We have previously written about the Fredericksburg orthopedic surgeon who failed to mark an operative site and as a result, operated on the front of a lady’s shoulder, instead of the back. His insurance company said “CLAIM DENIED.”

The local hometown paper in Fredericksburg has picked up on the story and here’s a link to it.

According to a Richmond federal court, a Virginia medical malpractice plaintiff can add court costs to his $1.8 jury verdict, even though it would push the award over the state’s cap on medical malpractice damages.  U.S. District Judge Robert Payne allowed the $2,706.88 in court costs, despite the defendant’s argument that the statutory cap prohibited the federal court from tacking on these costs.

This case began when Wendell Waggener was treated by Dr. Steven J. Oltermann, who allegedly failed to diagnose a colonic obstruction in a timely manner and perform emergency surgery.  Waggener sued Oltermann and his employer, Northern Neck Surgical Services.  The jury awarded Waggener $2 million, which was reduced to $1.8 million because of the damages cap.

The defendant objected to Waggener’s request for the court costs, because the judgment would exceed the limit on medical malpractice damages.  Payne didn’t see it that way.  He said that no matter how the issue was presented, federal courts have consistently held that taxing costs is an issue of federal procedure and not state substantive law.  The judge said that the federal cases brought up by the defendant didn’t address the administrative matter of taxation of costs.

This issue was a new one for the plaintiff’s attorney, Jonathan M. Petty.  He said he couldn’t find any federal or state court opinions regarding the taxation of costs.

According to allegations, a Tampa psychologist  billed a patient’s insurance company for her treatment, when it is believed that he was actually having sex with her.  As if that wasn’t bad enough, an investigation by the Florida Health Department also found that he repeatedly received prescription painkillers from the patient. Not surprisingly, the state department suspended his license.

In 1995, the female patient, who wasn’t named in the state’s report, saw Daniel R. Lerom for marriage counseling.  After the couple divorced, the woman continued to visit Lerom sporadically for counseling, but in August 2008, their sessions became more frequent.

Based on Florida’s investigation reports, Lerom stopped giving therapy to the woman in early February 2009 and they started a sexual relationship not long after.  Their relationship continued until May, when the psychologist’s wife found a text message between the two.

Lerom had charged the woman’s insurance company, Blue Cross Blue Shield of Florida, over $1,400 for “specialty consults,” when in reality, the two were meeting for sex.  He ended up maxing out her annual allowable number of psychotherapy visits.  After their relationship came to an end, Lerom told the woman that he refunded the money, but the state’s investigation showed that only $117.40 of the $1,400 had been paid back.

When issuing the suspension of Lerom’s license, Dr. Ana M. Viamonte Ros, Florida’s surgeon general, stated, “Dr. Lerom’s willingness to engage in sexual misconduct with a patient and to exploit her for the insurance proceeds as well as for her prescription medication demonstrate a serious defect in Dr. Lerom’s judgment and moral character.”

Things allegedly changed for 52-year-old Carol Johnson when she was a patient of Dr. Eleanor Deguzman-Berube and the Atwood Family Medical Center in 2003.  Johnson had undiagnosed diverticulitis, which is defined as a form of inflammation of the intestinal wall. The condition progressed into numerous abscesses and ultimately led to multiple surgeries.

Barry Taylor, Johnson’s attorney, said that she also suffered brain damage and can no longer work.  Previously, Johnson worked as a secretary and bookkeeper.  Based on the evidence presented in trial, she now has significant cognitive impairment and short-term memory loss.

Johnson’s medical bills reached $167,000 and her lost wages, which are based on her life expectancy, are estimated at $340,000.

The Circuit Court jury concluded that Johnson’s debilitating stroke was caused by the complications of the undiagnosed diverticulitis.  She was awarded $2.5 million, when only $2 million was requested.  However, due to Virginia’s cap on medical malpractice damages, $850,000 was taken from Johnson, reducing her award to $1,650,000.

Johnson isn’t the only victim who has been robbed of money in which the jury felt they were entitled. Hector Alvarez’s family was deprived of $1.15 million, after a jury awarded nearly $3 million in the undiagnosed perforated esophagus case.   What about Rita Talbert?  She was robbed of $2.25 million after a jury heard her case about being burned by a flash fire in the operating room.

