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Volume 13, Number 6

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JANUARY 2016

A record in
Augusta Co.
Med-mal verdict of $1.75M
returned in conservative area
By Peter Vieth
A pastor who claimed negligent
knee surgery forced the amputation of her right leg won a $1.75
million verdict against her doctor in
a community known for conservative juries.
The Dec. 15 verdict appeared to tie
the largest ever tort verdict in Augusta
County.
The jury returned the award for
74-year-old Mae Reeder, a once-active
minister who now is largely confined to a
wheelchair, according to her attorney.
The insurance company for the doctor
and his practice group offered $500,000
before trial, but pulled back the offer the
day before trial, according to Reeders lawyer, R. Lee Livingston of Charlottesville.
Reeders last demand before court was
$850,000, Livingston said.
The insurers decision-makers did not
believe an Augusta County jury would
favor the plaintiff s claim against a wellknown local physician, Livingston said.
Nevertheless, Reeder prevailed and recovered more than her initial demand.

Nurse expert opinion rejected in death case


By Peter Vieth
Parents lost their chance to sue
for medical malpractice in the
death of their 3-year-old son
when they used an expert opinion from a nurse to challenge
care by two defendant neurologists, a Norfolk Circuit Court
ruled on Nov. 12.

A cut too far

Virginias medical malpractice statutes require a plaintiff to certify that


the plaintiff has a written opinion
from an expert addressing the standard of care and alleged negligence
prior to serving a lawsuit on the defendants.
In the Norfolk case, the court said
the plaintiffs could not have reason-

Reeder underwent surgery in March


2013 for total knee replacement on both
legs. She was diabetic and her past medical history included a stroke and cardiac
catheterization with stent placement.
After both operations were completed,
orthopedist Kenneth A. Boatwright discovered that he had inadvertently lacerated

n See AUGUSTA on PAGE 10

ably believed that the expert opinion


they obtained from a nurse addressed
the standard of care for the two defendant neurologists in the case.
Norfolk Circuit Judge David Lannetti found the omission to be fatal in
Susko v. Toor.
Dismissal of the case is not automatic
under the statute, Virginia Code 8.0150.1. But the Norfolk courts citation of
a string of cases from around the commonwealth dating from 2005 documents
ample support for invoking the death
penalty dismissal with prejudice for
deficient pre-service certifications.

Hospital infection

Christopher and Tammy Susko nonsuited their first wrongful death action in July 2012, filed after the death
of 3-year-old Christopher on Aug. 18,
2010. They refiled the same claim
against neurologists Svinder S. Toor,

MD, and Larry Eugene White, MD,


and their practice group in December
2013 and served the complaint on the
defendants in December 2014.
When the defendants requested information about the expert certification
required by Code 8.01-50.1, the Suskos
provided a certification prepared by
Nurse Joahanna D. Evans Budge, dated
Dec. 5, 2014.
In their suit, the Suskos alleged
Christian sustained a lumbar puncture and developed pneumonia and a
staph infection during his treatment
in June and July 2010 at Childrens
Hospital of the Kings Daughters in
Norfolk.
Nurses employed by CHKD failed to
adequately turn or reposition Christian, the parents alleged, which caused

n See NURSE on PAGE 11

Fburg jury returns $1.8M in gallbladder surgery case


By Peter Vieth
Complications from gallbladder
surgery led to a $1.875 million jury
verdict this month for a patient who
was left with permanent injuries.
The Fredericksburg jury rejected the
patients claim against her surgeon Jan.
6, but returned the verdict against the
doctors practice group where a nurse was
accused of failing to act on reports of ominous post-surgical problems.
The doctor, Bradford L. King, removed
a gallstone in laparoscopic surgery Sept.
13, 2012.
The patient, Christine Hommel,

claimed the doctor mistakenly removed


a segment of her bile duct, which drains
bile from the liver to the intestines. With
bile draining directly into her abdominal
cavity, she developed bile peritonitis and
became very ill, said her lawyer, Benjamin W. Glass of Fairfax.
Hommel said she experienced two
weeks of severe pain and other symptoms
after the surgery, but could not get the
staff at the doctors office to realize that
she was having abnormal complications.
Nine days after surgery, when she reported spitting up black bile, a nurse told
her to go to an emergency room, Hommel
alleged. As with earlier calls, the nurse
did not report this event to the doctor, according to the lawsuit.

Hommel went to an urgent care center


and eventually was referred to specialists to repair the damage and address
the massive infection from the buildup
of bile. She had three major surgeries in
three years following the gallbladder operation.
She can expect future surgeries, medical monitoring and a lifetime of medication, Glass said.
Glass said his client turned down a
$600,000 offer before trial, but he declined to reveal more details about demands and offers.
The state-imposed recovery limit in the
case was $2.05 million, he said.
The cap forces these cases to get tried
because the cap means their exposure is

limited, Glass said.


He claimed he had a solid case.
I had an A-plus client with a really bad
injury and I had grade-A facts, Glass said.
The defendants were represented by
Robert F. Donnelly of Richmond.
It was one of those good news, bad
news things, Donnelly said of the jurys
split decision. He noted the doctor was
cleared of negligence.
I was certainly gratified the jury exonerated my client with regard to the
surgery. I was disappointed they found
against the group, he said.
Glass said the case produced a minimum of pretrial conflict.
There was not the typical wrangling
over every issue in the case, Glass said.

