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Virginia’s million-dollar med-mal defense verdicts of 2017

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METHODOLOGY

The survey of “Virginia’s Million-Dollar Med Mal Defense Verdicts” survey is compiled from the Verdict & Settlement Reports published by our sister newspaper, Virginia Lawyers Weekly. In each of these cases, the amount the plaintiff sued for, or the final demand for settlement, was at least $1 million. The recovery in each was the same – zero, since the defense prevailed. The “size” of the verdict is based on the value of the demand. The 2017 survey features 8 verdicts. To qualify, a verdict must have been returned by a Virginia jury in 2017.

$5 Million
Patient’s pot use admissible at malpractice trial

Injuries alleged: Failure to diagnose a subarachnoid hemorrhage leading to a fatal ruptured aneurysm
Court: Lynchburg Circuit Court
Defense attorney: Walter H. Peake III, Roanoke

As reported in the June 12 edition of Virginia Lawyers Weekly: Defense lawyers could legitimately mention a patient’s use of marijuana in a
medical malpractice wrongful death trial because it was evidence of the level of her pain, the Supreme Court of Virginia has ruled.

The decision came despite objections from the plaintiff’s side that disclosure of marijuana use was more unfairly prejudicial than probative of any material fact.

Lawyers for a defendant physician assistant said the patient’s marijuana use bolstered their argument that the patient failed to mitigate damages when she did not promptly seek follow up care for a persistent and painful headache.

The Supreme Court this month affirmed a judgment in favor of the physician assistant, concluding the marijuana reference and a jury instruction on mitigation of damages were not improper.

Scarlet Scott went to a Lynchburg hospital emergency room on July 19, 2013, complaining of a four-day headache, the court wrote in its summary of the trial evidence. Scott reported her pain as 10 out of 10, unrelieved by hydrocodone and over-the-counter medication. Light reportedly made the headache worse.

She also had nausea, vomiting and dizziness upon standing, she said.

A doctor diagnosed tension headache, provided medication and told her to return to the emergency room if her headache returned or symptoms worsened.
On July 21, Scott went to an urgent care facility, saying her headache had returned the day before. Her pain level was eight or nine out of ten, she reported. Scott was seen by certified physician assistant Paul E. Foster who also diagnosed tension headache. He administered medication for the pain and other symptoms.

He told her to “go home and rest.” He said if the headache got worse, she should go to the emergency room.

In fact, Scott had a subarachnoid hemorrhage, according to her attorneys.

For eight days, Scott was mostly bed-ridden with head pain and sensitivity to sound and light, the court said. She took her prescription pills and various over-the-counter pain medications. She even tried smoking marijuana to alleviate her pain, the court said. She did not seek further medical care, however. She was found unresponsive on July 29. She had suffered a ruptured aneurysm, the court said. Despite hospital intervention, she died Aug. 3, 2013. She was 46. At trial, Circuit Judge F. Patrick Yeatts allowed Foster’s lawyer to cross-examine the husband about Scott’s marijuana use.

At closing, Foster’s lawyer said the testimony showed that Scott’s pain got worse. He compared her response to the discharge instructions that said, if her headache became worse, she should follow up at the emergency room. Yeatts also allowed an instruction that told the jury that a patient has a duty to minimize resulting dam-
ages and that failure to do so could reduce the amount of damages recovered.

The jury returned a defense verdict.

$2.1 Million
Man died of kidney failure, failure to monitor claimed

Injuries alleged: Wrongful death from alleged failure of internal medicine physician and geriatric nurse practitioner to appropriately monitor and correct acute kidney failure
Court: Virginia Beach Circuit Court
Defense attorneys: Rodney S. Dillman and Julie C. Mayer, Virginia Beach; Ronald P. Herbert, Richmond

This lawsuit was brought by the estate of a 75-year-old patient who was admitted to a rehabilitation center for short-term rehabilitation following a diagnosis of cellulitis in his lower leg. Less than one week prior to admission to the rehabilitation center, the patient had been hospitalized due to the cellulitis and diagnosed with acute renal failure, but after treatment at the hospital had returned to his baseline kidney function.

The patient was evaluated by the defendant internal medicine physician shortly after admission to the rehabilitation center. The physician performed a comprehensive evaluation, including review of available hospital documents and completing a thorough physical evaluation. Based on the patient’s recent history of kidney injury and his current medications, the internal medicine physician ordered that, among other issues, the patient’s kidney function should be closely monitored and his medications adjusted as necessary.

The patient was followed in the rehabilitation center by the defendant nurse practitioner, who saw the patient on two separate visits. The nurse practitioner closely followed the patient’s kidney function, which declined during his rehabilitation. The nurse practitioner discontinued one antibiotic, and ordered fluids for the patient when his kidney function worsened.

