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Permit No. 99

Medical Law Report


VIRGINIA

LEGAL NEWS FOR THE MEDICAL COMMUNITY

Volume 13, Number 4

Docs recovery
is reduced for
unclean hands
A doctors long-running dispute with a consultant hired
to help him buy a medical
practice turned into a battle
of the experts, as the doctor finally got to try his claim
for damages in Alexandria
federal court.

n See RECOVERY on PAGE 19

MAY 2016

Staff infection:
Patient claims
medical worker
spread illness

By Deborah Elkins

The case
had
twice
been
sent
back
from
the 4th U.S.
Circuit Court
of Appeals,
since it was
first filed in
2011.
Last
June,
the
federal
ap- JUDGE CACHERIS
peals court
reversed judgment for the consultant hired by the plaintiff,
Dr. Petr Bocek, and ordered the
Alexandria court to enter judgment finding the consultant liable for breach of a duty of loyalty
to his former client.
At his December trial on damages, Bocek asked the court to
impose a constructive trust on the
assets of the Allergy Care Centers
Practice and to award him compensatory and punitive damages,
as well as attorneys fees.
Boceks expert valued the allergy practice at $2.2 million in
2011 and said the doctor lost between $1.2 and $1.3 million by

Address service requested


Virginia Medical Law Report
411 East Franklin St., Suite 505
Richmond, VA 23219

By Deborah Elkins

Challenge to balance
billing hits hospital
By Peter Vieth
For what may be the first time in
Virginia, a judge has ordered a
hospital to slash its balance billing charges by 75 percent to reflect the hospitals usual write-off
for uninsured patients.
The decision is a rare judicial rebuke
to the common hospital practice of billing full rate for patients whose insurance
plans do not have reimbursement agreements with the hospital.
The judge said a contract signed by a distraught emergency room patient was invalid and he chided the hospital for treating
its list of charges as double secret.

Surprise bill

The court dispute arose after Glenn


Dennis a Martinsville banker received what is sometimes termed a surprise medical bill.
He is not alone. A recent Kaiser Family
Foundation survey found that among insured, non-elderly adults struggling with
medical bills, charges from out-of-network providers were a factor about onethird of the time.
In seven out of 10 such cases, patients did not know the providers were
not in their plans network when they
received care.
The 57-year-old Dennis had little
choice about his treatment.
He was at work at a bank branch in

n See BALANCE BILL on PAGE 19

MILLION DOLLAR SETTLEMENTS


In 2015, our sister publication, Virginia Lawyers Weekly , reported 26 medical
malpractice defense wins in which the plaintiff sought a recovery of $1 million or
more. the annual compendium of million-dollar med-mal defense verdicts begins
on page 7. For inclusion in the survey, the final demand or amount sued for must
have been $1 million or more; the verdict must have been handed down by a jury in
2015. the size of the defense verdict is determined by the amount demanded.

A new mother can sue an


obstetrical practice for allegedly infecting her with
streptococcus during treatment by an infected staff
member, a Fairfax Circuit
Court has ruled.
In
May
2013,
the
mother fell ill
after her discharge from
the hospital.
Several days
later,
she
was admitted
to a critical
care unit sufJUDGE SHANNON
fering from
significant
sepsis, according to her lawsuit.
After she was diagnosed with
group A streptococcus, state and
county health authorities investigated, and traced the source of
the infection back to an employee or agent of the obstetrical
practice, she said.
The defendant medical practice claimed it was protected
from suit under a statutory
grant of immunity for providers
who report health-related confidential information to state and
local health authorities.
In a case of first impression,
the judge rejected the defendants logic.
That interpretation of Va.
Code 32.1-38 would provide a
broader grant of immunity than
the legislature intended, said
Fairfax Circuit Judge Stephen
C. Shannon.

Back to the hospital

Shannon relied on the parties


pleadings in ruling on the defendants plea in bar.
Mary E. Alipio delivered her
child on May 21, 2013, at INOVA Fair Oaks Hospital, under
the care of employees of the Fair
Ridge OB-GYN Associates PC,
who had provided her prenatal,
labor and post-partum treatment, she alleged.
Two days after giving birth,
she was discharged by a Fair
Ridge employee. At the time,

n See INFECTION on PAGE 18

INSIDE

Handling patient
records in bankruptcy
Page 4

OVERLOADED?

VERDICTS & SETTLEMENTS

DEATH CASE SETTLEMENT

You can take steps to fight job burnout


page 5

Three pages of newly reported cases


begin onpage 16

Claim under patient-dumping law settled


for $1.1Mpage 6

Virginia Medical Law Report

Virginia Lawyers Media, May 2016|Page 3

Suit claimed doctor lied about wrong-leg surgery


By Peter Vieth
The chief of vascular surgery at
INOVA Fairfax Hospital lied in
medical records to cover up the
fact that he operated on the wrong
leg of his patient, according to a
lawsuit filed this month.
The startling allegations are contained
in a $10 million civil complaint that marries medical malpractice claims with
charges of civil conspiracy and fraud.
After the surgery, the absence of further care and misrepresentations by surgeon Dr. Dipankar Mukherjee and others
led to the death of the 92-year-old patient,
the lawsuit contends.
The suit alleges that when Mukherjee
realized he had operated on the wrong
leg, he ended the surgery and added false
entries in the records to make it seem as
though the switch was intentional.
Instead of just admitting the simple
mistake and fixing it, he undertook to
cover it up, said Les S. Bowers of Roanoke, the lawyer representing the patients family.
The suit was filed April 5 in Fairfax County Circuit Court. It is Yeatts v.
Mukherjee, No. 2016-05070.
As of press time, it was not clear whether the suit had been served on the defendants, including Mukherjee, Virginia Surgery Associates PC, INOVA Health Care
Services and INOVA Physician Partners
Inc. VLW could not confirm who would be
counsel for the Inova defendants.
An attorney representing Mukherjee declined to comment. A media rela-

tions officer for Inova said the non-profit


healthcare company does not comment
on matters in litigation.
The lawsuit which includes images
of entries in medical records describes
the last days of Reginald M. Manning. A
longtime North Carolina state employee, Manning in recent years had moved
to Northern Virginia to be near family
members, Bowers said.

Suspicious Rx led to a lawsuit


By Deborah Elkins
Tighter rules on some kinds of drug
prescriptions have put pharmacists and law enforcement on alert
for efforts to evade controls. Sometimes their suspicions can lead
to lawsuits, as in a recent case in
Richmond federal court.
Plaintiff Eve Davis was arrested in a WalMart store after a pharmacist suspected a
fraudulent prescription and notified law enforcement. Davis sued Spotsylvania County
Deputy James V. Harney under 42 U.S.C.
1983, claiming he did not adequately investigate her history of prescription fulfillment
prior to leading her away in handcuffs.
Richmond U.S. District Judge Henry
Hudson dismissed Davis claims against
Wal-Mart and its pharmacist, but the
claim against Harney survived the
courts April 13 decision in Davis v. WalMart Stores East LP.
Davis, a former government contractor
with a security clearance, suffers from
attention deficit/hyperactivity disorder
and mild depression, for which she is prescribed Adderall, her complaint alleged.
Because she had no medical insurance, her
prescribing physician, Dr. Syed Ahmed,
agreed to provide Davis with two onemonth prescriptions every other month to
reduce the frequency of Davis office visits
and ultimately save her money.
On Saturday, Oct. 5, 2013, Davis took
her prescription to Wal-Mart and waited
in the store to pick it up. The pharmacist, Brenda Greer, ran the prescription
through the states Prescription Monitoring Program to check on Davis prescription history, and noticed she had
just filled an Adderall prescription for the
same quantity only four days earlier.
But Greer allegedly also observed a
pattern of Davis filling two prescriptions for a one-month Adderall supply a
few days apart, followed by a two-month
hiatus before filling additional Adderall
prescriptions, according to the suit. That
pattern never exceeded a frequency of
one prescription per month, from April

2013 to October 2013, Davis claimed.


Davis alleged Greer apparently concluded Davis had a proper patient-provider
relationship with Dr. Ahmed, but that Davis was attempting to fill the prescription
too soon. She allegedly called Dr. Ahmeds
office and left a voicemail inquiry about
whether he approved filling the prescription at this time, and faxed a copy of the
prescription to his office. The pharmacy
technician called Davis cellphone and left
a voicemail stating Wal-Mart would be unable to fill the prescription until Monday.
Shortly thereafter, Greer called the Spotsylvania Sheriffs Office and told a dispatcher that she had a patient turning in
prescriptions with the same date on it for
the same medicine at two pharmacies
Davis alleged Greer described the prescription as a fake and a duplicate and said
the signature looked funny. Greer gave
the dispatcher Davis name, birthdate and
address. The dispatcher told Greer a deputy
was on his way. Davis alleged Greer never
discussed her concerns as to the timing of
the prescription.
When Deputy Harney arrived at the
pharmacy, Greer purportedly told him
the pharmacy needed more time to verify
the prescription with the physician. The
pharmacist did not tell the deputy the
prescription was fraudulent, but did say
the PMP history was raising some red
flags, Davis said.

Jail time

Davis returned to the pharmacy to ask


about her prescription, and Greer supposedly stalled, waiting for the deputy. Once Harney arrived at the pharmacy, he got in line
behind Davis, and when Greer announced
Davis name, the deputy handcuffed Davis
and escorted her to a room in the store to interview her about the prescription. He then
took her to the sheriffs office and booked
her for violating Va. Code 18.2-258.1(A),
for attempting to obtain Adderall by fraud.
On the following Monday, Dr. Ahmed informed Wal-Mart pharmacy staff by phone
and fax that the prescription was valid and
he approved it being filled. Davis alleged
Greer did not attempt to contact the sheriffs office to relay this information, but did

n See PRESCRIPTION on PAGE 19

A resident of an assisted living facility,


Manning was taken to the Fairfax Hospital in April 2014 with symptoms indicating a possible urinary tract infection, the
lawyer said.
Other than those symptoms, Manning
was of sound mind, stable body, Bowers said.
Vascular surgery was planned after
tests showed the possibility of blood clots

in Mannings left leg. Dr. Mukherjees


plan was an operation to remove the left
leg clots either chemically or surgically.
None of the studies indicated any problems with Mannings right leg, and no
medical staffer documented any concerns
about the vascular status of the right leg
at any time prior to the April 8 surgery,

n See WRONG LEG on PAGE 6

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Virginia Medical Law Report

Page 4 | Virginia Lawyers Media, May 2016

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AUDIENCE DEVELOPMENT MANAGER

Handling patient records in bankruptcy


By Roy Terry
When a health care business files
for bankruptcy, legal requirements
for the handling of patient records
can quickly become the focal point.
Health
care
business is defined
broadly under a body
of federal statutes
known as the Bankruptcy Code. The
Code definition references a public or private entity, whether
for profit or non-profit, to include: (i) the
TERRY
diagnosis or treatment of injury, deformity, or disease; (ii) surgical, drug
treatment, psychiatric or obstetric care;
general or specialized hospital, ambulatory, emergency or surgical treatment
facilities; hospice; home health care; and
any long-term care facility, including any
skilled nursing or assisted living facility.
Bankruptcy courts have understandably
gained considerable experience with cases filed by businesses which fall within
this sweeping definition.
The last major revision of the Bankruptcy Code occurred a decade ago. Included within that revision was the enactment of Section 351, which focuses
solely upon the handling of patient records. This Code section comes into play
when a health care business commences
a case under Chapter 7, 9, or 11.