INSIDE

Why every healthcare


provider needs counsel
at a deposition
Page 4

Page 3 |Negligence

Page 3 | Missed Diagnosis

Page 5 | Stark Law

Patient protection law supports negligence


claim

Verdict is $2.75M in missed diagnosis


case in Abingdon

CMS finalizes changes and clarifications


to Stark Law regulations

Page 2 | Virginia Lawyers Media, January 2016

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regulated healthcare industry.
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Virginia Medical Law Report

Virginia Lawyers Media, January 2016|Page 3

Patient protection law supports negligence claim


By Deborah Elkins
A Virginia patients rights statute
can support a negligence per se
claim against a hospital filed after a
hospital attendant sexually assaulted a psychiatric patient, a Lynchburg Circuit Court has ruled.
The statute, Virginia Code 37.2-400,
is intended to protect patients receiving
services at hospitals funded or operated
by the Virginia Department of Behavioral Health & Developmental Services,
according to Culpeper lawyer J. Michael
Sharman, who represents the plaintiff in
Parisi v. Cash.
John Paul Parisi was committed to
Virginia Baptist Hospital in April 2012,
and confined to a locked unit, according
to his lawsuit. Upon admission to the
unit, Parisi was given a Notice of Patient
Rights which he signed before a witness.
That Notice asserted that each person
admitted to the psychiatric unit shall be
treated with dignity as a human being,
be free from abuse and be cared for in a
safe environment.
But Ronald Lee Cash Jr., the attendant
who witnessed Parisis signature on the

Patients Rights Notice, repeatedly sexually assaulted Parisi, the suit alleged.
Cash later pleaded guilty to assaulting
Parisi and another patient, in separate
proceedings, and has been sentenced to
prison.
Parisi died two years after suit was
filed, and his brother, as Parisis personal representative, is pursuing the suit
against the hospital.
Too often plaintiffs get deterred by
the apparent strength of the hospital or
provider and dont go back to the basic,
old-fashioned tort principles, Sharman
said. Negligence per se is a classic way
of using a statute to establish a duty of
care, he said. If you show a violation of
that statutory standard, then the only
issue is whether the damages resulted
from a breach of that duty.
Lynchburg Circuit Judge F. Patrick
Yeatts rejected the hospitals argument
that the plaintiff had to sue under the
Virginia Medical Malpractice Act, and
also allowed the plaintiffs claim under
the Virginia Consumer Protection Act to
advance.
The hospital argued that any tort allegedly arising during a healthcare providers service to a patient fell within
the medical malpractice statute, which
affords providers certain privileges and

protections, including a cap on damages.


But the Lynchburg judge said in his
Dec. 11 opinion that the acts and omissions alleged in the plaintiffs complaint
are well removed from the provision of
health care or professional services. Yeatts distinguished Parisis case from other cases involving sexual battery during
the course of hands-on treatment, which
can be called malpractice.
Turning to the VCPA claim, Yeatts said
the issue of whether or not the health
care industry is totally exempt from the
VCPA is a question that has not yet been
decided by the Virginia Supreme Court,
although some state and federal courts in
Virginia have recognized such a claim.
The Lynchburg judge said it would be
premature to say the plaintiff in Parisi
had no cause of action under the VCPA.

Patients rights

Virginia courts have routinely sustained


demurrers to negligence per se claims in
the context of medical malpractice suits,
the Lynchburg court acknowledged.
In Parisi however, the plaintiff had
pleaded the elements of a cause of action.
He alleged Code 37.2-400 was enacted
to protect hospital patients.
The provisions within the statute could
be interpreted by their plain meaning as
protecting public safety. The hospital pa-

tient who alleged assault was a member


of the class of people for whose benefit the
statute was enacted, and he suffered the
type of injury the statute arguably was
designed to protect against.
Proximate cause of the injury is a
factual issue that cannot be appropriately decided at the demurrer stage of the
case, Yeatts wrote, overruling the demurrer.
The patients rights statute had not been
applied for this purpose before, but there
was no reason why it shouldnt be, Sharman said. Its classic negligence per se.
The consumer protection statute has
been cited against healthcare providers,
but primarily with nursing homes, Sharman said. On its face, theres no reason
why it shouldnt apply here, he said.
Lynchburg lawyer Kristine H. Smith,
who represented the hospital, said she
had not previously encountered a claim
for negligence per se based on the patients rights statute.
Although the Virginia Supreme Court
has not ruled on a case applying the
VCPA in a healthcare setting, case law
in other jurisdictions has excluded professional services from similar consumer
protection statutes, according to Smith.
Discovery is underway in the case.

Verdict is $2.75M in missed


diagnosis case in Abingdon
By Peter Vieth
An Abingdon federal jury awarded
$2.75 million to family members of a
patient who died of a pulmonary embolism despite an emergency room
visit nearly three weeks before.
The Dec. 7 verdict came after a fourday trial before U.S. District Judge James
P. Jones.
The familys recovery is limited to
$2.05 million under Virginias medical
malpractice cap.
The family members contended the
emergency physician should have recognized the dangerous blood clot and
resulting lung condition when Shawn
McKee was treated at the Russell County
Medical Center emergency department
in 2013.
The case produced rulings from Jones
on exposure for the staffing agency that
supplied emergency doctors, the patients
disputed residency in another state, and
the patients alleged contributory negligence in delaying later treatment.
McKee the patient went to the Russell County hospital on June 7, 2013, with
chest and back pain, shortness of breath,
nausea and fever, according to court documents. Dr. Dwight L. Bailey performed a
number of tests and concluded that McKee suffered from acute bronchitis. Bailey
released McKee that evening.
McKee moved with his family to Idaho
on June 12.
On the night of June 24, McKee again
had shortness of breath. In a discussion
with his family, McKees mother-in-law
strongly urged him to go to a hospital
right away. Instead, McKee waited until
the morning.
An ambulance was summoned as McKees condition worsened in the morning.
He died shortly after arrival at the hospital.
An autopsy showed pulmonary artery
thromboembolism and bilateral pulmonary infarcts.
McKees family claimed Bailey should
have suspected a pulmonary embolism
and pursued further testing.
Bailey was too heavy for a CT scan on
the hospitals equipment, but he should
have been provided with anti-coagulants
and sent to Abingdon for a scan, the family contended.
The plaintiffs case was summarized

by Benjamin D. Byrd of Roanoke, one of


the legal team that represented McKees
family. Also trying the case were Charles
H. Smith III and Andrew M. Bowman of
Gentry Locke.
The parties disputed whether McKee
mentioned to the doctor that he was planning to move from Virginia in just a few
days. Long travel is a risk factor for blood
clots, Byrd said.
A family member recalled the conversation, but the doctor said he had no
memory of a discussion about travel.

