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Med mal contrib decision will stand

A judge’s decision to allow a con­tributory negligence defense in a medical malpractice case has been upheld by the Supreme Court of Virginia.

The court last month decided not to take up an appeal in the case of an emergency room doctor sued over the death of a college student. A jury rejected liability in 2015 af­ter hearing evidence that the patient may have intentionally misled the doctor about medications he had taken.

The court “is of the opinion there is no re­versible error in the judgment complained of,” the court said in a Feb. 1 order refusing the petition for appeal.

The order validates the 33-page March 7 opinion letter of Roanoke Circuit Judge Charles N. Dorsey in Harris v. Schirmer.

Dorsey ruled that the jury properly could consider whether the patient shared blame for his own demise. Lawyers for the defen­dant doctor contended the patient intended to commit suicide through a combination of medication.

The facts met the key criteria that the pa­tient’s alleged negligence must be contem­poraneous with the alleged negligence of the medical provider, Dorsey said.

In seven previous medical malpractice cases, the Supreme Court had rejected theo­ries of contributory negligence.

The Harris case had been watched by rep­resentatives of the Virginia medical commu­nity who hoped for validation of the contrib­utory negligence defense in a proper case.

The medical providers were represented by Joel M. McCray and Ruth T. Griggs of Richmond. The patient’s family was repre­sented by Monica T. Monday, Anthony M. Russell and Benjamin D. Byrd of Roanoke.

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