Each of these chapters represents a different type of bankruptcy:


Chapter 7 is a liquidation bankruptcy where an independent trustee is
appointed to administer assets for the
benefit of creditors.
Chapter 9 is a municipally-related
bankruptcy which has famously seen recent use in the reorganization of Detroits
finances. An example of a Chapter 9 health
care proceeding might be the reorganization of an insolvent public hospital.
Chapter 11 can be used for either the
reorganization or liquidation of a business entity or individual. While a plan is
being developed and put forward for the
approval of creditors and confirmation by
the court, pre-petition management generally retains control during chapter 11
under the supervision of the court and
an administrative agency known as the
United States Trustee. Debtor-in-possession is the term used when management
remains in place during chapter 11. A
debtor-in-possession functions with the
same powers and duties as a chapter 7
trustee. Henceforth in this article, references to the trustee shall also include
reference to a debtor-in-possession.
If a health care business commences a
bankruptcy pursuant to chapter 7, 9 or
11, and the trustee lacks sufficient funds
to pay for the storage of patient records as
required under federal or state law, Section 351 prescribes the following specific
requirements for the trustee:
1) The Trustee must promptly publish
in one or more appropriate newspapers
that if patient records are not claimed
by the patient or an insurance company

within 365 days, the trustee will destroy


the records;
2) During the first 180 days of the 365
day notice period, the trustee must also
attempt to notify directly each patient
(or family member or contact person of a
patient) and appropriate insurance carrier; and
3) If patient records remain unclaimed
after the 365 day period, the trustee shall
then request to deposit the records with
each appropriate Federal agency, except
that these agencies are not required to
accept the records.
If patient records remain after all three
steps have been accomplished, the trustee must destroy the records as directed
by the statute.
It bears repeating that Section 351
applies when a trustee lacks sufficient
funds to store patient records. What if the
trustee also lacks sufficient funds to carry out the requirements of Section 351?
Who pays to store the records during the
one year plus required for the trustee to
comply with the Code provisions? Stories
exist of trustees who have had no choice
but to fund compliance with the statutory
requirements from their own pockets.
A resulting opportunity exists for purchasers desiring to acquire health care
businesses who will take on the financial
responsibility for storing patient records,
and a possible solution exists for trustees charged with administering a cashstarved health care business.

Tracy Bumba
__________________________________
Established 2004
Statewide General Circulation
Published Bimonthly
Phone number: 8047830770
1800456LAWS

Virginia Medical Law Report is


published bimonthly by Virginia
Lawyers Media, 411 E. Franklin Street,
Suite 505, Richmond, VA 23219. Price is
$10 per copy, plus shipping and
handling, or $29.99 per year.
POSTMASTER: Send address changes
to Virginia Medical Law Report,
Circulation,
411 E. Franklin Street, Suite 505,

Roy Terry practices law with Sands


Anderson in Richmond.

Richmond, VA 23219
2016 Virginia Lawyers Media,
All Rights Reserved

Table of Contents:
3 Suit claimed doctor lied about wrong-leg

5 Feeling the burnout? Take these steps to

3 Suspicious Rx led to a lawsuit

6 Settlement is $1.1 million in hospital death case

4 Handling patient records in bankruptcy

7 - 14 Million Dollar Defense Verdicts

surgery

recharge

Photocopying and data processing


storage of all or any part of this issue
may not be made without prior consent.

Virginia Medical Law Report

Virginia Lawyers Media, May 2016|Page 5

Feeling the burnout? Take these steps to recharge


By Shawn Healy
Dolan Media Newswires

There are few things more discouraging than


to invest significant time and effort in your
career, only to want to quit because you feel
burnt out.

Burnout is a common yet preventable experience


among hardworking professionals. Its the feeling of
discouragement that comes from thinking that your
current efforts are meaningless, or that you cannot
produce the positive impact you want through your
work.
Burnout is a reaction to prolonged, negative stress
that feels like a weighty burden and makes it difficult
to maintain hope for the future. Symptoms of depression from burnout can include hopelessness, low energy, sadness, discouragement and lack of interest. The
more you understand what contributes to burnout, the
more you can do to prevent it.
Contrary to popular belief, burnout can occur in a
relatively short amount of time. You need not work in
an unrewarding job for years before burnout sets in.
In fact, given the right combination of factors, one can
experience burnout very early in a career.
Burnout can occur when youre working in a stressful job for an extended period of time; the stress is
consistent and seems to be resistant to your attempts
at reducing it; the work you do feels meaningless or
of little use; you have tried repeatedly to change your
situation but have not found success in anything you
have tried; and/or you feel like you have no options to
acquire the type of meaningful job you desire.
Below are several contributing factors to burnout
and recommendations for how to prevent or treat it.
Avoid unrealistic expectations.
Our expectations set the parameters for how we react to events in our lives. If our expectations are unrealistic, we set ourselves up for disappointment, resentment and diminished resilience.
An expectation that our efforts at work will be rewarded with appreciation every day, while a nice idea,
is an unrealistic expectation that will lead to feeling
unappreciated within days.
A healthy or realistic expectation has more to do
with you and what you have control over, and less

about what others will do.


Understanding the dynamics of the system.
When we lack understanding as to how the system
we work in operates, frustration and feelings of powerlessness are soon to follow.
Learning to appreciate the system youre in is not the
same as simply playing the game and doing things
the way they have always been done; instead, its a way
to learn how most effectively to get your needs met.
The more you feel self-efficacy in meeting your needs,
the greater sense of control you will feel.
Identify what you control.
Much time and effort are wasted as we try to manipulate things outside of our control. Practicing acceptance of the things over which we have no control and
focusing our efforts on those things we can actually
influence is a powerful way to increase your sense of
control in your work, and in your life in general.
For instance, you might not be able to choose the
cases you are assigned a common source of frustration for associates but you can choose how you think
about those cases, how you ask for help, how you look
for something meaningful in the work, and how much
time you choose to dedicate to thinking about the work
once you leave the office.
Avoid meaningless work.
There are certain tasks that might seem meaningless or dreadfully boring. Most people experience a certain amount of meaningless work in their day-to-day
responsibilities.
The problems start to develop when the majority of
your work feels meaningless or you lack compensatory
experiences of meaningful work to balance it out. We
all need meaning in our lives.
If the tasks you have to complete at work do not naturally satisfy your need for meaning, either seek out
meaningful activities outside of work or explore ways
that you can get involved in meaningful activities at
work.
Set reasonable boundaries.
Setting healthy boundaries is one example of exercising control in your life.
When work feels unrelenting, increase your sense
of control by practicing saying no diplomatically, set
boundaries on when you will stop working, schedule
time for rest and self-care, and challenge the thought
that you cannot set boundaries lest something terrible
happen.

Schedule breaks/time off.


Our calendars can quickly fill up and feel overwhelming. Use the power of your calendar to schedule breaks
in your work and time off from work in order to recharge.
Studies have shown that taking regular breaks
throughout the day improves work productivity and increases your ability to handle difficult tasks.
Exercise control outside of work.
As you focus on areas within your work that you can
influence, look also to increase your control outside of
work to help ward off burnout.
Adopt meaningful hobbies and activities.
It is extremely important to remember that your work
is not your entire life. If you are able to do something
that you love, thats great. But even then, you need more.
Having meaningful hobbies and activities helps to increase your sense of life satisfaction, gives you an opportunity to shift your perspective on things, and can increase creative thinking at work as you apply that new
perspective to work situations.
Talk to a professional.
Burnout is a complex issue that is influenced by both
internal and external factors. Talking with a trained
mental health professional (and perhaps a career coach)
can help you break down the various elements that are
contributing to the burnout.
Seek help sooner rather than later. The sooner that a
significant issue is addressed, the easier it is to effect a
positive change.

New firm, same experienced lawyers.


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Matthew L. Curtis
Colleen M. Gentile
Ruth Griggs
L. Thompson Tom Hanes
Ian Lambeets

Joel M. McCray
Kenneth T. Roeber
Katherine C. Skilling
Michelle L. Warden
Carlyle R. Randy Wimbish, III

We congratulate Randy Wimbish,


Colleen Gentile, Joel McCray and Ruth Griggs
on their inclusion on the 2015 Million
Dollar Med Mal Defense Verdicts list.
Wimbish Gentile McCray & Roeber PLLC
8730 Stony Point Parkway, Suite 201
Richmond, VA 23235
Phone: (804) 510-0870 | wgmrlaw.com

Virginia Medical Law Report

Page 6 | Virginia Lawyers Media, May 2016

Settlement is $1.1M in hospital death case


By Peter Vieth
The children of a woman who died
from a long-untreated blood infection after being seen at a hospital
emergency room will share in a $1.1
million settlement of a claim against
the hospital and the ER doctor.
The settlement left a novel legal issue unresolved: The womans estate had
sought to bar a doctors undocumented
claim that the patient had refused admission. The estates attorney maintained
the doctor should not be allowed to testify
about the patients alleged refusal when
the doctor failed to make any record of it
in the medical charts.
The estate asserted claims under both
the federal patient dumping law the
Emergency Medical Treatment and Labor Act and under state medical malpractice standards. A federal judge ruled
last year that the state law claims would
remain in the case pursuant to the federal courts supplemental jurisdiction.
Lynchburg attorney James B. Feinman,
counsel for the estate, said he accepted
the defendants offer out of concern about
how a jury might regard the value of the
case. The deceased patient was an IV
drug abuser who previously had given up
custody of her two children, the beneficiaries of her estate.
The 27-year-old patient came to the
emergency department on Nov. 25, 2014,
with severe sepsis, hyponatremia and
probable bloodstream infection, according to a summary provided by Feinman.
A blood sample was sent for analysis on a
stat basis, but the patient was discharged
before culture results were obtained.
The doctor discharged her with a diagnosis of sinusitis and a prescription for
oral antibiotics.

The lab results were positive for staphylococcus aureus in the patients bloodstream, establishing the emergency
medical condition of staph aureus septicemia. The patient required hospitalization and long-term intravenous antibiotic
treatment, Feinman said.
An emergency department nurse received the lab report, but never advised
a doctor. The hospital never contacted the
patient to tell her she had a bloodstream
infection.
The patient returned and saw the same
doctor 17 days later. She had not received
any treatment for the blood infection in
the interim.
While waiting for the doctor to start
her on IV antibiotics, the patient had a
stroke from a clot released by an erratic
heartbeat caused by the infection, Feinman said. She was partially paralyzed

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and remained hospitalized until her


death on March 12.
The ER physician claimed he knew of
the patients serious condition when she
first arrived at the hospital and tried to
admit her. She refused, the doctor said.
The medical records showed the patient
was discharged, but the doctor testified
that he forgot to write down that he offered admission and the patient refused.
Feinman asked the judge to bar the
doctors testimony about the patients
purported refusal.
The lawyer pointed to a state regulation that requires doctors to maintain accurate medical records. Because the doctor, by his testimony, violated that rule,
he should not be allowed to profit from
his wrongdoing, Feinman argued.
You cant let him get the benefit of
breaking that law, Feinman told the judge.

Wrong leg |

This is a whole new line of argument


that had never been tried, never been litigated, never been decided, he said.
The case settled before the judge could
rule on the issue. Mediation was conducted with retired U.S. Magistrate Judge B.
Waugh Crigler.
The estate was of the opinion it could
not afford to gamble the offer of $1.1
million given the decedents admitted
IV drug use, Feinman wrote in a settlement report.
The money recovered for the patients
children, ages 8 and 12, was placed in
long-term structured settlement funds.
The identity of the parties is not being
disclosed pursuant to the parties confidentiality agreement, which allowed a
report on the details of the case.
Attorneys for the defendants declined
comment.

n continued from page 3

the suit said.


In the operating room, however,
Mukherjee obtained arterial access and
proceeded to operate on the RIGHT leg,
the suit read. Dr. Mukherjee was operating on the wrong leg, the suit alleged.
The suit contended that Mukherjee
falsely documented a finding of vasospasm in the right leg to cover up his
mistake and then discontinued the procedure. He never intervened with the left
leg, the suit said.
Dr. Mukherjee failed and refused to
do anything for Mr. Mannings LEFT leg
because doing so would have exposed the
fact that he had operated on the wrong
leg, the suit alleged.
Mukherjee later created chart entries
suggesting the right leg intervention was
appropriate, the suit contended. Those
entries were a knowing and intentional
lie, the suit said.
The doctor then counseled the family to
agree to a do not resuscitate plan for the
92-year-old Manning, the suit said.
This appears to be end of life condition
and no major intervention should be performed, Mukherjee wrote in the records,
according to the suit.
Mukherjees recommendation was a
pretense to cover up the fact that he
intentionally performed a wrong-leg surgery, the suit said.
Even at his advanced age, the patient
seemed to appreciate his predicament,
the suit indicated.
A physicians assistant documented a
visit with Manning the day after the surgery. He said the patient had good recall
for his age and told the PA I have an embolus in my left femoral artery. Manning
also told the PA that his left foot hurt as
he lay in bed, according to the lawsuit.
Manning was discharged the day after
surgery and died two days later in hospice care.
With proper treatment, Mr. Manning
would have avoided his pain, suffering
and untimely death, the suit alleged.