Agency liability

Another issue for the jury was whether


the doctors staffing agency could be held
liable.
Bailey was placed at the hospital
through a contract with Appalachian
Emergency Physicians which identified
him as an independent contractor. Jones
said there were factors that cut both
ways in determining whether the doctor
should be considered an employee or an
independent contractor.
Jones left that decision to the jury,
which imposed liability on AEP along
with the doctor. Jones opinion is Bagheri
v. Bailey.
To help resolve the employment question, the jury heard evidence about the
doctors medical malpractice insurance.
The insurance provided by the staffing
agency was a factor in the question of
whether the doctor was an employee of
the staffing agency, Byrd said.
The parties collaborated with the judge
to craft a jury instruction on the issue of
employment status, Byrd added.
Jones refused to allow a defense of contributory negligence based on McKees
delay in going to the hospital in Idaho.
The patients negligence was not contemporaneous with the alleged medical negligence, the judge ruled in Bagheri, Admr
v. Bailey.
Early in the case, Jones weighed various factors to determine that McKee was
domiciled in Idaho upon his arrival there
and, therefore, diversity jurisdiction existed to keep the case in federal court. His
jurisdiction decision is Bagheri v. Bailey.
The doctor and the staffing agency, Appalachian Emergency Physicians, were
represented by James N.L. Humphreys
and Jimmie C. Miller of Kingsport, Tennessee.
Humphreys declined comment beyond
saying that the defendants planned to file
post-trial motions.

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Page 4 | Virginia Lawyers Media, January 2016

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Why every healthcare provider


needs counsel at a deposition
By Tracie M. Dorfman
Healthcare providers are well-aware
that they should contact their insurance
carrier if they are served with a lawsuit.
But what about the seemingly innocent
request for a fact-witness deposition? As
a medical malpractice defense attorney,
I am always surprised when I encounter
healthcare providers at a deposition who
are unrepresented by counsel. Especially
when many malpractice insurance policies provide coverage for such situations.
Doctors may think, well, Im not a defendant in the lawsuit, so why would I need
an attorney? or I dont want to raise any
red flags, it would be better to just go in
by myself and get it over with. Here are
four reasons every healthcare provider
should consider having an attorney the
next time he or she gets asked to give a
deposition as a fact witness.
1. Just because you arent a defendant yet, doesnt mean you cant be
sued later. In Virginia, the statute of
limitations for a medical malpractice lawsuit is typically two years from the date
of injury or death (although there are
several exceptions to this rule). If your
deposition takes place before the statute
of limitations has expired, what you say
or dont say in the deposition could determine whether plaintiff decides to sue you.
Unfortunately, I have seen more than one
unrepresented healthcare provider talk
him or herself into a lawsuit during a
deposition.
Having a lawyer can protect you. Your
attorney will analyze your potential exposure and help you prepare for how to
handle targeted questions about your
care and treatment. Proper preparation
with an attorney may minimize your exposure down the road.
2. Your attorney can help narrow
the issues. Sometimes your deposition

is needed for a very


discrete reason. For
example, if the medical
records include handwritten notes, the lawyers in the case may
just need you to decipher the records. Your
attorney can speak
freely with the attorneys involved in the
DORFMAN
lawsuit to determine
why your deposition is
needed. In some cases, your attorney can
even provide the information through alternative means so that your deposition
does not have to go forward.
Your deposition may be requested because the attorneys have a misunderstanding about your role in the patients
care. I can recall several situations in
which a healthcare provider was deposed because the attorneys in the case
were misinformed about the healthcare
providers role. Before your deposition,
your attorney can communicate with the
attorneys in the case to confirm what information they believe you to possess. If
there are any misunderstandings, your
attorney can clear them up before your
deposition. This could save you the time
and effort of having to appear and explain the misunderstanding yourself.
3. You may be an expert in the field
of medicine, but you probably arent
an expert on the law. Do you know
whether your offices internal policies and
procedures should be produced in litigation? Do you know what Va. Code 8.01399 says about whether you can speak to
the defendants attorney about the plaintiff s care? Do you know whether the parties can require you to travel to another
county to give your deposition testimony?
Unfortunately, a deposition request can
raise various legal questions and you

want to be sure you are acting in your


own best interest and in accordance with
the law. The best way to protect yourself
is to have an attorney.
4. Your testimony under oath stays
with you forever. When you are deposed, you will be under oath. That testimony stays with you for your entire career. If you are sued later, your deposition
transcript may become relevant. Consider
this scenario: You testify as a fact witness
in a failure to diagnose vascular compromise case. During your deposition, you
offhandedly testify that when you have a
patient with weak pedal pulses and blue
toes, you always order a Doppler. Years
later, you find yourself a defendant in
a lawsuit and the allegation is that you
failed to diagnose vascular compromise.
Your patient had weak pedal pulses and
blue toes, but you did not order a Doppler.
If your prior testimony comes to light, it
could weaken your defense substantially.
Having an attorney properly prepare
you for your deposition may help you
avoid giving testimony that can later hurt
you. Among other things, your attorney
would likely advise you to refrain from
speaking in terms of always or never.
These absolute statements can box you in
for future cases.
In sum, having an attorney represent
you in connection with a fact-witness
deposition can help minimize your current
and future risk of exposure. Your attorney
can help to narrow the focus of your deposition, and may even be able to help you
avoid having to give a deposition altogether. The next time you receive a request to
give a fact witness deposition, you should
consider being represented by counsel.
Tracie M. Dorfman practices healthcare
law with the Fairfax office of Hancock,
Daniel, Johnson & Nagle.