One week after his admission to the rehabilitation center, the patient was emergently transported to the hospital with decreased kidney function, and altered mental status. Less than one day following admission to the hospital, the patient suffered a PEA arrest and never regained function. The patient was removed from support and passed away at the hospital.

The plaintiff alleged that all defendants failed to appropriately monitor the patient’s kidney functions and failed to discontinue all nephrotoxic medications during the initial days of his rehabilitation. The plaintiff alleged that had the defendants stopped the nephrotoxic medications, the patient would not have required hospitalization and would not have suffered a cardiac event, which caused his death.

Defense experts countered that the treatment plan set in place by the internal medicine physician met the standard of care and that the nurse practitioner appropriately monitored the kidney function and made reasonable adjustments to the patient’s medications to address the changes. Furthermore, the defense experts and treating providers from the patient’s subsequent hospitalization identified an alternate cause of the patient’s kidney decline. Rather than being caused by nephrotoxic medications, the subsequent hospital records and expert testimony established that the patient suffered from abdominal compartment syndrome, wherein pressure in the patient’s abdomen prevented adequate blood flow to the kidneys. The defendants had identified the distention as an area of concern, but the patient had been recently seen by gastroenterology and surgical specialists who determined that intervention was not necessary.

After a six-day trial and deliberation by a jury for less than two hours, the jury returned a verdict in favor of all the defendants.

$2.050 Million
Plaintiff claimed delay in surgery exacerbated injury

Injuries alleged: Ongoing pain, loss of range of motion, and weakness
Court: Washington County Circuit Court
Defense attorneys: Neal H. Lewis and Brandy Burnette Balding, Johnson City, TN

Plaintiff alleged that he was misdiagnosed and received negligent treatment after a left biceps tendon rupture. After an injury at work, the patient was seen in defendant’s urgent care clinic. A physician assistant diagnosed a forearm and arm strain and referred the patient to the occupational medicine physician. The occupational medicine physician suspected distal biceps tendon rupture and referred the patient to an orthopedic surgeon. Treatment and scheduling approval issues led to an appointment 20 days after the injury.

Surgery was performed almost five weeks after the injury. The treating orthopedic surgeon documented prior to surgery that the delay in the referral would result in difficulties. After conclusion of post-operative treatment, the patient experienced suboptimal recovery. The treating surgeon documented the surgical delay caused the patient’s poor outcome. A second surgery was performed to improve the patient’s pain and disability, but did not result in anticipated improvement.

Plaintiff argued the defendant clinic, including a physician’s assistant, a physician, and the administrative staff, were negligent for failing to obtain timely operative treatment. Through testimony by his standard of care expert, causation expert, and treating orthopedic surgeon, the plaintiff argued there was a three-week window of opportunity for surgically repairing the rupture. The plaintiff’s standard of care expert testified the physician assistant misdiagnosed the injury. This expert also testified the physician failed to appreciate the existence of a three-week window of opportunity to repair the biceps tendon rupture, failed to order an urgent orthopedic referral, and failed to communicate to the staff working on the referral that it was time-sensitive. The standard of care expert also criticized the clinic staff for how they carried out the physician’s order for a referral and for not acting in a more urgent manner. Plaintiff’s experts testified the patient’s residual pain and weakness were caused by the performance of the surgical repair greater than three weeks after injury.

Standard of care experts for the defense supported the care by the physician assistant, occupational medicine physician, and the clinic employees. The defense causation expert testified that the patient’s outcome was a not a consequence of any delay in surgery. The defense’s physician experts all disputed the existence of a three-week window of opportunity to successfully repair the tendon rupture. After one hour of deliberations, the jury found in favor of the defendant.

$2 Million
Man sued dentist over teeth removal, unworkable dentures

Injuries alleged: Confidential
Court: Stafford County Circuit Court
Defense attorneys: Tracie M. Dorfman and Benjamin M. Wengerd, Fairfax

On July 27, 2011, plaintiff presented to the defendant general dentist complaining of loose teeth. The defendant diagnosed plaintiff with Stage IV periodontitis, recommended extraction of all but six teeth and dentures as a prosthetic. Plaintiff decided to move forward with the plan and underwent extraction on Aug. 31, 2011. Over the next four months, the defendant tried to fabricate workable dentures for the plaintiff, but ultimately the plaintiff left the practice unsatisfied.

Plaintiff claimed that the defendant should have referred him to a periodontist to salvage more teeth. He also claimed that the dentures were poorly made which led to TMJ disorder. As a result of the unworkable dentures and resulting pain, plaintiff claimed that he was forced to sell his small business at a loss. The defendant argued that because plaintiff’s periodontitis was so advanced, extraction was the only option. The defendant further argued that plaintiff’s TMJ disorder symptoms were preexisting and not caused by the dentures. And the defendant successfully proved that the business losses were unrelated to the alleged negligence.