The suit also claims the hospital and


a physician group ignored the incident
and later made Mukherjee the chief of
vascular surgery for INOVA Fairfax
Hospital.
Seven weeks after Mannings death,
Mukherjee sought to explain the circumstances with an additional entry in the
medical record, the suit said. He wrote
that he decided to perform the procedure
on the right leg based on the symptomatology of the patient the day of the procedure and my clinical judgement.
The patient and the family had given
verbal consent, the doctor indicated in
the note.
That note was entirely false, the lawsuit said.
The note constituted wire fraud, insurance fraud and obstruction of justice, the
plaintiff contended.
The lawsuit seeks compensatory and
punitive damages for medical negligence,
battery, common law civil conspiracy, and
fraud.
Bowers said he sent a draft of his lawsuit to representatives of the defendants
before filing, but they declined to engage
in settlement discussions.
Bowers said the wrongdoing was plain
to see. There were repeatedly obvious
misrepresentations in the records, he
said in an interview.
It seems like one of those hand in the
cookie jar incidents, Bowers said.
You just cant go in and change records
like this in 2014 without leaving a trail,
he added.
Mukherjee has been in active clinical
practice for 41 years and is board-certified in general and vascular surgery, according to records of the state Board of
Medicine. The record shows no reported
paid claims in the past 10 years.
Richmond lawyer Colleen M. Gentile
confirmed she is representing Mukherjee,
but offered no comment.

Virginia Medical Law Report

Virginia Lawyers Media, May 2016|Page 7

MILLION-DOLLAR DEFENSE VERDICTS


VIRGINIAS MILLION-DOLLAR MED-MAL DEFENSE VERDICTS OF 2015
$13 Million
Plaintiffs claim earlier C-section would
have prevented brain injury
Injuries alleged: Serious physical and neurological injuries including
brain damage (infant); serious physical injuries, emotional and mental
anguish (mother)
Court: Hanover County Circuit Court
Defense attorneys: Kimberly A. Satterwhite and Ashley Dobbin Calkins,
Richmond
The
plaintiff mother, 39
weeks pregnant,
presented to the
hospital for an
elective
induction of labor on
the evening of
Aug. 9, 2011. Labor progressed
throughout the
SATTERWHITE
CALKINS
day Aug. 10. She
requested an epidural, which was placed at approximately 12:15 p.m.
The defendant OB/GYN treated the mother again beginning the evening of Aug. 10. The defendant physician
was notified at approximately 2:00 a.m. that the fetus
was experiencing continuous variable decelerations,
more pronounced with pushing, with decreased variability. The defendant physician advised the nurse that the
patient should continue to push. At approximately 2:26
a.m., the defendant arrived at the mothers bedside. He
recommended a Caesarean section. The plaintiff infant
was delivered at 2:52 a.m.
The infant was initially described as floppy and cyanotic with irregular respirations. His scores were low
and he later was diagnosed with cerebral palsy.
Defendants neuroradiology expert testified that,
based on findings on the CT scan taken at 10 hours of
life, the infants brain injury most likely occurred at
the latest at approximately 6:40 p.m. on Aug. 10, seven
hours before plaintiffs experts had opined that the defendant had breached the standard of care and caused
injury to the mother and infant. After seven days of trial,
the jury returned a verdict in favor of the defendant doctor and his practice.

$5 million
Plaintiff claimed cardiologist failed to
diagnose impending heart failure
Injuries alleged: Congestive heart failure, hospitalization and stroke
Court: Roanoke Circuit Court
Defense attorneys: Kathleen M. McCauley and Susan L. Kimble,
Richmond
In 2002, plaintiff was diagnosed with cardiomyopathy,
likely viral, and ventricular tachycardia. Echocardiography indicated severe disease. An AICD was placed, and
plaintiff was prescribed medications. A repeat echocardiogram in 2004 showed no improvement, and plaintiff
followed up with the defendant cardiologist approximately every six months between 2002 and 2008.
Beginning in July 2008, plaintiff reported increased
stress at work. In August, he began seeing a general surgeon for epigastric discomfort. Plaintiff visited

the emergency
department on
Sept. 19, 2008,
complaining of
a brief episode
of chest pain.
A chest CT was
negative for pulmonary emboli.
Several days
later,
plaintiff
KIMBLE
followed up with McCAULEY
his last visit to
the cardiologist. Plaintiff was admitted to the hospital
on Oct. 13 with complaints of abdominal pain and shortness of breath. On the third hospital day, plaintiff was
diagnosed with congestive heart failure. He suffered
an embolic stroke on the seventh hospital day. In 2012,
plaintiff underwent heart transplant.
Plaintiff alleged that the defendant cardiologist failed
to appropriately monitor and control his blood pressure,
failed to order serial echocardiograms and failed to diagnose impending congestive heart failure, beginning
in July 2008. Plaintiff further alleged that due to the
cardiologists negligence, he required hospitalization for
congestive heart failure and suffered a stroke.
The jury deliberated for two hours and 20 minutes
and returned a defense verdict.

$5 million
Plaintiff claims spinal surgeons
posterior approach caused paraplegia
Injuries alleged: Paraplegia following back surgery
Court: Fredericksburg Circuit Court
Defense attorneys: Byron J. Mitchell and Coreen A. Silverman,
Fredericksburg
Plaintiff, 86, presented to the defendant orthopedic
spine
surgeon
in January 2013
with complaints
of gait difficulties and imbalance.
MRIs
revealed
stenosis due to an
extremely rare
condition: ossification of the posterior longitudiMITCHELL
SILVERMAN
nal ligament. In
OPLL, the posterior ligament running vertically along the front of the
spine becomes calcified, causing lower leg symptoms. After a neck operation that was an unsuccessful attempt to
relieve her symptoms, the defendant eight months later operated on plaintiffs thoracic spine. The defendant
used a posterior-lateral approach to remove the bony
elements in the back of her spine and then removed a
small portion of the ossified ligament, which he could
access. When the patient awoke in the recovery room,
she was paraplegic, and remains so.
Plaintiff sued her spine surgeon, claiming that the
defendant should have approached the OPLL from the
front or side, and because of his faulty posterior approach and shoddy technique, he manipulated the spinal
cord at surgery and caused her paralysis, The defense
theme was that defendant elected a reasonable, less invasive posterior-lateral approach. Defendant also denied
touching the spinal cord and claimed that the post-op
imaging was not conclusive as to the cause of injury.

METHODOLOGY

After four-and-a-half days of evidence, the jury deliberated for about five hours before returning a defense verdict.

$4,324,904
Man died of staph infection after
suffering injuries in ATV crash
Injuries alleged: Wrongful death
Court: Prince Edward County Circuit Court
Defense attorneys: Carlyle R. Wimbish III and Ruth T. Griggs, Richmond
Plaintiff, 59, was in an ATV rollover accident. At discharge, decedent
was instructed
to follow up with
his primary care
physician in one
week.
On May 4,
decedent
saw
his family doctor,
Dr. Hall, who referred him to Dr.
Donkor for posWIMBISH
GRIGGS
sible drainage of
left hemothorax.
Dr. Donkor saw decedent later that same day and recommended a course of treatment; decedent wanted these
treatments administered and monitored by Dr. Hall.
On May 7, decedent was transported by ambulance to
the emergency room. Although the treating emergency
physician thought the vital signs and lab results strongly suggested an infection, he did not order antibiotics.
Rather, he transferred the decedent to VCU. A blood culture indicated a staph aureus, but he did not report this
result. Decedent remained at VCU until May 11, when
he died of an untreated infection.
Dr. Donkor was the only physician sued by the decedents estate. The plaintiffs experts contended that Dr.
Donkor breached the standard of care by not admitting
the decedent to the hospital from his office on May 4. Dr.
Donkor presented the testimony of a pulmonologist, who
testified that the standard of care did not require him to
admit the decedent to the hospital that day.
The jury deliberated for approximately one hour before returning a defense verdict.

$3,500,000
Laparoscopic prostatectomy was
complicated by bowel injury
Injuries alleged: Bowel perforation and injury leading to subsequent
surgeries
Defense attorneys: Sean P. Byrne and Meredith M. Brebner, Glen Allen
Plaintiff, 59, was a minister. He was diagnosed with
prostate cancer. Plaintiffs treating urologist discussed
treatment options with the patient, who opted to explore
surgical treatment. He was referred to the defendant
urologist, who was experienced in performing robotic-assisted laparoscopic prostatectomies.
Plaintiff underwent such an operation in January
2013. During surgery, the defendant urologist recognized and repaired a bowel perforation likely caused by
the initial trocar insertion. After the initial surgery, the

The survey of Virginias 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 recover in each was the same zero, since the defense prevailed. The size of
the verdict is based on the value of the demand.
To qualify, a verdict must have been returned by a jury in 2015.
The 2015 survey features 26 verdicts.

Virginia Medical Law Report

Page 8 | Virginia Lawyers Media, May 2016

MILLION-DOLLAR DEFENSE VERDICTS


VIRGINIAS MILLION-DOLLAR MED-MAL DEFENSE VERDICTS OF 2015
defendant urologist
disclosed
the bowel injury
to plaintiff and
his family. He
kept the patient
in the hospital
until post-operative day three
for careful moni- BYRNE
BREBNER
toring. As of the
date of discharge, the patient was feeling well and was
discharged home.
On the sixth post-operative day, the patient returned
to the emergency room. A CT scan confirmed a bowel
leak, and plaintiff underwent repair surgery performed
by a general surgeon in consultation with the defendant
urologist.
In discovery and at trial, plaintiff repeatedly denied
the defendant urologist (or any physician) had ever advised him of the risks of surgery and specifically the risk
of bowel injury. But the jury was presented with medical
records and documenting his specific risk factors and informed consent discussions.
After less than 20 minutes, the jury returned a verdict
in favor of the defendant urologist and his employer.

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$3,100,000
Hospital patient died from complications
of sickle cell disease
Injuries alleged: Wrongful death
Court: Arlington County Circuit Court
Defense attorneys: Susan L. Mitchell, Matthew D. Banks and Judd P.
Altman, Fairfax

fusion known as an exchange transfusion in order to


properly treat the patients acute chest syndrome.
Defense experts testified that under the circumstances the standard of care required neither hematology
consultation nor exchange transfusion prior to the time
that those steps were, in fact, taken. Defendants pulmonology expert testified that the patient was suffering from severe pneumonia, likely due to an aspiration
event, which took her life in spite of appropriate care by
defendants.
Plaintiff presented rebuttal expert testimony that the
patient did not have pneumonia.
The jury returned a defense verdict on day seven.
Plaintiffs petition for appeal is pending with the
Supreme Court of Virginia.

$3 million
Patient with history of sleep apnea died
during surgical recovery
MITCHELL

BANKS

ALTMAN

Injuries alleged: Wrongful death


Court: Fairfax County Circuit Court

Decedent, 19, suffered from sickle cell disease. She


presented to Virginia Hospital Center-Arlington with
signs and symptoms consistent with sickle cell vaso-occlusive pain crisis. She was transferred to the ICU with
plummeting oxygen saturation levels and respiratory
distress. Chest X-rays and CT scan showed significant
bilateral basilar airspace disease. The patients course
continued to worsen and she died.
Plaintiff presented evidence that the patient was
suffering from acute chest syndrome, which is a serious complication of sickle cell disease. Plaintiffs expert
intensivist/pulmonologist testified that the standard of
care required the defendants to obtain a hematology
consultation and to have ordered a special blood trans-

Defense attorneys: Byron J. Mitchell and Lynne C. Kemp, Fredericksburg

MITCHELL

KEMP

The
decedent, 63, underwent a five-hour
back surgery on
March 23, 2009,
at Inova Fairfax
Hospital.
Her
medical history
was significant
for obesity, severe obstructive
sleep apnea, re-

Every attorney at Herbert & Satterwhite, P.C. was recognized in


Virginia Lawyers Weeklys Million Dollar Defense Verdicts of 2015.
We dont just claim trial experience we prove it.

Ronald P. Herbert
rherbert@herbertsatterwhite.com
Direct Dial: (804) 554-1803

Kimberly A. Satterwhite
Sandra Morris Douglas
ksatterwhite@herbertsatterwhite.com sdouglas@herbertsatterwhite.com
Direct Dial: (804) 554-1802
Direct Dial: (804) 554-1813

Todd D. Anderson
tanderson@herbertsatterwhite.com
Direct Dial: (804) 554-1810

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tpilcher@herbertsatterwhite.com
Direct Dial: (804) 554-1804

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Direct Dial: (804) 554-1808

Herbert & Satterwhite, P.C. 1800 Bayberry Court Suite 302 Richmond, Virginia 23226 (o) 804-554-1800 (f ) 804-554-1801

Virginia Medical Law Report

Virginia Lawyers Media, May 2016|Page 9

MILLION-DOLLAR DEFENSE VERDICTS


VIRGINIAS MILLION-DOLLAR MED-MAL DEFENSE VERDICTS OF 2015
nal failure, congestive heart failure, hypertension and
diabetes. Surgery was uneventful. Decedent emerged
from anesthesia smoothly. Despite receiving the opioid,
Dilaudid, for her post-operative pain, decedent showed
no signs of obstruction, apnea or respiratory difficulty.
Decedent was transferred to the orthopedic floor at 4:17
p.m, where she dozed off to sleep.
At approximately 5:00 p.m., decedents son noticed
that her customary noisy snoring had stopped. He summoned help. A Code Blue was called. Despite being resuscitated within minutes, decedent never regained
consciousness and was diagnosed with brain damage. A
week later, the family elected to withdraw life support.
The surviving adult children sued the anesthesiologist,
alleging that he failed to order that the decedent be discharged from the PACU to a continuously monitored bed
with a continuous positive airway pressure machine.
The defense argued that the defendant acted reasonably
in his anesthesia plan, including sending the decedent to
the orthopedic floor given her outstanding course in the
PACU. The jury deliberated for more than seven hours
over two days before returning a defense verdict.