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Table of Contents:
3 Patient protection law supports negligence

5 CMS finalizes changes and clarifications to

3 Verdict is $2.75M in missed diagnosis case

5 Hospitals, senior communities benefitting from

claim

4 Why every healthcare provider needs counsel


at deposition

Stark Law regs.

mediation

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, January 2016|Page 5

CMS finalizes changes and clarifications to Stark Law regulations


By Kelsey S. Farbotko and
Patrick C. Devine Jr.
Since the passage of the Physician
Self-Referral Act, or Stark Law, providers have learned to satisfy certain exceptions in order to pursue financial opportunities where Medicare-billed designated
health services are involved. It is noteworthy when the Centers for Medicare
and Medicaid Services, or CMS, alter the
established regulatory scheme, especially
when they provide increased flexibility
for providers. Most recently, CMS made
significant changes to the Stark Law regulations in its 2016 Physician Fee Schedule Final Rule, published Oct. 30, 2015.
The Final Rule includes these significant
changes:

New exceptions

In the Final Rule, CMS created two


new exceptions. The first would allow
hospitals, Federally Qualified Health
Centers and Rural Health Centers to pay
physicians or physician groups for hiring
certain non-physician practitioners who
provide primary care or mental health
services. The exception covers the recruitment and employment of primary care
and mental health allied practitioners,
including physician assistants, nurse
practitioners, clinical nurse specialists,
certified nurse midwives, clinical social
workers and clinical psychologists. The
Final Rule capped the amount of compensation that may be made available
and the length of time compensation may
be provided. Certain other requirements
similar to those in the physician recruitment exception also apply.
The second new exception permits
timeshare arrangements among physicians, physician groups, or hospitals

where one party uses space, equipment,


personnel, supplies, etc. provided by another party on a minimal or as-needed
schedule. However, if, for example, a party instead takes control of and exclusively
uses office space, the parties may create
a leasing arrangement requiring compliance with the space lease exception.
The exception requires that all space,
equipment, supplies, etc. be specified in
advance, used on the same schedule, and
be predominantly for the provision of
evaluation and management services.
Further, equipment cannot include advanced diagnostic imaging, radiation
therapy, or clinical laboratory equipment,
must be in the same building where services are rendered, and must be tangential to the services furnished. Several
traditional Stark Law exception elements
also apply, including the requirement
that the arrangement be commercially
reasonable and that compensation not be
on certain per-click bases or take into
account the volume and value of referrals
or other business.

Clarification and increased flexibility

Writing Requirement. The Final Rule


specifies that, where an exception requires that something be memorialized
in writing, there can be multiple written
documents, but any writings compiled to
meet the requirement must be signed.
Takes into Account. The Final Rule
states that CMS has always interpreted the volume and value of referrals
standard the same across all exceptions,
regardless of the specific words used. In
the Final Rule, CMS makes the language
uniform, using the phrase, takes into account, across all exceptions.
Signature Requirements. The Final

Rule provides a 90-day grace period for


arrangements not in compliance with
signature requirements, regardless of
whether the failure was inadvertent or
intentional. This replaces the former 30day grace period for intentional failures
and 90 days for inadvertent failures.
Lease and Personal Services Exceptions.
With the Final Rule, the requirement that
arrangements last for one year or more is
met if the relationship will clearly last for
at least one year. Any arrangement that
in fact lasts one year or more will satisfy
the requirement, regardless of whether
the term is explicit. A provider must be
able to show, through contemporaneous
writings, that the arrangement existed

for a one-year (or more) period or that the


arrangement terminated within one year
and the parties did not enter into another, similar arrangement within that same
one-year period.
Additionally, these exceptions have traditionally permitted holdover arrangements for a maximum of six months. The
Final Rule now permits indefinite holdover
arrangements where (1) the arrangement
complied with the applicable exception at
its expiration; (2) the holdover arrangement is on the same terms as the expired
agreement; and (3) the holdover arrangement continues to meet the exception.

n See STARK on PAGE 12

Hospitals, senior communities are


benefitting from use of mediation
By Cari Campbell
Dolan Media Newswires
Mediation is a tool that is used to help
manage and resolve conflict and to arrive
at (hopefully) a win-win situation.
When people hear the word mediation,
many first think of its use in a family law
context: divorced or divorcing parents
working with a third party to amicably
arrange a mutually beneficial schedule
for their children or agree on an equitable distribution of the couples assets and
liabilities. And, when many people hear
the word mediation in that context, most
laugh at the process hoop they must jump
through before being heard by a judge; the
mediation process often proves ineffective.
Mediation can also be used, although less
commonly, in another context: for business.
Realistically, it can be used in any dispute
in which two people have a vested interest
in resolving a conflict and moving forward
to work together amicably in a win-win situation. After all, other than the preservation of court resources, isnt that what they
had in mind in the family-law setting when
originally requiring this step?
In the business context, however, there is
often less raw emotional attachment within
the conflict (albeit, it is not completely void
of feeling); its generally not as personal as
the thought of losing rights to and time with
your child. Two industries that significantly
benefit from this mediation boom are hospitals and senior communities. And there are
a few significant reasons that these industries are starting to take notice:
1. Human resource costs are immense especially in filling leadership
positions within a hospital or senior
community. The cost to replace a general

employee can easily reach 150 percent of


the employees annual compensation figure. The cost is significantly higher (200
to 300 percent of annual compensation)
for managerial and sales positions. Therefore, the cost of turnover for a $50,000 position in an organization is approximately
$75,000. Some of the costs incurred for
turnover include the ad placement to refill the position; time spent rsum sifting
and interviewing; training; relocation; new
supplies (business cards, letterhead setup;
name tag); impact on departmental productivity; loss of knowledge, skills and contacts
of the person leaving; unemployment insurance; etc. The cost is high.
Nurturing good employees is a good investment for the organization. With an
investment of a couple thousand dollars, it
may be possible to retain the employee and,
thus, a positive ROI for the organization on
the process. If a $2,000 investment resolves
a dispute that retains a $50,000 employee
for an additional year, the organization justifies an 1,150 percent ROI for the organization by utilizing a mediation process.
If the organization did 12 mediations
throughout the year ($24,000) and only
managed to save two of those employees
(17 percent), the ROI of utilizing mediation
services would still obtain a 108 percent
ROI from utilizing mediation services.
It just makes sense.
2. Board members good ones
are few and far between. It takes time
for an organization to diversify its board
with solid board members who are vested
in the organization and its cause. When
a dispute arises with a board member,
mediation could be a viable option for the

n See MEDIATION on PAGE 12

Protect your interests without


compromising your primary mission
to deliver high-quality patient care.
The attorneys of Mellette PC have over 30 years of experience
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under the Virginia Department of Health Professions.
Call Peter Mellette, Harrison Gibbs, Nathan Mortier,
or Nicole Fisher for a consultation today.