Read the article, Tort Reform in Virginia? Another Robbery, to learn more about Carol Johnson’s case.

Ellen Dunston has been allowed to add new claims in her re-filed Virginia medical malpractice lawsuit following a nonsuit, even though the additional claims would have otherwise exceeded the statute of limitations.

Under Virginia law, a plaintiff is permitted one voluntary dismissal, which is referred to as a nonsuit.  When a nonsuit is taken, the plaintiff has six months to re-file the action.

This lawsuit is based on an event that took place in 2006.  Dunston had pursued medical treatment at the Loudoun Interventional Pain Center for her painful shingles.  According to Dunston’s complaints, Dr. Cecil Huang was the anesthesiologist who administered treatment, by injecting her with an epidural steroid.  Dunston suffered immediate reactions to the injection and was allegedly taken to a hospital.  She now claims that the shot caused her to become paralyzed from the chest down and that as a result, she is confined to a wheelchair.

Dunston filed her first medical malpractice suit against Huang in 2008 in Loudoun County Circuit Court.  She alleged inadequate monitoring and failure to provide “appropriate treatment and care.”  When Dunston re-filed her lawsuit in federal court, she added new claims of failure to obtain informed consent and failure to perform the appropriate procedure.

The defendant tried to get the case dismissed.  Since the lawsuit was filed outside the statute of limitations, which is two years, it would have been time barred, unless it was permitted due to the six-month extension period under the Virginia nonsuit statute.

After reviewing whether the added claims came from the same “action, transaction or occurrence” as the original lawsuit, the Alexandria federal judge decided to allow the case to move forward with the new claims.

The federal judge was right in allowing Dunston’s claims.  This nonsuit statute is a longstanding Virginia law.

A lawsuit filed in the Circuit Court for the City of Fredericksburg alleges that an orthopedic surgeon who was to operate to remove a cyst on the back of a woman’s shoulder, forgot where the cyst was located and operated on the front of the shoulder, allegedly causing unnecessary scarring and disfigurement.

The lawsuit alleges that the surgeon failed to take appropriate steps to mark the surgical site and then failed to awaken the patient and stop the surgery once he realized that he couldn’t remember where he was supposed to operate.

Remarkably, the surgeon’s medical malpractice insurance company took the position that the surgeon did no wrong and denied the patient’s attempt to settle the case.

More information about the Fredericksburg surgeon who has been sued is here.

A recent medical malpractice verdict in Fairfax County, Virginia, shows how Virginia’s version of “tort reform” steals from families. According to news reports, Hector Alvarez, a 52 year old husband and father, went to Inova HealthPlex in Springfield in July 2006. Earlier in the day he had eaten a steak and was now complaining of chest pain and difficulty swallowing. He reported that a piece of meat had gotten stuck in his throat and it felt like it was going “down the wrong way.”

In fact, he had a perforated esophagus, a medical emergency.

They did a number of tests, including a CT scan. This is not defensive medicine. This is textbook emergency room care.

The CT image was sent electronically to William Dunwoody, III a radiologist with Association of Alexandria Radiologists. Dunwoody was not at the Inova HealthPlex that night. Dunwoody reviewed the CT and reported that his opinion was that Mr. Alvarez was suffering from a “large hiatal hernia”. (A hiatal hernia is a condition in which a portion of the stomach protrudes upward into the chest, through an opening in the diaphragm.)

The pain continued and around midnight Mr. Alvarez was transferred to Inova Fairfax Hospital. It was not until 4:00 p.m. the next day that a surgeon finally looked at the CT scan and noted that it wasn’t a hiatal hernia at all but the potentially deadly perforated esophagus. Such a perforation is especially dangerous if left untreated for a full day.

As Alvarez was being prepared for surgery, he went into cardiac arrest shortly after the epidural anesthesia was started. That anesthesia was performed by a physician at Fairfax Anesthesiology Associates.

John Sellinger, Alvarez’s attorney, blamed the cardiac arrest on the fact that he had had an untreated and undiagnosed perforated esophagus for nearly 24 hours. Alvarez suffered irreparable brain damage before surgery could be performed and he died on July 17, 2006.

Before trial, the anesthesia group settled for $600,000. Such settlements are usually confidential but in the case of a wrongful death, they are public records.