The case was tried in Stafford County Circuit Court on April 10-12, 2017. The jury returned a verdict in favor of the defendant.

$2 Million
Patient died after chemotherapy, family alleges treating oncologist didn’t catch genetic disorder

Injuries alleged: Wrongful Death
Court: Henrico County Circuit Court
Defense attorneys: Kathleen M. McCauley and Samuel T. Bernier, Richmond

Patient died following one cycle of FOLFOX chemotherapy after a diagnosis of Stage IIIB colon cancer. It was later determined that Patient had a rare genetic mutation that affected his ability to metabolize 5-FU, the active agent in FOLFOX. Administrator alleged that Medical Oncologist failed to properly obtain Patient’s informed consent because Medical Oncologist did not reveal the possible existence of the rare genetic mutation and did not offer genetic testing to Patient. Administrator also alleged that the medical oncologist did not timely diagnose patient’s toxicity. Medical oncologist argued that the standard of care did not require informing patients of the possibility of the genetic mutation, and that testing for the mutation, while available, is not reliable and does not provide information useful for predicting toxicity. Medical oncologist further argued that Patient’s toxicity was timely diagnosed and properly treated. After three-and-a-half hours of deliberation, the jury returned a verdict for the medical oncologist.

$2 Million
Hand surgeon didn’t act negligently in treating patient

Injuries alleged: Loss of Function of Left Thumb after Flexor Tendon Graft
Court: Fairfax County Circuit Court
Defense attorneys: Michael E. Olszewski and Travis W. Markley, Fairfax

On August 15, 2012, plaintiff, a 23-year-old female, sustained a deep slice to her left thumb while working as a bartender. After initial care at the emergency department, the plaintiff underwent primary flexor tendon and nerve repair by the defendant hand surgeon on August 17, 2012. Four months later, after plaintiff lost range of motion in her thumb interphalangeal joint, the defendant hand surgeon performed a tenolysis on December 12, 2012. Two days after that, the plaintiff’s flexor tendon ruptured, necessitating a third surgery by the defendant on December 21, 2012. The defendant performed a tendon graft using the flexor pollicis longus tendon, running the graft from the distal phalanx and terminating it in the palm. Six weeks following the tendon graft, the plaintiff presented to another hand surgeon for a second opinion after developing contractures. She ultimately underwent a fusion of the interphalangeal joint in her left thumb, resulting in permanent flexion of that joint in an effort to preserve function.

Plaintiff filed suit in Fairfax County Circuit Court alleging the defendant hand surgeon and his practice breached the standard of care by negligently terminating the tendon graft in the palm during her Dec. 21, 2012 surgery. Plaintiff alleged that the defendant hand surgeon should have instead terminated the tendon graft in her wrist to avoid scarring, contractures, and the thumb in palm deformity that ultimately necessitated the later fusion procedure. Defendants denied the allegations and the case was tried starting on April 3, 2017.

Plaintiff’s liability expert was Waldo Floyd, III, M.D., an orthopaedic hand surgeon from Georgia. Dr. Floyd testified that the defendant breached the standard of care by incorrectly terminating the tendon graft in plaintiff’s palm, in the flexor sheath. Dr. Floyd also testified for the plaintiff on causation, asserting that terminating the tendon graft in the palm caused plaintiff’s flexion contractures. Plaintiff also called Michael Kessler, M.D., an orthopaedic hand surgeon at MedStar Georgetown University Hospital. Dr. Kessler testified to the interphalangeal joint fusion that he performed to address plaintiff’s flexion contractures.
Defense liability expert Gregory Degnan, M.D., orthopaedic hand surgeon from Charlottesville, testified that the defendant hand surgeon met the standard of care by terminating the flexor tendon graft outside the fibro-osseous canal of the thumb. Dr. Degnan concluded that the defendant hand surgeon’s selection of a tendon graft length that ended in the palm was reasonable because it terminated outside of the flexor sheath formed by the pulleys of the thumb. Dr. Degnan also testified for the defense on causation, contending that although there was no doubt that plaintiff suffered flexion contractures and scarring after the tendon graft surgery, those conditions were not caused by the surgery itself, but rather by the plaintiff’s failure to fully comply with hand therapy.

After a three-day trial and deliberations for an hour and fifteen minutes, the jury returned a defense verdict.

$2 Million
Plaintiff claimed failure to deal with nerve injury in hand

Injuries alleged: Ulnar Nerve Laceration
Court: Fairfax County Circuit Court
Defense attorneys: Michael E. Olszewski and Travis W. Markley, Fairfax

On May 9, 2013, plaintiff, a 46-year-old female, sustained two lacerations to her right wrist when she put her hand through a glass door. After transport to the emergency department, the defendant hand surgeon was called to evaluate the patient. The defendant’s limited hand exam revealed numbness on the ulnar aspect of the little finger, but was otherwise generally intact. On visual examination, the defendant noted that he could see that the ulnar artery was pulsating in the wound, but it was intact. The defendant sutured the lacerations and asked the plaintiff to follow up in the office within seven to 10 days for a detailed follow-up examination.