(757) 259-9200 | www.mellettepc.com


428 McLaws Circle, Suite 200 | Williamsburg, VA 23185

Virginia Medical Law Report

Page 6 | Virginia Lawyers Media, January 2016

Complications arose during surgery on broken clavicle


section and a retractor before drilling.
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 com-

Defense Verdict
Plaintiff, age 52 and mailman with the
US Postal Service for 26 years, fell on
April 30, 2011, fracturing his collarbone
(or clavicle). The defendant orthopedic
surgeon treated the plaintiff, who was a
two-pack-a-day cigarette smoker, conservatively with a sling for three months.
Serial X-rays, however, revealed that the
fracture was not healing.
On July 26, 2013, the defendant performed an open reduction internal fixation surgery on the plaintiff s broken
clavicle. The surgery involved 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 resusci-

Type of action: Medical malpractice


MITCHELL

SILVERMAN

tated. 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. He is able, however, to hunt, fish
and catch frogs in ponds at night with
a flashlight.
Plaintiff s experts testified that the
defendant was negligent by not protecting the subclavian vein with dis-

Injuries alleged: Laceration of the subclavian vein


during clavicle surgery, leading to cardiac arrest,
asystole, momentary death, resuscitation, hospitalization and permanent disability
Court: Stafford County Circuit Court
Case no.: CL13000832
Tried before: Jury
Judge: Charles S. Sharp
Date resolved: Oct. 23, 2015

promised 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.
[15-T-155]

Special damages: Past medical bills $89,000; past


lost wages $208,000; future lost wages $175,000
Demand: $1,200,000
Offer: None
Verdict or settlement: Defense verdict
Attorneys for defendant: Byron Mitchell and
Coreen Silverman, Fredericksburg
Defendants experts: Michael McKee, M.D., orthopedic surgeon, Toronto; Robert Goitz, M.D., hand and
upper extremity orthopedic surgeon, Pittsburgh

Plaintiff: Conservative Coumadin dosage led to stroke, death


stroke, and ultimately, her death.

Defense Verdict
The decedent, who suffered from atrial
fibrillation was on Coumadin as a result,
was admitted to a skilled nursing and rehabilitation facility in Fairfax following a
hospitalization. Upon her arrival, the defendant physician performed an admitting
evaluation on her, during which he noticed a
large hematoma and bruising covering several areas of her body. Based on this observation, plus decedents age and unsteady gait,
defendant prescribed a conservative dose of
Coumadin, as he was concerned about bleeding. Recognizing that the decedent needed
Coumadin to reduce her risk of stroke, but
also recognizing her risk of bleeding, defendant monitored the decedent and increased
the dose conservatively two days later.

Type of action: Medical malpractice wrongful


death
Name of case: Stirk v. Wilson
Court: Fairfax County Circuit Court
Case no.: CL14-13075
GENTILE

LAMBEETS

Plaintiff alleged that the defendant


breached the standard of care by failing to
adequately increase her Coumadin dosage,
failing to order a follow up INR test in a
timely fashion and a failing to generally
monitor her. Plaintiff further alleged that
said failure resulted in decedent suffering a

Tried before: Judge


Judge: Daniel E. Ortiz
Date resolved: Oct. 1, 2015
Special damages: Medical expenses $31,137.15
(none blackboarded at trial)

[15-T-165]

Demand: $800,000
Offer: None
Verdict or settlement: Defense verdict
Attorneys for defendant: Colleen M. Gentile and
Ian Lambeets, Richmond
Defendants experts: Dennis ONeill, M.D.;
Thomas Butler, M.D.
Plaintiffs experts: David Chesler, M.D.;
Guy Rordorf, M.D.
Insurance carrier: MEDICUS

Experts: Decedents cancer likely pre-dated 2008 screening


Defense Verdict
The decedent presented to a local
hospital for a screening mammogram on
Oct. 28, 2008. The defendant radiologist
reviewed the current years mammogram
and noted an area of asymmetry in the
upper outer quadrant of the left breast.
He compared the current years study
to the study done in 2007. The same
area of asymmetry appeared on the
previous years mammogram, although
more tissue in that area was captured
in 2008. The area of asymmetry did not
have any unusual or suspicious findings,
such as lobulation, spiculation or
calcification. Nevertheless, the defendant
proceeded to review all of the other
prior mammograms and noted that this
area of asymmetry was present on prior
mammograms dating all the way back to
1999. The defendant dictated his report,
classifying the findings as benign and
classifying the study as BIRADS-2. His
dictated report noted his comparison with
the mammogram in 2007; however, he did
not note his review of any mammograms
prior to 2007.
On Nov. 3, 2009, the decedent returned
for another screening mammogram,
which was read by a different radiologist.
This radiologist noticed an area of
concern in the central portion of the
left breast, and recommended further
imaging, including true lateral and spot
compression films, which were done on
Nov. 12, 2009. Yet another radiologist read
these studies and noted no concerns with
the studies. He concluded the findings
were probably benign, but recommended
additional imaging of the left breast in
six months.
The decedent returned for another
diagnostic mammogram in June 2010.
This mammogram was read by the head
of the radiology group who noted the
presence of an asymmetry in the upper
outer quadrant of the left breast, and

