Virginia Lawyers Weekly released their Virginia’s Largest Verdicts list for 2009 recently. Medical malpractice cases were represented at spots number 4, 5, 9, 11, 13,15, and 20.

The “amount” numbers for the medical malpractice are somewhat skewed, however, due to Virginia’s current medical malpractice cap.

The cap statute reads:

“In any verdict returned against a health care provider in an action for malpractice where the act or acts of malpractice occurred on or after August 1, 1999, which is tried by a jury or in any judgment entered against a health care provider in such an action which is tried without a jury, the total amount recoverable for any injury to, or death of, a patient shall not exceed $1.5 million. The maximum recovery limit of $1.5 million shall increase on July 1, 2000, and each July 1 thereafter by $50,000 per year; however, the annual increase on July 1, 2007, and the annual increase on July 1, 2008, shall be $75,000 per year. Each annual increase shall apply to the act or acts of malpractice occurring on or after the effective date of the increase. The July 1, 2008, increase shall be the final annual increase.” Va. Code 8.01-581.15.

This means that any med mal verdict over $2 million is certain to be reduced, the question is by how much. For example, the $7 million medical malpractice verdict listed at #5, Butler v. Trivedi, was reduced to $1.8 million meaning that the incident took place between July 1, 2005 and July 1, 2006. Each of the top 5 medical malpractice cases were similarly reduced by the statute, effectively nullifying the jury’s valuation of the claim.

Many critics of the Virginia medical malpractice cap criticize the arbitrary nature of such statutes. One such critic, Fairfax attorney Ben Glass, says “It’s unfortunate that the people of Virginia have their right to a jury limited by these caps. In every other type of personal injury case in Virginia there is no limit to recovery and the award is based on a valuation of the case by a jury of ordinary citizens.” Glass continued, “These juries that come to these verdicts are not out to get doctors or anything, they’re simply doing their job of evaluating a case. A job that the legislators in Richmond feel they can do better, even without ever sitting in on the case.”

Glass’ comments are echoed by many Virginia attorneys who are opposed to so-called “tort reform” but they will have to wait at least a year for any changes to the cap as the Virginia Trial Lawyers Association and healthcare associations in Virginia have agreed to table the issue until 2011.

A patient suffering from acute chest pain, diaphoresis (heavy sweating associated with physical distress), and pain radiating to the left arm with numbess. He was taken by ambulance to the hospital where he later suffered a myocardial infarction (heart attack). Despite the fact that catheterization was called for by the EMT the patient did not undergo the procedure until 13 hours after admittance to the hospital. In that time he suffered the heart attack.

The experts enlisted by the plaintiff’s attorney were prepared to testify that heart catheterization should have occurred within an hour and a half and that 13 hours between admittance to the procedure was well outside the standard of care. As a result of the heart attack the patient’s heart was permanently damaged and now will only pump blood at less-than-half the rate of a normal heart.

The case, brought by the plaintiff and his attorney, R. Lee Livingston of Charlottesville, recently settled for $690,000.

We hear all the time the complaint that lawyers are “destroying” the economy or chasing doctors out of town or increasing the cost of medicine. I see very few blog posts, news articles or critiques of the common practice of the insurance industry in frivolously denying claims on the hope that the plaintiff or her attorney will find the case too expensive to pursue and, hopefully, they will go away.

We are investigating a claim right now involving a Fredericksburg, Virginia orthopedist who:

1. decided to do an operation to remove a small lipoma on the back of our client’s shoulder;
2. once the surgery started he couldn’t figure out whether he was supposed to be operating on the front or the back;
3. he thought about canceling the surgery because he couldn’t figure it out and, since the patient was already anesthetized, he couldn’t ask her;
4. he decided against canceling the surgery and, instead relied on his “memory” of what the MRI said (he was wrong and the report telling him he was wrong was right in the file);
5. He then went and got the MRI, but misread it;
6. He went ahead and operated on the wrong side of the shoulder and when he couldn’t find the lipoma he get digging deeper and deeper;
7. He finished the operation and never did what he was supposed to do.

The patient ended up with one unnecessary surgery, lots of bruising, unnecessary scarring and needing additional care in the form of physical therapy;

(By the way, all of the above comes from the doctor’s own notes, not anything we are “guessing” about.)

The next day, during an office visit, he apologized to the patient, admitted he was wrong and offered to do the right surgery when he got back from vacation (which he was leaving for the next week.) –she’s no fool, though…what he did was very, very dangerous and she opted to have the lipoma removed later by a general surgeon (why was an orthopedic surgeon removing a lipoma anyway?)

This young lady did everything right. She made a very reasonable proposal to the doctor’s insurance company.

How–you say–could they possibly deny this claim.

They did. In a terse letter that explained nothing, the doctor’s insurance, company, (one that prides itself on taking every single case all the way through trial) said “we didn’t do anything wrong.”

The next time you see anyone writing anything about tort reform and plaintiff’s lawyers and “opportunistic patients” please drive them to this blog and get them to comment. I’d love to hear what they have to say about this.