$3 million
Infant had no long-term deficits from
placental disruption
Injuries alleged: Placental disruption during Caesarean section
Court: Norfolk Circuit Court
Defense attorneys: Kimberly A. Satterwhite and Sandra Morris Holleran,
Richmond
Plaintiff, age 38, underwent an elective Caesarean
section on Nov. 13, 2009. Her prenatal course had been
complicated by gestational diabetes and concern regard-

ing placental location. After a series


of
ultrasounds,
the final ultrasound revealed an
anterior low-lying
placenta and maternal-fetal medicine recommended that plaintiff
be managed as
MORRIS
a previa patient SATTERWHITE
HOLLERAN
with delivery by
C-section.
During the C-section, the defendant OB/GYN performed a transverse low incision in the lower uterine
segment. In doing so, the defendant disrupted and entered a small portion of the placenta, consistent with an
anterior previa, to deliver the infant. The infants arterial and venous cord blood gasses at birth were normal.
Blood gasses drawn approximately 40 minutes later in
the nursery were abnormal and the infant was transferred to a NICU at another facility where the infant
was diagnosed with anemia and other medical issues.
The infant fully recovered and was discharged after 31
days, with the anemia and all other medical issues resolved halfway through the NICU stay. The infant had
no neurological or developmental deficits from the birth
and subsequent hospitalization in the NICU.
On the third day of trial, the jury returned a verdict in
favor of the defendants.

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$3 million
Patient fainted and struck his head after
getting an X-ray
Injuries alleged: After falling, plaintiff developed a large brain
hemorrhage
Court: Arlington Circuit Court
Defense attorneys: Byron J. Mitchell and Kristina L. Lewis,
Fredericksburg
The
plaintiff, an active
52-year-old and a
high-earning tax
attorney
with
the IRS, fell off
his bicycle as he
rode home from
work,
striking
his left shoulder.
He walked his
MITCHELL
LEWIS
bike home, showered and then he
and his wife went to the Virginia Hospital Center ER.
He denied hitting his head to the triage nurse.
The defendant physicians assistant evaluated the
plaintiff and ordered X-rays, which revealed a collapsed
lung and several fractures. After examining the plaintiff,
the pulmonologist recommended a repeat chest X-ray to
see if the pneumothorax had enlarged. Immediately after the repeat chest X-ray, while standing, the plaintiff
exclaimed, It hurts, fainted and struck his head on the
floor. A code was called. Plaintiff underwent life-saving
brain surgery at 2:00 a.m. to relieve a large intracranial
bleed. He suffered through 11 months of rehabilitation
before returning to work.
Plaintiff sued the PA and ER physician, alleging that

Virginia Medical Law Report

Page 10 | Virginia Lawyers Media, May 2016

MILLION-DOLLAR DEFENSE VERDICTS


VIRGINIAS MILLION-DOLLAR MED-MAL DEFENSE VERDICTS OF 2015
they underestimated his injuries. The defendants argued that the plaintiffs fainting episode after his repeat
chest X-ray was completely unforeseeable given that he
had never complained of feeling dizzy, lightheaded or
weak in the ER. After five days of evidence, the jury deliberated for an hour before returning a defense verdict.

$3 million
Diabetic lost full use of hand after mole
removal surgery

intravenous antibiotic therapy, where she stayed five


days. Plaintiff underwent approximately five months of
hand therapy to regain function in her hand.
Plaintiff filed suit seeking $3,000,000 in compensatory damages for loss of significant use of her dominant
hand due to the defendants alleged failure to prescribe
antibiotics and failure to timely diagnose and appropriately treat the infection.
Defense experts testified that the defendant complied
with the standard of care, that the plaintiffs incision
became contaminated several days after surgery from
lack of adequate hand washing, and that intravenous
antibiotics alone cured the infection.
The jury returned a defense verdict within 10 minutes
of deliberating.

Injuries alleged: Loss of significant use of dominant hand


Court: Richmond Circuit Court

$3 million

Defense attorneys: Coreen A. Silverman and Isaac McBeth, Richmond


Defendant removed a bleeding mole from
the right index
finger of plaintiff, a diabetic.
Plaintiff requested antibiotics but
the
defendant
declined and advised her that
SILVERMAN
McBETH
she did not need
it. Less than 24
hours after surgery, she notified defendant that she was
experiencing pain. Defendant prescribed Hydrocodone,
which she took without much relief. Several days later,
she notified the defendant that her hand was red, swollen and painful. Defendant immediately diagnosed her
with an infection and prescribed oral antibiotics and
additional pain medications. Defendant examined her
hand on June 23, and admitted her to the hospital for

Juror misconduct was alleged in medmal trial


Injuries alleged: Anoxic brain injury and death
Court: Richmond Circuit Court
Defense attorneys: Sean P. Byrne and Meredith M. Brebner, Glen Allen;
Robert Donnelly and Robyn P. Ayres-Barber, Glen Allen

BYRNE

BREBNER

DONNELLY

Several minutes into the procedure, the patient retched or coughed,


and the gastroenterologist removed
the endoscope. She coded, and ultimately, a breathing tube was successfully placed by an EMT. The patient was transferred to the hospital,
where she was diagnosed with anoxic brain injury and passed away six
days later.
The plaintiff filed a motion chalAYRES-BARBER
lenging the verdict based on an allegation of juror misconduct and outside influence. An alternate juror alleged that a fellow
juror had told her she had consulted with a third-party
physician friend during trial. The issue was briefed and
affidavits were presented. After a hearing with testimony from the jurors, the trial court denied plaintiffs motion and upheld the verdict.

This medical malpractice trial involved the death of a


patient after an arrest and code during an upper endoscopy. Plaintiff alleged that the defendants were negligent in their pre-procedure planning, performance of the
sedation and endoscopy, and that the resuscitative efforts did not meet the standard of care. After a four-day
trial and two hours of deliberation, the jury returned a
verdict in favor of all defendants.
Plaintiffs decedent, 60, was scheduled for an outpatient
upper endoscopy with the defendant gastroenterologist.

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Virginia Medical Law Report

Virginia Lawyers Media, May 2016|Page 11

MILLION-DOLLAR DEFENSE VERDICTS


VIRGINIAS MILLION-DOLLAR MED-MAL DEFENSE VERDICTS OF 2015
$2,900,000

$2,500,000

Docs records contradicted plaintiffs


version of events

Closure device slipped out of place


during heart surgery

Injuries alleged: Pain and suffering due to alleged negligence in diagnosis and treatment

Injuries alleged: Complications from cardiac procedure causing stroke


leading to significant neurologic injury and profound disability

Court: District of Columbia Superior Court

Attorneys for defendant: Sean P. Byrne & John E. Peterson Jr.,


Glen Allen

Defense attorneys: Stephen Altman and Judd Altman, Fairfax


Plaintiff
underwent an ACL
reconstruction
with a hamstring graft. Afterwards, plaintiff
presented
to
defendants
office for her
post-operative
visit.
Plaintiff
STEPHEN ALTMAN JUDD ALTMAN
alleged that she
told defendants
of a fever, chills, pain and nausea. Defendants denied
any mention of fever or chills. The medical records of
the defendants as well as the subsequent treating physicians contradicted plaintiffs version of events. Plaintiff claimed that administration of IV antibiotics at the
first post-operative visit would have prevented her joint
infection and subsequent bacteremia. The jury deliberated for three hours and returned a verdict in favor of
all defendants.

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The plaintiff,
48, was a cabinet finisher. He
previously underwent triple
bypass surgery.
During routine
follow-up after
the bypass surgery, plaintiff s
treating cardiolBYRNE
PETERSON
ogist diagnosed
an atrial septal
defect a hole in the atrial septum. The cardiologist referred plaintiff to the defendant interventional cardiologist, who had experience treating these
defects. The defendant physician sought to close the
hole with device known as an atrial septal occlude.
During the closure procedure, the device slipped out
of place, ultimately requiring open-heart surgery to
retrieve the occluder and close the defect.
Following open-heart surgery to remove the device,
the plaintiff had an embolic stroke, which he attributed
to the ASO blocking the left ventricular outflow tract.
The plaintiff s expert in essence opined that the
device must have been too small, causing it to embolize. The opposing experts offered conflicting theories
and analysis of the measurement of the size of the
device and the reasons why the device came out of

position and could not be readily retrieved.


The defense argued that the defendant physician accurately sized the hole, but variations in the anatomy
and heart tissue were such that the device did not stay
in place. The trial lasted five days. After getting an Allen charge, the jury returned a defense verdict after
five hours.

$2,200,000
Child with sleep apnea died of cardiac
arrhythmia after surgery
Injuries alleged: Wrongful death
Court: Fairfax County Circuit Court
Defense attorneys: Richard L. Nagle and James N. Knaack, Fairfax
Plaintiff s
decedent,
a
5-year-old male
with history of
chronic
severe
obstructive sleep
apnea,
underwent a tonsillectomy
and
adenoidectomy
surgery (T&A)
NAGLE
KNAACK
to seek relief
from the ongoing obstructions in the airway. The patient tolerated the
procedure well and was discharged after appropriate
post-anesthesia care unit observation and evaluation.
Several hours later, the plaintiff, decedents mother,
found him unresponsive on the family room couch and
911 was called. Despite significant resuscitative efforts,
the decedent was pronounced dead at the hospital. The

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Virginia Medical Law Report

Page 12 | Virginia Lawyers Media, May 2016

MILLION-DOLLAR DEFENSE VERDICTS


VIRGINIAS MILLION-DOLLAR MED-MAL DEFENSE VERDICTS OF 2015
medical examiner found that the decedent died of a cardiac arrhythmia of unknown etiology.
Plaintiff filed suit in the Fairfax County Circuit Court,
alleging that the decedent was not an appropriate patient for outpatient T&A because he had severe obstructive sleep apnea.
Defense standard of care experts testified that the defendant physicians care and plan for the T&A surgery
were appropriate and reasonable for the patient in that
case. A defense causation expert testified that genetic
testing from DNA samples kept by the medical examiners office found gene mutations that show the decedent
had a rare inheritable cardiac conduction disorder called
Brugada Syndrome, which is known to cause sudden
cardiac death.
After a five-and-a-half day trial, the jury deliberated
for approximately 90 minutes and returned a defense
verdict.

$2,150,000
Bone gave way unexpectedly during
back surgery
Injuries alleged: Laceration to the aorta during spine surgery
Court: Richmond Circuit Court
Defense attorneys: Ronald P. Herbert and Todd D. Anderson, Richmond
Plaintiff, a 51-year-old nurse with a history of back
surgery, underwent surgery to fuse four vertebrae using a minimally invasive technique. A preoperative
DEXA scan confirmed good bone quality to support a
fusion. Surgery proceeded uneventfully at L4-5 and
L3-4. However, when using a Cobb elevator to remove
the disk at L2-3, the vertebral body gave way, causing
the instrument to slip anteriorly. Shortly thereafter,
her blood pressure dropped and an injury to the great

vessels was suspected. The patient coded and


had to be resuscitated on the
operative table.
A vascular surgeon was called
who repaired a
rent in the aorta but the paHERBERT
ANDERSON
tient
required
significant blood
transfusions. Plaintiff proceeded to trial against the
orthopedic surgery group, but not the surgeon and
claimed she suffered an anoxic brain injury, gait problems and an inability to return to work. At trial, the
defense produced expert testimony that the injury
was not foreseeable, particularly in light of the DEXA
scan which revealed adequate bone quality. A defense
radiologist reviewed postop images showing the location where the bone gave way, causing the instrument
to slip leading to the injury and refuted the claim of
anoxic brain injury. The jury deliberated for approximately 90 minutes before returning a defense verdict.