HAGUE

ADAMS

reported that it appeared unchanged in


comparison with prior studies, including
the study of 2008. He reported the
findings were benign, and classified the
study as BIRADS-2.
In the meantime, the decedent had
begun experiencing pain and bruising in
her left breast. She did not report these
symptoms to the radiology technician
and these complaints were unknown to
the radiologist reading her mammogram
in 2010. However, she opted to pursue
further care in North Carolina. There, she
reported focal pain in the breast, and a
diagnostic mammogram with ultrasound
was done in July 2010. The reviewing
radiologist noted that the findings were
highly suspicious for malignancy.
Pathology examination showed that she
had an aggressive tumor with mixed
features showing both invasive ductal
and invasive lobular carcinoma and she
was classified as Stage IIIC.
Over the next few years, the decedent
underwent various treatments, including
radiation, hormone therapy and a double
mastectomy. Despite appropriate and
aggressive care, her cancer metastasized
and the decedent ultimately passed away
in April 2014. The executor of her estate
opted to continue with litigation as a
wrongful death claim.
Prior to trial, the parties filed several
motions in limine. Over the plaintiffs
objection, the court allowed the defendant
radiologist to introduce testimony from

the subsequent reading radiologists,


but would not allow the defense experts
to opine that their interpretation of the
decedents mammograms as benign
was evidence that the defendant doctor
had complied with the standard of care.
Further, the court allowed the defendant
radiologist to testify to his habit of
reviewing available studies, although
that was not documented in his radiology
report. In doing so, the court rejected the
plaintiffs argument that this testimony
was barred by Virginia Code 8.01399. The court, however, did grant the
plaintiffs motion to limit the treating
radiologists to testifying to only to what
was documented in their reports.
At trial, the plaintiff called Dr. Melinda
Dunn, a radiologist specializing in breast
imaging, including mammography, ultrasounds and MRI. She also called the
decedents treating oncologist from North
Carolina. In addition, the plaintiff presented testimony from several family
members who gave testimony on the impact of the loss to the decedents brothers,
her only statutory beneficiaries.
The defendant called six experts,
including a mammographer, a general
radiologist, a breast surgeon, a medical
oncologist, a radiation oncologist and
a pathologist. The radiology expert

testified that an area of asymmetry is


not, in and of itself, an uncommon or
worrisome finding. She noted that the
area of asymmetry was stable, in that it
had been present for many years prior to
2008. She further noted that subsequent
radiologists had read the decedents
mammograms as benign, confirming
the difficulty in detecting the decedents
cancer. The medical literature confirmed
this testimony, noting the difficulty in
detecting invasive lobular cancers on
mammogram. Using doubling times, the
defense experts opined that this cancer
was likely present for many years prior
to the diagnosis, and had likely spread
beyond the breast and lymph nodes prior
to the decedents screening mammogram
in 2008. Because the biology of the cancer
does not change, earlier treatment would
not have been effective and the outcome
would have been the same even if the
patient had been diagnosed in 2008.
The all-male jury deliberated for
approximately an hour before returning
with a verdict in favor of the defendant
radiologist. The plaintiffs motion for a
new trial was subsequently denied. The
plaintiff has not appealed.
[15-T-185]

Type of action: Medical malpractice

Demand: $600,000

Injuries alleged: Wrongful death, failure to


diagnose breast cancer

Offer: None

Court: Halifax County Circuit Court


Tried before: Jury
Judge: David B. Carson

Verdict or settlement: Defense verdict


Attorneys for defendant: Tracy Taylor Hague and
Rodney Adams, Richmond

Date resolved: Aug. 20, 2015

Attorneys for plaintiff: Robert Mann and James


McGarry, Martinsville

Special damages: Primarily sorrow, mental


anguish and solace for loss of the decedent

Insurance carrier: State Volunteer Mutual Insurance Company

Virginia Medical Law Report

Virginia Lawyers Media, January 2016|Page 7

Bacterial infection worsened after discharge from hospital


Defense Verdict

The defendant general surgeon operated on plaintiff, a 59-year-old male, on


May 27, 2010. Plaintiff presented with
cholelithiasis and acute cholecystitis. He
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. The purulent
bile in the operative field was cleaned
out by the general surgeon via copious
irrigation with warm saline. During the
laparoscopic procedure and prior to the
gallbladder rupture, the defendant obtained a fluid culture of gallbladder fluid.
Intraoperatively, a gram stain result was
called to the operating room, indicating
the presence of gram positive and gram
negative bacilli. The open portion of the
procedure was complicated and lengthy,
lasting approximately four hours, during
which plaintiff was intermittently hypotensive despite aggressive hydration.
Post-operatively, plaintiff spent the
first night in the ICU due to tachycardia,
where he was continued on Unasyn (ampicillin), an intravenous antibiotic that
had been started by the surgeon upon
plaintiffs initial presentation to the hospital. Plaintiffs white blood count, BUN
and creatinine began to rise after surgery.
On the evening of the first post-operative
day, plaintiff was moved from the ICU to
the floor. He was afebrile, but his BUN
was high at 22, his creatinine was high at
1.57 and his white blood count was high,
at 13.7. Plaintiff was ambulating, eating
and improving clinically. He was continued on intravenous Unasyn.
On May 29, 2010, the second post-operative day and the day of discharge, plaintiffs BUN was higher at 41, his creatinine
was higher at 1.71 and his white blood