On May 17, 2013, the plaintiff presented to the defendant’s office. The defendant did not document any hand examination or results thereof. Instead, the defendant only noted the plaintiff’s demeanor, that sutures were removed, and that the plaintiff complained she had no money and the defendant therefore waived her bill.

On June 20, 2013, plaintiff presented to a plastic surgeon who suggested some concern for a nerve or tendon injury. Plaintiff saw another hand surgeon, on June 26, 2013, who did not find any sign of a nerve injury, but conceded that he could not conduct a complete physical examination due to plaintiff’s high degree of pain. In May 2014, plaintiff was definitively diagnosed with an ulnar nerve injury arising out of her original incident, causing deformity and serious functional deficits in the ulnar distribution of her dominant right hand.

Plaintiff filed suit in Fairfax County Circuit Court alleging the defendant hand surgeon and his practice breached the standard of care by negligently failing to perform an examination during her May 17 office visit. Plaintiff alleged that an examination would have revealed her ulnar nerve injury in time to allow for a primary repair procedure. Defendants denied the allegations and the case was tried starting on July 31, 2017.

Plaintiff’s liability expert was Waldo Floyd III, M.D., an orthopedic hand surgeon from Georgia. Dr. Floyd testified that the defendant breached the standard of care by failing to perform an examination on May 17, 2013. Dr. Floyd asserted that an examination would have revealed the ulnar nerve injury on that date, and the failure to diagnose it was strong evidence that no examination was performed. On causation, Dr. Floyd asserted that if the ulnar nerve injury had been detected, surgical intervention would have achieved substantial improvement in function and prevented the deformity ultimately suffered by the plaintiff.

Defense liability expert Harrison Solomon, M.D., orthopedic hand surgeon from Kensington, Maryland, testified that the defendant hand surgeon met the standard of care by performing an examination on May 17, 2013, that included necessary components of sensation and motor function examination. Dr. Solomon concluded that although the defendant hand surgeon’s lack of documentation was outside the norm, the fact of an examination and its reassuring findings were corroborated by testimony from the plaintiff, the defendant, and the hand surgeon who provided a second opinion on June 26, 2013. Dr. Solomon also testified for the defense on causation, contending that although there was no doubt that plaintiff suffered an ulnar nerve laceration at the time of her initial injury, it was a partial laceration with dim prospects for recovery even if detected on May 17, 2013, due to plaintiff’s status as a smoker.

After a three-day trial and deliberations for five and a half hours, the jury returned a defense verdict.

$1 Million
Man suffered cramps, pain, waited two days to go to ER

Injuries alleged: Serious bodily injuries, physical pain, mental suffering, embarrassment and inconvenience, and significant financial harm because of lost wages and substantial medical expenses
Court: Tazewell Circuit Court
Defense attorneys: Neal H. Lewis and Anne E. Howard, Johnson City, TN

Plaintiff, a mid-50s medical professional, presented to urgent care with complaints of nausea, gas, abdominal cramps and pain. The urgent care physician performed a detailed assessment and noted some mild tenderness to deep palpation on the right side, but what was otherwise a normal abdomen. Blood testing was ordered and the patient was advised to go to the emergency room if the condition worsened, was not better by the next morning, or if the blood test indicated an elevated white blood cell count. That evening the physician called the patient advising of an elevated white blood cell count and reiterated earlier instructions that plaintiff be evaluated further in the emergency room for the elevated white blood cell count, but the patient reported feeling better. The physician advised the plaintiff to go the emergency department if not better by the next morning, development of a fever, or any worsening systems.

After two days with no improvement, plaintiff, went to the ED because of a fever, and was diagnosed with a perforated sigmoid colon and acute diverticulitis. Transfer to a larger medical facility occurred and plaintiff underwent an open sigmoid resection with end colostomy and Hartmann’s pouch. Plaintiff remained with an open wound until the reversal of the Hartmann’s and primary anastomosis two months later. After recovery, plaintiff returned to normal employment, denying any significant ongoing complications other than increased risk for hernia or bowel obstruction. Plaintiff testified that the abdominal surgical scar is embarrassing and made tucked shirts uncomfortable.

At trial, plaintiff claimed through experts an immediate referral to the emergency department for further evaluation was necessary. Defense experts disputed that plaintiff needed to be referred to the emergency room at the time of initial presentation, the plaintiff’s abdominal exam was benign and there was no need for immediate referral based on the presenting complaints. The treatment plan was reasonable and consistent with the standard of care.

After one hour and 45 minutes of deliberations, the jury found in favor of the defendant.

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