$2 million
Patient coded multiple times during
placement of catheter

sis catheter. Her


medical history
was significant
for two failed kidney transplants,
longstanding
dialysis
use
(15 years), coronary artery disease and hypertension. Because
WALKINSHAW
of her years of MITCHELL
dialysis and diseased and scarred vasculature, the decedent had one remaining viable vein for dialysis access, namely, her left
internal jugular. The defendant interventional radiologist removed the infected catheter and placed a temporary one without incident. Antibiotics were started to
treat the patients infection and once that resolved, the
plan was to insert a permanent dialysis catheter.
Decedent was cleared for permanent catheter exchange. Problems arose and the defendant suspected a
perforation somewhere in the superior vena cava. Efforts to repair were unsuccessful and the decedent died.
Decedents surviving husband of 37 years sued the interventional radiologist and the hospitalist who ran the
code for wrongful death. The interventional radiologists
experts testified that the defendants multiple attempts
to diagnose and repair the perforation were timely, had
to be aborted when she arrested, and that the decedent
passed away in spite of his efforts, not because of them.
The jury heard evidence for three days. They deliberated
on day four for approximately two hours before returning a defense verdict for both physicians.

Injuries alleged: Wrongful death

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Defense attorneys: Byron J. Mitchell and Paul Walkinshaw, Fairfax; Lee


Rutland, Annapolis, Maryland

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Decedent, age 60, was admitted to Inova Fair Oaks


Hospital on June 20, 2012, with an infected hemodialy-

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Virginia Medical Law Report

Virginia Lawyers Media, May 2016|Page 13

MILLION-DOLLAR DEFENSE VERDICTS


VIRGINIAS MILLION-DOLLAR MED-MAL DEFENSE VERDICTS OF 2015
$2 Million
Man diagnosed with blood disorder
discharged from hospital
Injuries alleged: Wrongful death
Court: Norfolk Circuit Court
Defense attorneys: Sean P. Byrne, Glen Allen; Julie C. Mayer, Virginia
Beach (attorneys for emergency medicine physician); Ronald P. Herbert and
Katherine W. Tanner Pilcher, Richmond (attorneys for hematologist)

The patient was to follow up with his established hematologist the next morning.
The decedent was discharged from the hospital in the
late morning, but returned by ambulance later that day.
When he was seen again in the hospital, he had signs
and symptoms of a severe intracranial hemorrhage. The
decedent died the following day in the hospital.
The plaintiff filed suit in Norfolk Circuit Court against
the emergency physician and hematology consultant.
The plaintiff alleged that both the defendants should
have ordered additional treatment, which the plaintiff
alleged, would have prevented the intracranial bleed.
Defense experts countered that the treatment plan
met the standard of care and that steroids were the correct initial therapy for this rare bleeding disorder. After
a five-day trial and deliberation by a jury for less than
one hour, the jury returned a verdict in favor of both of
the defendants.

$2 million
BYRNE

PILCHER

MAYER

HERBERT

On a Sunday morning in 2009,


the 65-year-old decedent presented
to the emergency department with
symptoms of worsening skin rash all
over his body. He had recently suffered from a viral illness. The emergency physician diagnosed a rare
bleeding disorder where the body attacks and destroys its own platelets.
The emergency medicine physician consulted with the on-call hematologist. The physicians agreed
on a diagnosis and a treatment plan.

Small intestine perforated during


gynecological surgery
Injuries alleged: Permanent small bowel injury, extensive scarring, low
back pain due to weakened abdominal muscles

(trauma surgeon
#1) to take down
the
extensive
adhesions. The
defendant
removed the uterus, ovaries and
fallopian tubes.
The patient did
well initially, but
on post-operative
SILVERMAN
day three she be- MITCHELL
came
severely
hypotensive and tachycardic.
Plaintiff was rushed to the operating room for suspected bowel perforation and sepsis. Trauma surgeon
#2 found a small bowel perforation. He did not say anything about it to the family or defendant, but 17 days
later, trauma surgeon #2 finalized his op report, stating
that the cause of the perforation was an abdominal wall
suture. Plaintiff was in a medically induced coma in the
ICU for a month, and she underwent several abdominal
washout surgeries and a complex abdominal wall reconstruction. She sued the defendant for negligently placing a suture through the small bowel when he closed the
abdominal muscles.
The defendants trauma surgeon expert testified that
the small bowel was more likely injured during the difficult lysis of adhesions not from a suture.
After four days of evidence, the jury deliberated for
three hours before returning a defense verdict.

Court: Fredericksburg Circuit Court


Defense attorneys: Byron J. Mitchell and Coreen A. Silverman,
Fredericksburg
Plaintiff saw the defendant for longstanding pelvic
pain due to uterine fibroids. A laparoscopic hysterectomy was planned. The defendant started the laparoscopic
procedure but concluded that severe dense adhesions
ruled out laparoscopy, and thus converted to an open surgery. The defendant asked the on-call trauma surgeon

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Virginia Medical Law Report

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MILLION-DOLLAR DEFENSE VERDICTS


VIRGINIAS MILLION-DOLLAR MED-MAL DEFENSE VERDICTS OF 2015
$1,950,000
Plaintiff claims timelier procedure would
have prevented brain injury
Injuries alleged: Wrongful death
Court: Chesterfield County Circuit Court
Defense attorneys: J. Jonathan Schraub and Paige Levy Smith, McLean
Decedent,
a
39-year-old married police officer with two
young sons, had
been struggling
with headaches
accompanied by
nausea and vomiting.
On Oct. 4. he
SCHRAUB
SMITH
was transported
to a small, community hospital, arriving there at 4:39 a.m. The patient
went for his MRI that began around 9:37 a.m. The MRI
showed a colloid cyst with associated significant hydrocephalus of the lateral ventricles. The admitting neurosurgeon was paged and at approximately 10:20 a.m. was
updated on his patients status. The plan was for neurosurgery at 1:00 p.m. The patient was received in the
preoperative holding area at 2:10 p.m. He underwent a
right frontal craniotomy and excision of colloid cyst with
placement of a ventricular catheter.
Post-operatively, the patient did not awaken. He remained comatose for days. Radiologic imaging revealed
that the patient had suffered severe brain herniation,
resulting in multiple strokes and profound brain injury.
The patient was discharged to an acute rehabilitation
facility on Oct. 30. He later died Nov. 18.
The principal allegation against the defendant neurosurgeon was that he breached the standard of care by not
placing a ventriculostomy earlier in time, after receiving
the update on his patient from the ICU nurse at around
10:20 a.m; the jury found no breach of the standard of
care and thus did not reach the issue of causation.

$1,925,000
Patient with history of gastric reflux died
after surgery

dard of care and none of the health care providers who


treated him on that day could have predicted he suffered
from hyperkalemia, which, ultimately, was responsible
for his death.

$1,825,000
Plaintiff said foot surgery was
unnecessary, led to complications
Injuries alleged: Unnecessary surgeries and inappropriate response to
post-operative infection, leading to loss of function in plaintiffs left foot

Defense attorneys: Robert F. Donnelly and Marshall H. Ross, Richmond


Decedent, 47,
was
admitted
to Danville Regional Medical
Center for a split
thickness
skin
graft to his right
forefoot. During
his pre-operative
assessment, the
patient
denied
DONNELLY
ROSS
GERD, but listed
Nexium as a current medication. He denied any other significant medical history. During induction of anesthesia, the patient
vomited and was immediately suctioned and intubated.
The anesthesiologist performed bronchoscopy and gastric lavage while the planned skin graft was completed.
The patient was then extubated and sent to the recovery
room. While in recovery, the patient became tachypneic
with low oxygen saturations. He was reintubated and
sent to the ICU. Labs came back showing his potassium
count was extremely elevated and his heart failed. Resuscitative efforts were unsuccessful.
Plaintiffs evidence alleged that the pre-operative
anesthesia work-up negligently failed to identify the
patients history of active reflux, which would have warranted intubating the first-time general anesthesia patient and preventing aspiration. Moreover, it was alleged
that defendants should have initiated pre-admission
lab testing, which would have identified any potential
kidney issues. Finally, for a simple grafting procedure,
plaintiff alleged that regional anesthesia, not general,
should have been used.
The defense argued that the defendant met the stan-

$1,550,000

Court: Rockingham County Circuit Court

Docs claimed post-surgery bleeding


was acute, not slow

Defense attorneys: C.J. Steuart Thomas III and Tate C. Love, Staunton

Injuries alleged: Wrongful death

Defendant diagnosed plaintiff


with metatarsalgia, or pain in
the ball of her
foot. Defendant
eventually determined that this
excessive
pain
and pressure on
the ball of the
THOMAS
LOVE
plaintiffs
left
foot was caused
by both positional and structural deformities.
After nine months of unsuccessful conservative therapy, the defendant performed a number of procedures in
a single surgical setting, all of which were designed to
alleviate the metatarsalgia.
Though the first surgery had been successful in alleviating the pain in the ball of plaintiffs foot, the plaintiffs left foot issues were complex. About a year after the
original surgery, another orthopedist rendering a second
opinion referred plaintiff to Dr. Park, a U.Va. orthopedic
foot and ankle surgeon, who eventually determined that
the plaintiff had osteomyelitis, or a bone infection, in her
left heel; he operated and addressed that problem.
Plaintiffs experts alleged that most of the surgeries
performed by the defendant were unnecessary. They further alleged that the osteomyelitis diagnosed and treated by Dr. Park was a result of the defendants inappropriate diagnoses and treatment of plaintiff.
The defendants experts testified that all of the surgeries performed by the defendant were indicated and
adequately performed. After four days of trial and four
hours of deliberation, the jury returned a unanimous
verdict in favor of the defendant.

Injuries alleged: Wrongful death


Court: Danville Circuit Court

racic CT showed concern for aortic dissection. The defendant did not see the decedent at any time during this
presentation to the hospital. Ultimately, the decedent
died due to the dissection and resulting stroke.
Defense experts testified it was not a breach of the
standard of care for the defendant physician not to obtain the consultation to rule out aortic aneurysm, as argued by the plaintiff. On the third day of trial, the jury
returned a verdict in favor of the defendant physician.

$1,750,000
Plaintiff: Aneurysm should have
prompted immediate surgery
Injuries alleged: Wrongful death
Court: Winchester Circuit Court
Defense attorneys: Charles Y. Sipe, Charlottesville; Jessica M. Flage,
Norfolk
The decedent,
58, presented to
the emergency
department with
chest pain. He
reported sudden
onset the day
before. Past medical history was
significant,
including coronary
SIPE
FLAGE
artery
disease
and
ascending
aortic aneurysm, among other concerns.
A chest CT referenced an increase in size of the aneurysm from a previous study where it was previously
noted to be 4.4 cm. The decedent was admitted for observation to be followed by the defendant hospitalist.
The decedent remained on cardiac monitoring through
the night and was discharged home the following afternoon.The defendant signed discharge instructions notifying the patient to call 911 should he have chest pain
or unrelieved pain.
The decedent presented to the emergency department
three days later with an altered mental status. A tho-

Court: Winchester Circuit Court


Defense attorneys: Colleen Gentile and Ruth Griggs, Richmond
Plaintiff
alleged that the
decedent
suffered a slow
bleed beginning
shortly
after
cardiac bypass
surgery,
that
nurses failed to
appreciate same
over the course
GENTILE
GRIGGS
of 10 hours, and
that the decedent
suffered cardiac arrest and brain injury as a result. The
defendants argued that the decedent suffered a sudden
acute bleed within minutes of his arrest, that this was a
known complication of cardiac bypass surgery, and that,
despite extraordinary efforts at resuscitation, brain injury resulted.

$1.5 million
ER patient did not reveal combination of
drugs that led to overdose
Injuries alleged: Wrongful death
Court: Roanoke Circuit Court
Defense attorneys: Joel McCray and Ruth Griggs, Richmond
The
plaintiffs
alleged
that their son,
who
presented
to the emergency
department
after taking an
overdose of Dextromethorphan,
received improper
treatment.
McCRAY
GRIGGS
The defendants
argued that the
son deliberately, with the intent to commit suicide, withheld from providers in the ED information regarding
his recent consumption of Selegiline, an anti-depressant
medication, which reacted with the overdose of Dextromethorphan and resulted in his death. The defendants
sought to present evidence and jury instructions on illegal act, assumption of risk and contributory negligence.
The court allowed evidence and jury instructions on contributory negligence.