PERROW

SARRELL

count was higher at 15,800. Clinically,


plaintiff had little discomfort, was eating
and voiding well, was ambulatory and requested to go home. At discharge, plaintiff
was switched from intravenous Unasyn to
an oral antibiotic equivalent, Augmentin,
at 500 mg three times per day.
Moments, after the mid-day discharge,
initial sensitivity results of the gallbladder fluid culture became available in
the hospital chart. These indicated the
presence of Citrobacter Freundii, a bacteria resistant to ampicillin, and thus
resistant to the Augmentin prescribed
for plaintiff at discharge. Plaintiff left
the hospital with a prescription for Augmentin, which was filled that afternoon.
In the early morning hours the next day,
plaintiff became extremely ill with complaints of progressive abdominal pain
and weakness. He was taken to the hospital by ambulance, where he was noted to
be severely hypotensive and tachycardic.
Plaintiffs condition severely worsened
and he required intubation. Plaintiff
remained intubated for weeks and was
treated for severe sepsis. He was ultimately transferred to two other hospitals,
where his recovery was difficult and slow.
During the following months, he developed a sacral decubitus ulcer.
At trial, plaintiffs general surgery expert testified that plaintiffs condition

most notably the rising BUN, creatinine


and white blood countsprior to the May
29, 2010, discharge was consistent with
an infection that should have been recognized. Plaintiffs general surgery expert
testified that it was negligent for the
defendant surgeon to discharge plaintiff
without first confirming from culture and
sensitivity results that oral Augmentin
covered all bacteria present in the gallbladder fluid that had contaminated the
operative field. Plaintiffs surgery expert
testified that plaintiff developed severe
sepsis due to a lack of response to the
culture and sensitivity results. Plaintiffs
treating plastic surgery expert testified
concerning the development of plaintiffs
sacral decubitus and the treatment he
endured relative to that injury.
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. They opined that it
was appropriate to give broad-spectrum
antibiotics and to discharge the patient
when the clinical picture warranted. They
opined that the patients rising BUN, creatinine and white blood counts in this case
were not unexpected given the intraoperative hypotension, as well as plaintiffs history of diabetes and kidney disease. These
lab results were not necessarily consistent with a blossoming septic infection.
On causation, they testified there was no
blood culture or other confirming evidence
that Citrobacter Freundii, which was
shown by sensitivity results as resistant
to Augmentin, was actually responsible
for the septic infection plaintiff developed.
After a four-day day trial, the jury deliberated for approximately four hours
before returning a verdict in favor of the
defendants.
[15-T-157]

Type of action: Medical malpractice

Offer: None

Injuries alleged: Severe septic shock

Verdict or settlement: Defense verdict

Court: Halifax County Circuit Court

Attorneys for defendant: Elizabeth Guilbert


Perrow and Daniel T. Sarrell, Roanoke

Case no.: CL12000339-00


Tried before: Jury
Judge: David A. Melesco
Date resolved: Sept. 17, 2015

Defendants experts: Kent W. Kercher, M.D.,


general surgeon, Charlotte, North Carolina; Donald M.
Poretz, M.D., infectious disease physician, Annandale;
Daniel G. Turgeon, M.D., general surgeon, Reston

Special damages: $476,794 in medical expenses;


no past or future lost wages sought; no future
medical expenses sought

Plaintiffs experts: Joseph V. Boykin, Jr., M.D.,


plastic surgeon, plaintiffs treating wound care
physician, Richmond; Garry D. Ruben, M.D., general
surgeon, Silver Spring, Maryland

Demand: $1,000,000

Insurance carrier: The Doctors Company

ER patient did not reveal combination


of drugs that led to overdose
Defense Verdict
The plaintiffs alleged that their son, who
presented to the emergency department
after taking an overdose of Dextromethorphan, received improper treatment. 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

McCRAY

GRIGGS

negligence. The court allowed evidence


and jury instructions on contributory
negligence.
[15-T-173]

Named as a First-Tier
Best Law Firm

Type of action: Medical malpractice wrongful


death

Demand: $1,500,000
Verdict or settlement: Defense verdict

by U. S. News and World Report

Name of case: Harris v. Lexington VA Emergency


Physicians LLP

Attorneys for defendant: Joel McCray and Ruth


Griggs, Richmond

MORAN REEVES CONN is pleased to announce

Court: Roanoke Circuit Court

Defendants experts: Dr. Kenneth Larsen, emergency medicine; Dr Melvin McInnis, psychiatry

Case no.: CL12-205

Judge: Charles N. Dorsey

Plaintiffs experts: Dr. Edward Boyer, toxicology


and emergency medicine; Dr. Amy Tharp, medical
examiner

Date resolved: March 13, 2015

Insurance carrier: National Guardian

Tried before: Jury

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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.

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Virginia Medical Law Report

Page 8 | Virginia Lawyers Media, January 2016

Prostate cancer patient died due to pulmonary emboli


$1,000,000 Settlement
The decedent, age 62, was diagnosed
with prostate cancer and underwent
an open radical retropubic prostatectomy. Although pre-operative imaging
indicated no extra-prostatic extension
of the cancer, the defendant conducted
an extensive 30-lymph node dissection
with an estimated blood loss of 2500 ml
that necessitated several transfusions.
All lymph nodes, including the one tested intraoperatively, were negative for
cancer. During the course of the procedure, the defendant caused an iatrogenic injury to the rectum.
Following surgery, the decedent was
febrile with an elevated white blood
count. On post-operative day four, the
decedent presented to the defendant
physician for a follow up appointment.
His white blood count was increasingly elevated. The decedents laboratory
values were abnormal with low sodium, low potassium, low carbon dioxide,
elevated glucose and anemia. He complained of severe fatigue and anxiety.
The decedent had an unusual amount
of drainage from a surgically placed
Jackson Pratt drain. The physician performed a rectal examination and noted
concern for a rectal injury, but did nothing to rule it out.
Later that day, the decedent developed bloody stools, which were reported
directly to the defendant by telephone.