Amazingly, the insurance company for the radiology group, ProAssurance, refused to settle. No offer. Nada. “We didn’t do anything wrong,” they said, by their actions.

A Fairfax County jury heard the evidence over a number of days and awarded just under $3,000,000 to Alvarez’s family.The incident happened in 2006 so there was a total cap on damages of $1.85 million. Alvarez made $100,000 and had two adult children.

Because of Virginia’s tort reform, his family was robbed of $1.15 million dollars. That money was taken away by legislators who, bowing to the interests of the insurance industry, including companies like the one that insured the “we didn’t do anything wrong” radiology group, have concluded that in 2006 the maximum award to any family in a case like this, no matter how many doctors contributed through their carelessness to this man’s death, was $1.85 million.

So, back to the radiology insurance company refusing to settle. Here’s what happens in a lot of cases with insurance companies like this. They gamble because they know there is no real downside if they lose the case. Once the anesthesia group settled the MOST the radiology insurance company would ever pay for causing Mr. Alvarez’s death was $1.25 million! Imagine that–only $1.25 million for causing this man’s death. Knowing that even if they lose, they pay a pittance to this man’s family, they gamble.

The insurance company puts Mr. Alvarez’s family (and, no doubt, Dr. Dunwoody) through the stress and grief of a trial. In any other state that didn’t have such a limited recovery in a case like this, I bet that this case would have settled.

ProAssurance has a reputation in the medical malpractice community of taking many cases to trial and frequently making no pretrial offer.

In Virginia a jury is never told of this arbitrary cap on damages and thus the work that they put into the case in deciding the appropriate amount of money to Award for the malpractice was in large part wasted.
Last year, Virginia’s tort reform in medical malpractice stole $2.5 million from a malpractice victim who was seriously injured when a fire broke out in the operating room. When we will wake up?

Dr. Ronald Poulin allegedly defrauded government-run health insurance programs out of $1.3 million.  Poulin, a 61-year-old cancer doctor who practiced for 35 years, was handed a jail sentence of over five years in federal prison.

A jury had found the veteran doctor guilty of one count of health care fraud, 26 counts of filing false health care statements and one count of altering records to obstruct the investigation.  During the trial, prosecutors had showed evidence that Poulin directed employees to alter, forge and destroy his records following the issuance of subpoenas by the inspector general offices of the Department of Defense and the Department of Health and Human Services.

Poulin was convicted of bilking Medicare and Tricare when he split drugs between two patients and charged them each for an entire dose, billed for higher amounts of chemotherapy drugs than what was given and billed for patient visits when he wasn’t even in the office.  Angela Zoubul, an FBI analyst, testified that the doctor got $790,000 over what he was entitled to receive due to $1.3 million in fraudulent claims made between 2006 and 2008.

Poulin’s license is still classified as active by the Virginia Board of Medicine, but not surprisingly, a board spokeswoman said that a felony conviction typically leads to automatic suspension following sentencing.  Virginia Hematology Oncology, Poulin’s practice, has been closed.

Insurance companies make a ton of money by delaying everything. They delay paying the bill you submit, hiding behind the “we need more information” umbrella. They delay responding to legitimate requests to settle meritorious malpractice cases.

In one case it took a surgeon’s insurance company months to respond to a demand when the doctor had clearly operated on the wrong body part. Amazingly, after months of “evaluating” the case, they said “no payment.” (That doctor is now facing a medical board inquiry.)

In another case the hospital and surgeons left a sponge a patient after surgery. We wrote a fair demand package and provided all of the records. We gave them 30 days to respond.

Didn’t even get the courtesy of a response, for over three months.

Their response? “We need more time–please don’t sue us.”

All of these delays allow the insurance companies to bank millions in investment income while injured party, the one who ends up suing, winds up being called a “liar, cheat and fraud” because he had the temerity to file suit.

Here is a very interesting transcript of a recent court hearing involving a hospital in Virginia. We have previously blogged about this case and have received a letter as well asking us to remove the blog post.

Lest there be no mistake about what actually happened, including the fact that the hospital’s attorney has actually filed a bar complaint about the attorney blogger he is litigating against, we have obtained the transcript of the hearing.

The judge said “no” to the hospital’s attempt to have the attorney remove the blog post. Read this interesting transcript about an attorney’s right to truthfully blog about a case and arrive at your own decision.