$1,200,000
Complications arose during surgery on
broken clavicle
Injuries alleged: Laceration of the subclavian vein during clavicle surgery
Court: Stafford County Circuit Court
Defense attorneys: Byron Mitchell and Coreen Silverman, Fredericksburg
Plaintiff, age 52 and a mailman with the US Postal Service for 26 years, fell, fracturing his collarbone.

Virginia Medical Law Report

Virginia Lawyers Media, May 2016|Page 15

MILLION-DOLLAR DEFENSE VERDICTS


VIRGINIAS MILLION-DOLLAR MED-MAL DEFENSE VERDICTS OF 2015
The defendant
orthopedic surgeon treated the
plaintiff,
who
was a two-packa-day cigarette
smoker, conservatively with a
sling for three
months. Serial
X-rays, however, MITCHELL
SILVERMAN
revealed that the
fracture was not
healing.
The defendant performed an open reduction internal
fixation surgery on the plaintiff s broken clavicle, affixing a metal plate on the top of the clavicle with multiple
screws. Plaintiff claimed that as the defendant drilled
through the clavicle, he negligently plunged the drill too
deeply beyond the clavicle, catching the subclavian vein
and tearing a 4-5 cm hole in it. Plaintiff flat-lined on the
operating table, but was resuscitated. Because of additional hardware that painfully jabs into his breastbone
when he moves his arm, plaintiff claimed that he cannot
return to the job he loved as a mailman, or any other job.
Defense experts, both of whom publish and teach on
fixation of clavicle fractures, testified that the standard
of care does not require dissection and retraction because doing so jeopardizes blood supply to the already

compromised bone. Instead, the defendant reasonably


relied on his sense of feel, sight and sound as he drilled.
After three-and-a-half days of evidence, the jury deliberated for two and half hours before returning a defense verdict.

$1 million
Bacterial infection worsened after
discharge from hospital
Injuries alleged: Severe septic shock
Court: Halifax County Circuit Court
Defense attorneys: Elizabeth Guilbert Perrow and Daniel T. Sarrell,
Roanoke
Plaintiff, 59, underwent an urgent laparoscopic cholecystectomy that was converted to an open procedure
after his gallbladder ruptured, spilling a large amount
of purulent bile into the abdominal cavity.
Post-operatively, plaintiffs white blood count, BUN
and creatinine levels began to rise after surgery; the levels were higher the next day. At discharge, plaintiff was
switched from intravenous Unasyn to an oral antibiotic

equivalent, Augmentin, at 500


mg three times
per day.
M o m e n t s
after the discharge, results
of the gallbladder fluid culture
became
available, indicating PERROW
SARRELL
the presence of
a bacteria resistant to the Augmentin prescribed for plaintiff at discharge. Early the next day, plaintiff returned to the
hospital for treatment for severe sepsis. His recovery
was difficult and slow.
Plaintiffs general surgery expert testified that plaintiffs condition the rising BUN, creatinine and white
blood countsprior to the discharge was consistent
with an infection that should have been recognized. The
defendants general surgery experts and infectious disease expert testified that the standard of care allows a
surgeon to treat a patients clinical picture and that a
surgeon is not required to obtain culture and sensitivity
results prior to discharge, even when there is possible
contamination of the operative field. The jury deliberated for approximately four hours before returning a
defense verdict.

valawyersweekly.com

Virginia Medical Law Report

Page 16 | Virginia Lawyers Media, May 2016

Bone gave way unexpectedly during back surgery


Defense Verdict
Plaintiff, a 51-year-old nurse with a
history of back surgery, underwent surgery to fuse four vertebrae (L2-L5) using
a minimally invasive technique known
as eXtreme Lateral Interbody Fusion
(XLIF). A preoperative DEXA scan confirmed good bone quality to support a
fusion. Surgery proceeded uneventfully
at L4-5 and L3-4. However, when using
a Cobb elevator to remove the disk at L23, the vertebral body gave way, causing
the instrument to slip anteriorly. Shortly thereafter, her blood pressure dropped
and an injury to the great vessels was
suspected. The patient coded and had to
be resuscitated on the operative table.
A vascular surgeon was called who repaired a rent in the aorta but the patient
required significant blood transfusions.
Plaintiff proceeded to trial against the orthopedic surgery group, but not the sur-

Type of action: Medical malpractice

Demand: $2,150,000.00 (policy limits)

Injuries alleged: Laceration to the aorta during


spine surgery

Offer: None

Name of case: Confidential


Court: Richmond Circuit Court
Case no.: Confidential
HERBERT

ANDERSON

geon and claimed she suffered an anoxic


brain injury, gait problems and an inability to return to work. At trial, the defense
produced expert testimony that the injury was not foreseeable, particularly in
light of the DEXA scan which revealed
adequate bone quality. A defense radiologist reviewed postop images showing
the location where the bone gave way,
causing the instrument to slip leading to
the injury and refuted the claim of anoxic

Tried before: Jury


Name of judge or mediator: Hon. Melvin R. Hughes Jr.
Date resolved: Oct. 29, 2015
Special damages: $1,917,000.00 ($784,000.00
medicals; $650,000.00 lost wages; $483,000.00 life
care plan)
brain injury. At trial, plaintiff withdrew
her nearly $500,000 life care plan when
her medical expert could not support the
claimed damages on cross-examination.

Verdict or settlement: Defense verdict


Amount: $0
Attorneys for defendant: Ronald P. Herbert and
Todd D. Anderson, Richmond
Plaintiffs experts: Faheem Sandhu, MD
(neurosurgery); Robert Banco, MD (orthopedic
surgery); Scott Raber, MD (radiology); Jeffrey
Kreutzer, MD (neuropsychology); Betty Overbey, RN
(life care plan); Albert Jones, MD (PM&R)
Insurance carrier: The Doctors Company
The jury deliberated for approximately
90 minutes before returning a defense
verdict.
[16-T-066]

Doctor tied off wrong vein during pancreas operation


Settlement
The decedent was incidentally diagnosed with a suspected cancerous mass in
his pancreas in September 2012. The cancer was totally confined within the head
of the pancreas, without metastases. The
decedent submitted to a pancreaticoduodenectomy (also known as a Whipple
procedure) performed by the defendant
surgeon on Oct. 15, 2012. The defendant
was a general surgeon, employed by the
hospital, and had not completed a fellowship in hepaticobiliary surgery.
Early in the surgical procedure, the defendant lacerated what he believed to be
the patients middle colic vein. He ligated
(tied off) this vein and continued with the
surgery to resect the pancreas. Approximately 45 minutes later, the surgeon
realized he had not injured the middle
colic vein but instead had lacerated the
superior mesenteric vein, a much larger
vein in the mesentery. The defendant surgeon requested the assistance of a vascular surgeon who made three attempts
to anastomose the lacerated superior

Type of action: Medical Malpractice


- Wrongful Death
Injuries alleged: Elderly male patient encountered
complications during pancreaticoduodenectomy
(Whipple procedure) resulting in death by
exsanguination.

FRITH

ELLERMAN

mesenteric vein before obtaining a patent


anastomosis. Although the Whipple procedure had not been completed at that
time, the defendant surgeon decided to
close the patient and transfer him to intensive care in the hope that he would become hemodynamically stable enough to
return to the OR for the completion of the
Whipple procedure. While in the intensive care unit, the decedent was attended
to by a critical care surgeon and received
multiple units of blood and blood products in an attempt to reach hemodynamic
stability. When further attempts to stabilize the patient failed, the patient was

Name of case: Estate of Confidential Decedent v.


Confidential Surgeon and Confidential Hospital
Tried before: N/A
Date resolved: Mar. 4, 2016
returned to the operating room where he
exsanguinated on the OR table.
The plaintiffs expert opined the defendant was negligent in failing to properly
identify the patients anatomy intraoperatively. Further, that the defendant
failed to properly identify the injured
vein and to repair the same during the
surgical procedure. The defendants experts opined the vein was injured during
a blind portion of the procedure, and did
not constitute medical negligence. One

Special damages: Funeral bills and loss of solace, etc.


Verdict or settlement: Settlement
Amount: Confidential
Attorneys for plaintiff: T. Daniel Frith III and
Lauren M. Ellerman, Roanoke
Plaintiffs experts: Christopher L. Wolfgang, MD;
Johns Hopkins University Medical Center (Baltimore)
Defendants experts: Christian M. Schmidt, MD;
Indiana University School of Medicine (Indianapolis)
defense expert opined that, although injuring the superior mesenteric vein under the mistaken understanding that the
middle colic vein had been injured was a
technical error, it was not a deviation
from the standard of care.
The statutory beneficiaries were the
decedents wife of 62 years, his adult
daughter, and a grandson from a deceased child of the decedent. The case resolved the week before trial.
[16-T-054]

Plastic surgeon removes too much tissue in procedures


$1,800,000 Verdict
A 57-year-old woman with a history of failed gastric bypass underwent a
breast reduction, abdominoplasty with
panniculectomy, and liposuction. Over
the next six weeks, the surgical wound
deteriorated, developing necrosis while
the defendant plastic surgeon saw the
patient, reassured her and waited for
the wound to declare. After a seroma
ruptured, the patient went to the ER in
Norfolk, where another plastic surgeon
took over care and began debriding the
wound. He planned a definitive debridement two weeks later.
The plaintiff s standard of care expert
testified the defendant simply over-did
it he took out too much tissue, tissue
where he knew the blood vessels lived.
The tissue he left slowly died without
vital oxygen because the surgeon cut off
blood supply. The patient was left with
severe lower abdominal scarring and disfigurement, which would require revision
surgery. (The breast reduction was done

Type of action: Medical Malpractice


Injuries alleged: Severe lower abdominal scarring
and disfigurement, which will require revision
surgery.
Name of case: Munoz v. Williams, M.D., et al.
Court: Richmond City Circuit Court
LIVINGSTON

BROOK

properly and was not


an issue in the case.)
On pretrial motions the plaintiff
succeeded in keeping
out risks of the procedure and known
complications
because informed consent was not an issue,
although the defenBOGNAR
dant kept trying to
get around that by referring to red
flags and concerns.

Special damages: $49,938.00 in past medical bills


and $60,000.00-$100,000.00 in future medical bills.
Offer: none
Verdict or settlement: Verdict
Amount: $1,800,000.00

Case no.: CL14-2147

Attorneys for plaintiff: Lee Livingston, Lisa Brook


and Ellen Bognar, Charlottesville

Tried before: Jury

Plaintiffs experts: Darrell L. Henderson, MD

Name of judge or mediator: Hon. Gregory L. Rupe

Defendants experts: Byron Poindexter, MD,


David S. Yoho, MD

Date resolved: Mar. 25, 2016


The defendants standard of care expert testified that although he had never seen an injury like this to one of his
patients, the defendants actions still fell
within the standard of care. An infectious
disease expert testified for the defendants
that the patient did not have a systemic
infection.
The defendant testified the plaintiff
had been loyal to him before she saw

another plastic surgeon in Norfolk. He


insisted that if she had not gone to Norfolk, he would have debrided the wound
himself, which he had already scheduled
to do, and we would not have ended up
in court.
After a three-day trial, the jury deliberated for three and a half hours before
returning a verdict of $1.8 million.
[16-T-060]

The Verdicts & Settlements page in Virginia Lawyers Weekly is a forum for lawyers in Virginia to share results of recent
cases. It is intended as a tool to help in determining case values for trial or settlement. Submissions are provided by one
of the lawyers in the case. Virginia Lawyers Weekly reserves the right to edit submissions for style, language and length.