By the way, we’ll release the name of this doctor once we file the case. We’ll also be filing a complaint with the Virginia Board of Medicine.. Again, by this doctor’s own words, he engaged in a very, very dangerous activity by starting a surgery he knew he should have canceled.

It is tragic when a patient goes to the hospital for one problem then sustains an injury from an accident that happens while in the hospital. Falls in hospitals are more common than you can imagine. Here is a case from the Supreme Court of Virginia where a patient fell and the hospital was forced to disclose its internal procedures and manuals that should have been used to prevent falls.

As amazing as it sounds, doctors sometimes forget to do a part of an operation. You can imagine how this happens, especially if they’ve got surgeries backed up, one after another, at the local hospital.

Is that malpractice? Can you recover damages. Here is an interesting case decided by the Supreme Court of Virginia that allowed a cases against a doctor to proceed when the doctor had forgotten to do a part of a surgery and the claimant had to have another surgery.

This is slightly different from wrong-sided surgery, which also happens.

It’s horrifying to imagine that a resident of a nursing home can be victimized. The question sometimes arises whether such a case is governed by Virginia’s medical malpractice act. After all, is this “medical malpractice” at all? In a 2006 case against Woodbine Nursing home (Alexandria, Virginia) the Supreme Court of Virginia ruled that such a case is not governed by the Virginia Medical Malpractice Act.

The Supreme Court of Virginia’s decision on this sexual assault in a nursing home case is here.

Dr. William E. Hurwitz, of 2004 Federal drug-trafficking trial fame, was the defendant in a recent civil suit out of Prince William County. Dr. Hurwitz agreed to pay the Estate of Mary Nyea the sum of $225,000. Nye was a patient of Hurwitz before his incarceration in 2003. Nye was being treated for pain from a back-condition and was prescribed Oxycontin.

Nye began experiencing abdominal pain in 2002 and Hurwitz continued her course of Oxycontin to manage the pain. The suit alleged that Dr. Hurwitz was negligent in that he prescribed continued Oxycontin to treat both the back pain and the abdominal pain without ever diagnosing the cause of the latter. After the doctor was incarcerated he advised Nye to find another physician or to decrease her Oxycontin intake. However, because he did not refer her to a specific doctor she was still considered his patient despite his incarceration.

Ms. Nye passed away from pancreatitis that the plaintiff argued would have been prevented if the defendant had not violated the standard of care by managing the pain as opposed to diagnosing its cause. The defense contended that her pancreatitis could not have been detected and that by telling her to seek other medical assistance and to reduce dosage that she was no longer his patient.

For more on his criminal exploits you can visit Dr. Hurwitz’s Wikipedia page.

According to published reports, Charlottesville attorney Lee Livingston has settled a case against an othopedic surgeon who did back surgery, but operated at the wrong level. This, of course, necessitated a brand new surgery. The case reportedly settled for $350,000.

Its amazing that in 2009, doctors are still operating on the wrong part of the body. Isn’t that what they made CT and MRI scans for?

Remember, each case is different. Your case is unique and this settlement that Lee got for his client is not an indication of what you may receive. You should consult with an experienced medical malpractice attorney in your area.

Ben Glass is the author of “Why Most Virginia Malpractice Victims Never Recover a Dime”

According to published reports, a Fairfax Circuit Court jury has awarded the estate of a former employee of Inova Fair Oaks Hospital nearly $2.25 million dollars following and operation to repair a failed Nissen fundoplication.

The verdict, awarded against Barry Walter, M.D. and Virginia Surgery Associates, was later reduced to $1.85 million to comply with Virginia’s “doctor and insurance company protection” law.

The patient was a single mother who left a 17 year old daughter. The case involved the alleged misuse of a device known as a Autosuture ProTracker. It was alleged that this device ruptured a vein near the heart, causing bleeding, followed by cardiac arrest.

The defendant denied any responsibility and there was no offer made on behalf of the defendants before trial.

The case was handled by attorneys Michael Shevlin and Tom Smith.

Remember. Each case is unique. These attorneys did a fantastic job but the result obtained is not an indication of what you may obtain in your case. You should consult with an experienced, board certified attorney in your area.

Apparently, surgery that occurs on the wrong patient or the wrong side happens more often than what is reported in medical literature.  According to the Archives of Surgery, the general media reports more about wrong side surgery than what is published in medical literature.

The article published in the Archives of Surgery analyzed numerous databases that showed that these cases occur across all specialties, with high numbers in orthopedic and dental surgery.  The analysis of wrong side/wrong site, wrong procedure and wrong patient cases suggested that a common factor was recurrent systemic failures.  Researchers concluded, based on their findings, that about 1300 to 2700 of these cases occur every year in the United States.

Reporting wrong site and other similar cases is virtually nonexistent, making reports in the press more common than reports in medical literature.  The article attributes this fact to “shame.” The conclusion made by the researchers states that these cases “are more common than health care providers and patients appreciate.”

The article suggests that these cases are preventable, which seems pretty obvious.  Some of the recommendations to prevent wrong side/wrong site, wrong procedure and wrong patient cases include using new and innovative technologies, reporting the cases and learning safety initiatives.

To learn more about medical malpractice, order Ben Glass’s book, Most Medical Malpractice Victims Never Recover a Dime.