Virginia medical malpractice cases are not easy to win.  In fact, many people make the mistake of believing that just because they didn’t get better after treatment or since they developed some side effect associated with a procedure, that they have a strong medical malpractice claim.  Unfortunately, that is often not the case.

In a medical malpractice suit, you have to prove that the doctor or hospital’s actions deviated so far from what is the accepted standard within the medical field that they would be considered negligent.  However, that’s not enough to win your case.  You also have to show that this negligence was the primary cause of your injury.

One of the key elements to winning a medical malpractice case is a physician expert witness. That means you need to find a doctor in the same specialty as the negligent physician who is willing to testify that the conduct fell below accepted standards.  These witnesses are not always easy to find and when you do locate one, don’t be surprised by how expensive it will be.

Physicians are usually reluctant to testify against fellow medical professionals. Therefore, it is sometimes necessary to bring in physicians from other parts of the country, which ends up increasing the cost.

For more information regarding medical malpractice suits, order your copy of Virginia medical malpractice attorney Ben Glass’s book, Why Most Medical Malpractice Victims Never Recover a Dime.

Dr. Stephen Smith, Carilion Clinic’s vice chairman of surgery, has said that anything he said to anesthesiologist, Dr. Bradley Cashion, is protected free speech under the First Amendment. Dr. Smith is being sued for defamation.

On December 29, Dr. Cashion of the Anesthesiology Consultants of Virginia, filed a civil lawsuit claiming that Dr. Smith accused him of euthanizing a patient who died during surgery in November.  Dr. Cashion had other examples of alleged defamatory comments made by Dr. Smith, including one statement that he “gave up” on a patient.  He is pursuing $2.35 million in compensatory and punitive damages.

According to Paul Beers, who is representing Dr. Smith, “all of these alleged statements are matters of opinion and hyperbole.”  He argued in court documents that opinions are protected speech.  Mr. Beers went on to say that “Dr. Smith pleads that he made no false assertions or fact concerning Dr. Cashion.”

Dr. Smith’s lawyer has requested that the suit be dismissed and that Dr. Cashion pay for legal fees.  If he is not able to get the case dismissed, Dr. Smith has requested that he receive a jury trial.

The Roanoke Times reported that Dr. Cashion’s attorney, Scott Austin, hasn’t responded in court to the latest documents.

A South Richmond woman who pleaded guilty to one count of healthcare fraud and one count of aggravated identity theft, has been sentenced to 10 years in prison by U.S. District Judge Henry E. Hudson.

It is believed that 45-year-old Iris F. Allen, a single mother of two, defrauded as much as $1.3 million from a state fund for children who have lifelong birth injuries.  According to investigators, Ms. Allen falsified or inflated invoices for handicap-accessible vans and housing renovation work.  Apparently, she established two fictitious companies, including a design firm and van-conversion firm.

Judge Hudson described how the money that Ms. Allen defrauded was spent.  Allegedly, she spent $200,000 for clothing and jewelry, $108,000 for household goods, $12,000 for electronics, $35,300 for vehicles and nearly $20,000 for shoes and handbags. Ms. Allen has been ordered to start making restitution once she leaves prison.  Keep in mind that the fund she stole from was supposed to go toward the care of children injured at birth. At this point, only about $8,000 has been recovered.

Ms. Allen’s attorney, Arnold Henderson, told the court that no families went without benefits due to the theft.  Later he mentioned legislative studies that showed a lax program supervision and tens of millions of dollars in investment losses.  However, this statement wasn’t as surprising as something else he said – “there has been an environment there that created an opportunity for Iris to become someone other than who she really is.”

A unanimous verdict was made in favor of a plaintiff following a four-day trial involving medical malpractice.

The plaintiff, Shannon E. Taylor, was awarded $3 million in a Virginia medical malpractice lawsuit. The plaintiff’s attorneys, Barbara S. Williams, Cory R. Ford and Roger T. Creager, should be congratulated for the success with this case.

Dr. Katherine Averill and Winchester Womancare were found liable for Ms. Taylor’s injuries that were sustained during a hysterectomy in July 2007.  The surgery was performed at Winchester Medical Center.  According to the complaint that was filed, Dr. Averill “negligently, grossly negligently and recklessly breached her duty of care to the Plaintiff Taylor” during and after Ms. Taylor’s procedure.

Dr. Averill was accused of using material from the anterior rectal wall instead of peritoneal tissue, to repair the vaginal cuff after Ms. Taylor’s uterus was removed.  As a result, the plaintiff suffered lacerations and other injuries.

The lawsuit also states that before completing the procedure, Dr. Averill didn’t sufficiently determine suture placement.  Supposedly, she also didn’t take appropriate steps to “follow up with, treat and timely remedy Taylor’s condition, status and injuries.”
Fairfax lawyers, Richard L. Nagle and Tracie M. Dorfman, are representing the defendants.  According to Mr. Nagle, they will likely file a motion to set aside the jury’s verdict or reduce the jury award, so that it falls within the statutory limit.