Virginia Medical Law Report

Virginia Lawyers Media, May 2016|Page 17

Surgeon removed both of plaintiffs kidneys by mistake


$1,200,000 Settlement
In this case, both of plaintiff s kidneys were removed. The patient had a
hydronephrotic left kidney secondary
to a UPJ obstruction (blockage). He underwent a Nuclear Medicine (NM) Scan
to estimate the function of each kidney.
Due to blockage, the left kidney (moiety) functioned at about 20 percent and
the right kidney at 80.6 percent. Plaintiff charged that the surgeon should
have merely drained the excess fluid
and decompressed the obstructed left
organ to allow it maximum utility. If
the renal function had been tested after fluids were drained, the left kidney
would have increased functionality, because the NM scan showed that blood
flow to each moiety was symmetrical.
Instead of draining and preserving the
kidney, the surgeon decided to perform
a left nephrectomy.
Pre-operatively, both the radiologist
and the surgeon failed to notice the
NM study showed a horseshoe kidney,
which means the left unit was joined
to the right by an isthmus, or bridge of
connective tissue. It is the most common renal fusion abnormality and occurs with greater frequency in males.
It was plainly visible on the imaging
study, but simply overlooked.
Plaintiff s experts were to opine that
to plan a left nephrectomy was inappropriate, because a primary repair
would have restored function and the
object is always to preserve viable kidney tissue. This pre-operative mistake
in judgment was exacerbated intra-operatively, when both kidneys were removed. The surgeon documented that
s/he held more tissue in her hand than
is associated with only one kidney and
that she saw a second ureter on the
left. The surgeons operative note even
documents that the patient might have
a horseshoe kidney abnormality.
Intra-operatively, while the surgeon
held the left unit extra-abdominally,
a radiologist was asked if there were

a discrete right kidney still inside the


abdomen. A pointof-care examination
was performed. That
is, presence of a second kidney was confirmed, but no comprehensive exam was
undertaken.
What
both the radiologist
COFIELD
and
the
surgeon
(who also viewed
this ultrasound) failed to appreciate
was that the right kidney which was
tethered to the left one by the isthmus
had been pulled away from the liver
(its normal situs) and over to midline
(center of the abdomen). Because this
malposition escaped both physicians,
neither stopped to review the NM
study for confirmation of the suspected
horseshoe configuration and the surgeon failed to abort the procedure until the differential diagnosis could be
ruled in or out.
Therefore, the surgeon who intended (albeit negligently) to remove only
the left kidney instead pulled both kidneys through the surgical incision and
cut the vasculature. The bilateral nephrectomies left this patient on dialysis for over a year, pending transplant
surgery. During this time, the patient
suffered a stroke (secondary to fluid
imbalances, which are an associated
risk of dialysis) and multiple infections
(peritonitis is also an associated risk of
the therapy).
The defense consisted of a denial.
Defense experts opined that the surgeon never actually removed the right
kidney. The putative grounds for this
opinion was that post operatively the
same radiologist documented a reniform shape (resembling a kidney) on
ultrasound and concluded it was the
right kidney. In depositions, he testified that it never occurred to him that
the surgeon would have removed both
kidneys. Two days later, his partner interpreted another ultrasound and com-

Type of action: Medical malpractice


Injuries alleged: Bilateral nephrectomies
Date resolved: Dec. 9, 2015
Special damages: $5,000,000.00

Attorney for plaintiff: Judith M. Cofield,


Virginia Beach
Plaintiffs experts: Dr. Stanley Kogan, Dr. Theonia
Boyd, Dr. Douglas Gibson

Offer: $1,200,000.00

Defendants experts: Dr. Gearhart, Dr. Merguerian, Dr. Anthony, Dr. Masters, Dr. Appelbaum, Dr.
Arant, Dr. Huff

Verdict or settlement: Settlement

Insurance carrier: multiple

Demand: $1,500,000.00

pared it to the first one; he explained


that the first reniform shape was only
bowel gas. This second radiologist also
saw a reniform shape albeit in a different location. In reality, this, too, was
bowel gas. After these two initial studies, all treaters and experts agreed: no
other imaging showed any renal tissue,
or even a reniform shape. Defense experts could not explain the absence
of both kidneys on imaging, or how the
right kidney disappeared.
Plaintiff s expert pathologist was the
only physician to examine the isthmus
microscopically. She testified to a 100
percent medical certainty (rather than
to a reasonable degree) that the surgeon excised a horseshoe kidney. Defendants expert pathologist viewed
the tissue sample, but never examined
it under the microscope.
Corroboration came from the pathology laboratory. The amount of tissue
surgically excised and tagged in the
path lab corresponded precisely to the
amount of tissue measured pre-operatively on the NM study. Therefore, all
the renal tissue viewed inside the body
before the operation was accounted for
and sitting in a pathology lab. Naturally, plaintiff s clinical course was consistent with bilateral nephrectomies,
as there was no urine output.
Two treating nephrologists also
supported plaintiff s experts, having
documented that their patient was
anephric, or without kidneys. The
transplant surgeon charted that the

need for a kidney transplant was due


to bilateral nephrectomies. However,
the judge refused to permit this entry
into evidence, ruling it hearsay, having
been based on the transplant surgeons
conversation with the nephrologist. In
so holding, the court rejected the argument that this was part of the chart
was admissible as a clinicians present
day impression under 8.01-397.1 and
Virginia Rule of Evidence 2:406.
The hospitals internal investigation was also ruled inadmissible, as
privileged under The Patient Safety
and Quality Improvement Act (PSQIA
or Act), 42 U.S.C. 299b-2, as implemented by 42 C.F.R., Part 3. Under the
federal law, privileged work product is
narrowly defined as any data, report
or analysis which can improve patient
safety, or health care outcome, and
which is in fact reported to a PSO, 42
U.S.C. 299(b)-21(7); see also, 42 U.S.C.
299b-21(7)(B)(ii). This ruling obtained
even though the facility failed to comply with the requirement that an investigation be forwarded to a federal
repository.
The issue of admitting a clinicians
present day impressions and a hospitals lack of privilege for failure to
comply with the Patient Safety Act was
mooted by settlement. The case settled
against the surgeon for $1.2M and is
now to proceed against the radiologist
who failed to recognize the isthmus on
the NM study.
[16-T-011]

Failure to disclose state of womans gallbladder resulted in amputations


$1,800,000 Settlement
On Jan. 23, 2015 the patient underwent a laparoscopic cholecystectomy
performed by a general surgeon. After
being discharged on Jan. 23, the surgeon
did not disclose to the patient, nor to her
family, nor did the surgeon note in his operative report, that gallbladder remnants
were left in the fossa and/or the peritoneum. The day following the surgery, the
patient suffered significant and immediate sequelae including nausea, intense
abdominal pain and general malaise.
As a result of her worsening conditions,
the patient returned to the hospital on
Jan. 25. The surgeon was called by the
emergency room physician, who indicated
to the physician on duty, normal surgery,
uneventful as recorded in the emergency
department documentation note. Thereafter, the patient condition degraded significantly, resulting in her being airlifted

to a tertiary referral
facility.
On Jan. 26, an open
procedure was performed at the tertiary
facility, wherein the
surgical team encounter[ed] about 3
L[iters] of pus mixed
with bile, and also
encountered an obviFAVALORO
ous [iatrogenic] injury
to the common bile
duct in the intrahepatic site a couple of
liver lacerations The common bile duct
seemed to have Endo-GIA staplers and
these Endo-GIA staplers were progressing into the intrahepatic section of the
duct. In the intrahepatic section, there
was a dehiscence of the staple line where
all the bile was pouring. Given the rapid
blood pressure decline experienced by the
patient during the procedure, the surgical team made the decision to terminate

Type of action: Medical Malpractice

Verdict or settlement: Settlement

Injuries alleged: Bile duct injury, full amputation


and metatarsal amputation of all fingers and toes

Amount: $1,800,000.00

Date resolved: Mar. 22, 2016


the exploratory surgery and resume at a
later date.
On Jan. 28, a subsequent surgery was
performed, wherein it was found that
this was a remnant of the gallbladder
neck, [and] on further inspecting the gallbladder fossa, it was found that part of
the gallbladder was intrahepatic and was
still in situ. The size of the remaining
gallbladder removed at the tertiary facility was approximately the same size as
what had been originally moved by the
surgeon, as evidenced by the surgical pathology report.
The failure to disclose and properly
document the true nature of the original

Attorneys for plaintiff: Mark J. Favaloro,


Virginia Beach
laparoscopic cholecystectomy, in terms of
the remnant gallbladder (as well as the
CBD iatrogenic injury), directly led to the
sepsis suffered in January of 2015, and
the circulation compromise secondary to
severe low blood pressure. As a direct result, the patient had a partial removal of
all 10 fingers in May and transmetatarsal
amputation on both feet in July of 2015.
On Jan. 22, 2016, a detailed demand
letter was mailed to the surgeon in question. Negotiations ensued with the surgeons insurer. The case settled 47 days
after demand, before suit was filed and
before defense counsel was retained.
[16-T-052]

Nursing home resident rolled off bed as nurse changed linens


$662,500 Settlement
Plaintiffs decedent was a 90-year-old
woman and a full-assist resident of defendant nursing home. While a nurse
was changing the patients bed linens, the
patient was rolled off of the bed and onto
the floor by the nurse. As a result of the
fall, the patient sustained fractures of her
right lower leg, right ankle, right shoulder and left leg. Due to these fractures,

BENNETT

the patient required


extensive treatment
and ultimately, amputation of the right leg
below the knee.
In
the months following
the fall, the patient
developed 13 wounds
on her legs, feet, heels
and buttocks while
under the care of the

Type of action: Nursing Home Malpractice

Amount: $662,500.00

Tried before: Mediation

Attorneys for plaintiff: Carlton F. Bennett,


Virginia Beach

Verdict or settlement: Settlement


defendant nursing home.
Defendant
nursing home initially denied all responsibility for the patients injuries but the
nurse, by way of deposition, ultimately

acknowledged her failures with respect


to her care for the patient. The matter
subsequently settled for $662,500.
[16-T-034]

Virginia Medical Law Report

Page 18 | Virginia Lawyers Media, May 2016

Womans family claimed failure to diagnose infections


Defense Verdict
Janet Roberts, a 70-year-old wife and
mother of four, developed a sacral decubitus ulcer at home, which required a hospital admission and antibiotics for a positive wound culture. She was discharged
to the defendant nursing home on April
26, 2011, with the defendant physician as
her attending. Within days she developed
diarrhea, which plaintiff contended was
persistent and accompanied by nausea
and vomiting. The defendant physician ordered C. diff testing on May 6, but the testing was not done because a sample could
not be collected. On May 17, the patient
was lowered to the ground by a CNA in
the bathroom and was sent to the hospital.
At the hospital, no acute fracture was
found, but the patient was diagnosed
with a C. diff infection. She was hospitalized for 11 days and returned to the
nursing home. At the end of July 2011,
the patient was diagnosed with a femur
fracture, which she told her providers
happened as a result of the bathroom incident on May 17. She underwent a right
ORIF procedure on Aug. 2, was put on antibiotics, and on August 5, 2011 returned
to the defendant nursing home. She soon
developed diarrhea again, along with other symptoms. Between Aug. 5 and 20, no
C. diff testing was ordered, and the patient was put on broad spectrum antibiotics for other infections. Towards the end
of the admission, the patient developed
severe hypotension, and on Aug. 20, she
was sent to the hospital. The patient was
found to be in septic shock, and an abdominal CT showed diffuse thickening of
the colon. She also had pneumonia. A sur-

Infection |

Type of action: Medical malpractice/wrongful death

Verdict or settlement: Defense Verdict

Injuries alleged: Wrongful death of a 70-year-old


woman from C. diff colitis

Amount: $0

Name of case:
Court: Pulaski County Circuit Court
Case no.: CL 13-943
RAWLS

LEWIS

Tried before: Jury


Name of judge: Hon. Bradley W. Finch
Date resolved: Mar. 19, 2016
Special damages: $220,000 medical bills; $6,000
funeral expenses
Demand: $4,000,000 (Complaint); $925,000
(pretrial demand)
Offer: $0 from the physician

SIPE

FLAGE

geon was consulted for C. diff colitis, who


determined she was not a surgical candidate due to hypotension and her comorbid conditions. A DNR Order was entered,
and the patient died on Aug. 22, 2011.
The case was tried against two sets of
defendants, the nursing home and the attending nursing home physician, and involved two separate nursing home admissions. The plaintiffs experts contended
that the defendants failed to timely recognize the two C. diff infections; to recognize that broad spectrum antibiotics put
the patient at risk for C. diff; and to order
C. diff testing or treatment. They further alleged that due to the persistent C.

