with minimal use of his arms and paralysis of his legs. He also suffered traumatic brain injury.

The hospital contended that the bed alarm was set, but malfunctioned. Attention focused on that bed alarm since the hospital conceded that it had no documentation on what, if anything, was done to evaluate the bed and the attached bed alarm.

The plaintiff’s legal team claimed a nurse falsified records after the fall to show that the bed alarm had been set.

Sanctions motion

“They should not be allowed to blame the bed they lost or make reference to a work order or notes they destroyed,” the patient’s lawyers argued in a motion seeking sanctions against the hospital.

“The sensitivity setting that they chose or didn’t choose is essential to our case,” plaintiff’s lawyer, Gregory D. Habeeb of Roanoke, said in a hearing.

The patient’s lawyers asked the judge to either decide liability in favor of the patient or limit the hospital’s defenses.

“I am inclined to find that there has been spoliation,” said Roanoke Circuit Judge J. Christopher Clemens after the hearing. “I do not believe entire summary judgment is warranted. I will look at an inference or presumption,” the judge said. While awaiting the judge’s ruling, the two sides mediated the case with retired circuit Judge J. Michael Gamble of The McCammon Group. No agreement came from the initial session, but Gamble continued to work with the parties.

The case settled about six weeks before trial, according to the settlement report.

The plaintiff was represented by Habeeb and Charles H. “Trey” Smith III and Evans G. Edwards of the Gentry Locke firm in Roanoke.

The hospital was represented by Paul C. Kuhnel of Roanoke.

The reported difficulty in settlement spurred Habeeb, a state delegate, to propose a mechanism to encourage health care providers to settle high-damages cases, despite the fact that their exposure may be fixed at a much lower limit.

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