Virginia Tort Reform Robs Another Family
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?
[...] 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 [...]
[...] 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 [...]