Attorneys for defendant: Brewster S. Rawls,


Richmond, and Kristina L. Lewis, Fairfax; Charles Y.
Sipe, Charlottesville, and Jessica M. Flage, Norfolk
Attorneys for plaintiff: Robert W. Carter Jr.,
Appomattox
Defendants experts: Dennis ONeill, MD (internal
medicine), John Schaeffer, MD (infectious disease),
Daniel Neumann, MD (gastroenterology), John N. Hall,
MD (orthopedic surgery), Michelle Sutton, RN
Plaintiffs experts: David Peura, MD (gastroenterology),
Herbert DuPont, MD (infectious diseases), Christopher
John, MD (orthopedic surgery), Susan Robinson, RN
Insurance carrier: Hudson Insurance Group
(physician), self-insured (nursing home)

diff diarrhea during the first admission,


during the bathroom incident the patient
sustained the fracture diagnosed two
months later. During the final admission,
plaintiffs experts contended the patient
had a clear C. diff recurrence, yet the defendants negligently ordered and administered medications that exacerbated the
infection. This all predictably resulted
in C. diff colitis, sepsis, septic shock, and
death, all of which could have been avoided with timely C. diff antibiotics.
The defendants presented evidence that
Ms. Roberts was a very complicated patient with an extensive list of underlying
problems, including multiple gastrointestinal diseases and procedures. Throughout both admissions, she had intermittent

diarrhea, but this was not a significant


change from her baseline, and nursing
home staff regularly monitored her condition. Defendants experts acknowledged
that while the criticized medications are
arguably not given to C. diff patients, this
patient needed the medications for pain
control and to prevent other life-threatening conditions. Defendants experts also
contended that the patients septic shock
and death was the result of ischemic colitis, and that a positive C. diff test on Aug.
20, was an ancillary finding.
After five days of evidence, the jury deliberated for about two hours before returning a defense verdict in favor of all
defendants.
[16-T-053]

to making the report or the disclosure,


such as patient lawsuits for breach of
duty, breach of confidentiality or defamation. Just reporting covered conduct to
the state health department did not invoke such a broad grant of immunity to
the doctor, Alipio argued.

HIV status, or a misdemeanor charge for


a willful violation of a patients confidentiality protection.
In order for the language of Code 32.138 to be consistent with the penalty provisions, Shannon said, the statute must
be read as providing immunity from the
specified civil and criminal penalties
that arise from improper disclosures.
The Fairfax court declined to take
such an expansive reading of the statute
as advocated by the defendant, and denied the plea in bar.
Because of the way the case had been
pled, with the sequence of steps that included the health department investigations and the defendants self-reporting,
the case appeared to raise a novel question
about Virginias reporting requirements.
The defense took a unique and creative approach to the mandatory reporting statutes, said Alexandria lawyer Sandra A. Rohrstaff, who represented Alipio.
Fairfax lawyer Courtney A. Parecki,
who represented the defendant, declined
to comment on the case.

n continued from page 1

Alipio felt dizzy and had abnormal blood


pressure, she said, and after discharge,
she suffered increased dizziness, nausea, vomiting, diarrhea, gastro-intestinal
symptoms, abdominal discomfort and she
had a low-grade fever.
Alipio visited the Prince William Medical Center on May 25, where a doctor
quickly admitted her to the critical care
unit. She stayed primarily in that unit
until June 3, being treated for the streptococcus infection.
The Virginia Department of Health and
the Fairfax County Health Department
investigated these events and concluded
the source of Alipios infection was an
employee or agent of Fair Ridge, Shannon said in Alipio v. Fairridge OBGYN
Associates PC.
At some point following these investigations, the source of the infection
was disclosed to Plaintiff, who filed suit
against Fair Ridge for medical malpractice, Shannon wrote. As well, the defendant practice self-reported to the Virginia Department of Health that someone

on its staff had been infected, and that


Alipio had been exposed to this person,
which ultimately led Alipio to learn of the
source of her infection.
The defendant medical practice argued
that Alipios med-mal claim was barred
by Va. Code 32.1-38, and the state
health departments confidentiality policy and regulations, because the plaintiffs
case depended upon information she obtained as a result of the state and local
investigations.
Under the statute and regulations, physicians and medical care facilities who
report instances of certain communicable
disease at their facilities are immune
from civil liability or criminal penalty connected therewith, the defendant argued.
That immunity covered disclosure of patient information and liability for the conduct of the practices employees disclosed
in the report, unless the injury could be
attributed to gross negligence or malicious
intent, under the defense theory.
The plaintiff countered that the statutory immunity covered claims connected

Narrower immunity

Shannon surveyed similar statutes


from other states and assessed the larger
context of the Virginia reporting requirement, noting that it was anchored in a
Virginia Code chapter covering disease
prevention and control.
Code 32.1-38 is focused on providing
immunity for the reporting or disclosure
of patient information whether the
grievance is due to a breach of patient
confidentiality, or errors underlying a
claim for defamation rather than providing immunity for the misconduct described in the reports themselves, Shannon wrote.
Penalties for improper disclosures can
include a payment to a local literary fund
for unauthorized disclosure of a persons

Virginia Medical Law Report

Recovery |

n continued from page 1

not being able to employ himself at the


practice.
Boceks own conduct in hiring the
consultant without full disclosure of his
history with the target medical practice
amounted to unclean hands which kept
the court from allowing Bocek to recover
assets through the remedy of a constructive trust.
Defense experts put the value of
the practice at $620,000, based on the
practices assets, as opposed to projected
income.
In March, Bocek walked away with
$156,000 in compensatory damages, plus
costs and postjudgment interest.

Incomplete history

Bocek had been fired from the practice


in 2010 and later sought to purchase it
from the estate of the physician-owner.
Consultant Joseph Amato terminated
his contract with Bocek after learning
Bocek had been fired for sexual harassment and writing narcotics prescriptions
for himself using another doctors prescription pad. The estate that owned the
allergy practice already had petitioned a
Pennsylvania court to approve sale of the
practice, and Amato formed another business entity with an investor to finalize
purchase of the medical practice.
After buying the practice, Amato said
the company was worth somewhere
south of $600,000. He changed his valuation of the practice after insurance company audits of billing procedures caused
gross revenues to drop tremendously, he
explained to the court. A 2010 valuation
report prepared by Hempstead & Company valued the practice at $620,000, based
on its assets.
Boceks unclean hands precluded the
remedy of a constructive trust, U.S. District Judge James C. Cacheris said after
the one-day bench trial.
Cacheris said the plaintiff doctor intentionally misled the defendants with

Prescription |
provide the information to the prosecutor
two weeks later.
Davis was denied bond and spent 16
days in jail. She alleged she suffered from
medication withdrawal, which caused her
to attempt suicide. The deputy allegedly
misinformed the prosecutor that the deputy had intelligence suggesting Davis
had been involved in other prescription
fraud activity. The commonwealths attorney initiated prosecution, but the charges
ultimately were dismissed.
Davis lost her security clearance and the
government contracts she had been working on, her suit claimed.
Hudson dismissed Davis claims against
Greer and Wal-Mart, without prejudice.
Hudson said one may certainly question
the wisdom or prudence of Greers decisions throughout this incident, but the
allegations do not plausibly amount to neg-

respect to both the formation and the


objective of their fiduciary relationship.
Bocek told Amato that the high salary
paid to Bocek, as the only board-certified
allergist in the practice, prompted his
termination. He neglected to mention the
sexual harassment and prescription forgery complaints, as well as the fact that he
was subject to no-trespass orders to keep
him away from ACC.
The court credited Amatos testimony
that he would never have engaged Bocek
as a client, had he known there was more
to the doctors departure than his high
salary. Boceks contentious history with
ACC and character flaws would have
affected financing options available for
acquisition of the practice, according to
Amato.
Bocek also distorted the reason for
keeping his name out of the negotiations
to purchase ACC, telling Amato it was
because Bocek was still negotiating his
severance package with the practice. This
statement was a deceivingly incomplete
truth, Cacheris said.
Despite the deception affecting an equitable remedy, Bocek was entitled to compensatory damages, the court said. Bocek
asked for $1.2 million in lost opportunity
to buy ACC; $2.1 in lost income; $600,000
in mitigation expenses; $150,000 in payments the purchasing entity distributed
to Amato and an investor; $6,000 in funds
Bocek paid to the consultant for its services; and $250,000 in emotional damages.
The court awarded Bocek $150,000 in
lost income based on the sum the consultant and an investor paid themselves in
2011 as practice managers. Bocek also
won an additional $6,000, the sum he
paid for the consultants services.
Cacheris denied the doctors remaining
claims for damages, including his request
for attorneys fees.
Bocek has filed an appeal, according to
court records.

n continued from page 3


ligence, the court said. The fact that the
prescription was not in compliance with
federal regulations, coupled with the PMP
information, was enough to give Greer legitimate reason to question this prescription and be concerned, the court concluded.
Greer had no duty under Virginia law
to follow up on her earlier call to law enforcement, the court said. Rather, it was
reasonable for her to assume that law enforcement would have been in touch with
Dr. Ahmed as part of their investigation.
And Virginia law provides a safe harbor
for pharmacists and other providers in reporting information to law enforcement.
Hudson said Davis civil rights claim
against Harney would proceed on the merits.
Davis and the deputy have each filed
motions for summary judgment, and
trial is set for June 6, according to
court records.

Virginia Lawyers Media, May 2016|Page 19

Balance bill |
Martinsville in 2014 when other
staffers noticed he was not feeling
well. A co-worker drove him to an urgent care facility, but the staff there
called an ambulance to take him to
a hospital.
Dennis was having chest pains
that recalled an earlier heart attack,
and nitroglycerin did not seem to
relieve his pain, according to a summary by Henry County Circuit Judge
David V. Williams. Dennis wife said
he was crying upset [and] agitated, the judge wrote.
Dennis arrived at Memorial Hospital of Martinsville & Henry County
in acute emotional and physical distress, Williams said.
While lying in a hospital bed
awaiting treatment, a hospital staffer had him sign a Financial Responsibility Agreement. The agreement provided that the patient was
obligated to promptly pay the hospital in accordance with charges listed
in the hospitals charge description
master or CDM.
Dennis was in the hospital two
days and underwent surgery to
place five stents in his arteries, his
lawyers said.

At issue: $83k

The hospital said the bill came to


$111,115.37. Dennis had health insurance, and he and his insurer paid
the hospital $27,254.95.
But Dennis insurance carrier did
not have a contract with the hospital
for reduced reimbursement rates. He
did not have Medicare or Medicaid.
The hospital sued Dennis for the remaining balance of $83,860.42.
Dennis asked a judge to declare
he did not owe anything beyond
what he already paid. The hospital
responded with a counterclaim for
the full amount, based on both contract principles and on an implied
contract theory.
Williams tried the case without a
jury on Feb. 25.

No mutual assent

In a March 31 letter opinion, Williams rejected the hospitals contract


and ruled that the reasonable value of Dennis medical care was just
$27,778.84. Dennis would owe the
hospital only $523.89 in addition to
the previous payments.
The opinion is Dennis v. PHC-Martinsville Inc.
The hospital failed to meet its burden of proving that the parties mutually had made a binding contract, the
judge said.
In the first place, the Financial Responsibility Agreement was a contract of adhesion, the judge decided.
So far as Dennis knew, his life
was on the line. His hope of receiving medical treatment lay in signing
the papers he was presented, Williams said.
He quoted U.S. Supreme Court
Chief Justice John Roberts: Your
money or your life is a coercive prop-

n continued from page 1


osition, whether you have a single
dollar in your pocket or $500.
Williams found the hospitals
secrecy about its charges also suggested the contract was not a product of mutual agreement.
After Dennis was billed, the hospital refused to allow him to have a
copy of the CDM or even look at a
copy. In litigation, the hospital declined to provide a copy until the
court ordered production, the judge
said.
Although the hospitals contract
referred to charges in the CDM, the
hospital treated the contents of the
CDM as double secret, or confidential or proprietary information, Williams said.
No definition of the word mutual
encompasses a situation in which all
of the information about a critical
contractual element is held by one of
the parties, who refuses to share it
with the other party, Williams said.

25 percent solution

Even if there were no enforceable


written contract, both sides agreed
the hospital was entitled to compensation for the reasonable value
of Dennis treatment. Dennis contended the amount already paid
was sufficient.
Williams pointed to testimony
from officials that the hospital would
accept 25 percent of its charges as
full payment if an uninsured patient
arranged for pre-payment. The judge
settled on that amount for Dennis
obligation.
Martinsville lawyer James W.
Haskins, who represented Dennis,
said, as far as he knows, the decision
is the first in the country where a
balance billing challenge went to a
full trial.
He said the evidence revealed the
illusory nature of the nominal hospital charges.
One tenth of one percent actually
pay a charge master rate, Haskins
said. The lawyer said his firm is pursuing similar cases with several other
hospitals in Virginia, contending the
hospitals official rates are little more
than bargaining chips.
The charge masters are always
secret. None of the hospitals will let
patients look at the charge master,
said Scott C. Wall, another Dennis
attorney.
Welcome to the world of hospital
billing practices. It is mind boggling
what goes on, Haskins added.
The Martinsville hospital, owned
by
Tennessee-based
LifePoint
Health, was represented by John S.
Buford of Richmond. He did not respond to a request for comment on
the trial and the hospitals billing
practice.
A spokesperson for the Virginia
Hospital and Healthcare Association
declined to comment on hospital balance billing practices.