Unfortunately, this lawsuit is another example of a malpractice victim who will be robbed because of Virginia’s statutory cap on medical malpractice damages.  Despite the fact that the jury decided on a number that they believed would be fair for the victim, the law will prohibit her from seeing that full amount.

If you have read this blog before, you have probably heard us talk about how Virginia medical malpractice cases are not easy to win.  You have to show that the medical provider deviated so far away from what is accepted as the “standard” diagnosis and treatment that they were “negligent” under Virginia law. You also have to prove that the doctor’s negligence was the primary cause of the injury.

Malpractice insurance companies have standard defenses they often use, which include the following:

The injury could not have been prevented, as it was a result of the initial condition.
The injury was due to the patient not following the doctor’s advice.
The risk of the particular injury was an accepted one.
Someone else caused the injury.
A previous illness or condition led to the injury.

To have a successful claim, you are going to have to prove that there is a clear connection between the defendant’s misconduct and the injury you have sustained.

For more information regarding medical negligence claims, read Virginia medical malpractice attorney Ben Glass’s book, Why Most Medical Malpractice Victims Will Never Recover a Dime.  This book discusses the factors involved in medical malpractice cases and answers many of the commonly asked questions.

Contributory negligence isn’t a word you most likely use in your everyday vocabulary.  It’s amazing how many legal terms you learn when researching information relating to your case.

If you have been harmed by medical malpractice in Virginia, then you need to familiarize yourself with contributory negligence.  Virginia is one of only a few states in the country that still uses this centuries-old law.  Contributory negligence can be defined as “a doctrine of common law that if a person was injured in part due to his/her own negligence (his/her negligence “contributed” to the accident), the injured party would not be entitled to collect any damages (money) from another party who supposedly caused the accident.”  This definition basically means that if you were careless in any way, which contributed to your injury, you probably won’t be able to recover damages.

Under contributory negligence, your doctor could be 99 percent responsible for your injury and you might only be 1 percent responsible, but you still won’t be able to recover a dime.  This doctrine hardly seems fair, but it is the law.

For more information regarding Virginia medical malpractice lawsuits and why these cases are so difficult to win, order a copy of Ben Glass’s book, Why Most Medical Malpractice Victims Never Recover a Dime.

We have previously written about the Fredericksburg orthopedic surgeon who operated on the wrong body part, admitted as much in his medical records but who (through his insurance company) then said “I didn’t do anything at all wrong.”

Now his attorneys have filed an answer to the Complaint. They admit that the medical records accurately reflect what we said they did in the complaint, but, again, they say “the doctor didn’t do anything wrong.”

Here’s my question: is this frivolous or just “good defending”?

There is a statute of limitations for filing a medical malpractice lawsuit in Virginia.  The statute of limitations refers to the timeframe you have to bring a legal action.  Keep in mind that this is a strict time limit and if you miss it, you might not be able to recover anything in a medical malpractice suit.

In Virginia, the statute of limitations for a medical malpractice claim is two years.  The question that most people have is “two years from what?”  There is something known as the “continuing treatment rule” that exists in Virginia.  Under this rule, your actual time to file a claim may be longer than two years from the specific date of the negligence.  This issue tends to get complicated, so it is important that you talk with a Virginia medical malpractice lawyer who will be able to tell you when your statute of limitations expires.

If you wait until your statute of limitations is almost up before filing your lawsuit, you are taking a risk.  Attorney Ben Glass has seen this scenario – where a lawyer waits until the last minute to file the lawsuit, only to find out that the wrong defendant was named or someone else was to blame for the malpractice.  He has even seen attorneys wait to file a lawsuit in hope that the insurance company will settle first.  That is also a risky practice.

Order your copy of the book, Why Most Medical Malpractice Victims Never Recover a Dime, for more information.

We hear a lot in the news about medical malpractice tort reform. Did you know that you don’t have to wait for a law to pass in your state before participating? Amazingly, many people did not know that you can actually volunteer your family for tort reform.

If you and your family would like the benefits of tort reform you can use this official volunteer for tort reform form.

Choosing the right Virginia medical malpractice attorney to represent you is no easy task.  Flipping through the huge attorney section in the Yellow Pages doesn’t really provide you with any insight.  You might as well close your eyes and randomly point to an ad.

One of the most important decisions that you will make when it comes to the outcome of your case has to do with selecting a lawyer.  Fairfax medical malpractice lawyer Ben Glass provides a list of great questions to ask any potential candidate in his book, The Truth About Lawyer Advertising.  These are things that you should find out before hiring someone.

You may be worried that you will offend an attorney with your series of questions, but the truth is that most lawyers will not be insulted.  Instead, they will most likely welcome them, because it shows that you have taken the time to educate yourself.

The list that is included in the book is quite extensive, but here is a brief sample of what you should inquire about when talking with a medical malpractice lawyer:

1.    How many years have you been in practice?

2.    Do you have actual experience handling my type of case?

3.    Where can I read about your other cases?

4.    Are you listed in Best Lawyers in America®?

5.    Are you board certified by any state or nationally recognized organization?

To obtain the full list of questions, order your copy of Ben’s book at http://www.thetruthaboutlawyerads.com/.  The book is free for Virginia residents.