L. STONEBURNER

B. STONEBURNER

Several calls reporting signs and symptoms consistent with a rectal injury
were placed over the next two weekend
days. A week following the surgery, the
decedent was readmitted for evaluation. He exhibited shortness of breath
with severe hiccups, bilateral leg swelling and a sub-therapeutic INR. An abdominal CT confirmed the large rectal
breach between the anterior rectum
and the proximal ureter. It also showed
multiple foci of air and likely fecal material in the retroperitoneum extending
into the extraperitoneal space, with air
tracking down the abdominal wall along
the inferior vena cava, hepatic vessels
and biliary tree. Bacteria cultured from
the drain indicated that the decedent
was infected with pseudomonas aeruginosa and clostridium difficile. The decedent underwent an extensive sigmoid
loop ostomy and flex sigmoid colostomy
to repair the rectal injury.
Following the repair surgery, the de-

fendant continued to manage the decedents care while hospitalized. Five


days after the second surgery, the decedent had a follow-up CT scan of the abdomen and pelvis, which demonstrated
an unchanged retroperitoneal abscess
at the right aspect of the pelvis and an
increased fluid collection at the left aspect of the pelvis. The scan also revealed
prominent bilateral basal atelectasis.
The decedents oxygen saturation rates
were declining without explanation.
Despite his status, the decedent was
discharged the following day. Two-anda-half hours later, he collapsed at home
and was emergently transported back
to the hospital. A d-dimer blood test
indicated a measurement of 9747 ng/
ml. Interventional radiology performed
a pulmonary arteriogram that showed
thrombus in right pulmonary artery.
Catheter directed thrombolysis via tPA
was attempted. Despite these efforts,
circulatory collapse from saddleback
pulmonary emboli resulted in death.
Plaintiff s experts were designated

to opine that the defendants breaches of the standard of care included:


performing an unindicated bilateral
lymphadenectomy, failing to inspect the
rectum and repair the breach intraoperatively, failing to timely respond to the
signs of a rectal defect and associated
infections, ignoring the decedents condition and imaging results following his
repair surgery, failing to obtain appropriate consults, failing to order appropriate prophylaxis for venous thromboembolism, failing to monitor and treat
undrained abscesses which heightened
the risk of developing pelvic clots and
discharging the decedent in an unsafe
condition.
Decedent was retired. The beneficiaries of the estate included his widow
and his two adult, non-dependent children. Plaintiff designated an economist
to opine regarding the decedents loss of
household services. The case was successfully mediated.
[15-T-162]

Type of action: Medical malpractice wrongful


death

Special damages: $644,643

Resolved by: Mediation

Amount: $1,000,000

Mediator: Diane M. Strickland

Attorneys: Lewis T. Stoneburner and Bellamy


Stoneburner, Richmond

Date resolved: Sept. 16, 2015

Verdict or settlement: Settlement

Plaintiffs: Teen developed spinal epidural hematoma after surgery


$1,040,000 Settlement
Plaintiff alleged that defendants failed
to timely diagnose a blood clot spinal
epidural hematoma (SEH) that formed
in the lower spine of their 14-year-old
daughter following scoliosis surgery on
Aug. 19, 2011. They further alleged
that they were never informed of the
risks of using a spinal epidural for the
management of postoperative pain, or the
less risky alternative of IV pain management. Finally, plaintiffs alleged that large
amounts of anesthetic agents and/or fluid
were given through the epidural catheter,
which added to the compression of the
spinal nerves caused by the hematoma.
As a result of the defendants alleged negligence, the minor plaintiff suffered permanent bowel and bladder dysfunction as
well as saddle area numbness.
For 17 hours following the surgery, the
minor plaintiff had normal movement
in all her extremities. Thereafter, beginning at 9:00 a.m., on Aug. 20 2011, the

ARTZ

WAGHORN

plaintiff developed severe neurological


deficits in her lower extremities, at which
time the epidural was pulled. Defendants
believed the plaintiff was experiencing
a prolonged effect of epidural analgesia,
which would subside, since her deficits
improved after the epidural was pulled.
At 6:00 p.m., when the plaintiff failed to
regain full motor function, a spinal CT
was ordered, which came back non-diagnostic at 7:00 p.m. An MRI of the spine
also came back non-diagnostic at 9:00
p.m. No further imaging studies were

ordered. Surgery to remove the SEH and


decompress the spinal nerves was never
performed.
According to plaintiffs experts, when
the plaintiff did not regain full neurological function within two hours after the
epidural was pulled, the defendants could
no longer reasonably believe the plaintiff
was experiencing a prolonged epidural effect. At 11:00 a.m., defendants had a duty
to order a CT of the spine to rule out a hematoma. Once the CT came back non-diagnostic, defendants should have ordered
a myelogram. Had this been done, the
hematoma would have been diagnosed in
time to remove it surgically without per-

manent injury. This likely would have led


to a full recovery.
According to defense experts, it was
reasonable to wait up to 12 hours after
the epidural was pulled for the child to
regain full neurological function. The imaging studies were not non-diagnostic,
since a normal spine was visible between
the non-diagnostic areas, sufficient to
rule out a SEH. Decompression surgery
was not required, since there never was a
SEH. They claimed the plaintiff suffered
a unique reaction to the epidural medication, which could not have been foreseen
or prevented.
[15-T-166]

Type of action: Medical malpractice

Verdict or settlement: Settlement

Injuries alleged: Failure to diagnose/treat spinal

Amount: $1,040,000

epidural hematoma following scoliosis surgery

Attorneys for plaintiff: William E. Artz and


Andrew J. Waghorn, Arlington; Robert Moreland,
Norfolk

Mediator: John Morrison

Tumor reappeared twice before being diagnosed as malignant


$500,000 Verdict
In July 2008, the 28-year-old plaintiff
developed a lump on the left side of her
neck, just underneath the ear. The lump
was removed by an ENT physician in
Manassas who sent the tissue sample
to Lab Corp. A pathologist at Lab Corp
could not rule out a cancerous lesion,
so she sent the sample to the Armed
Forces Institute of Pathology for expert
review. A pathologist at AFIP diagnosed
a benign tumor.
In April 2009, the lump returned in
the exact location where it initially
developed. Plaintiff returned to her
ENT physician, who removed the tumor
a second time and sent the tissue
sample to Prince William Hospital.
A pathologist at PWH diagnosed a
benign tumor. In August 2009, the lump
returned in the exact location where it
bad been removed twice previously. An
MRI revealed that the tumor had grown
from 2 centimeters to 6 centimeters,
with extensive involvement of the left
trapezius muscle and possibly two

ARTZ

WAGHORN

lymph nodes, which were enlarged on


imaging.
In October 2009, surgery was performed
at Georgetown University Medical Center
to remove the neck tumor and 14 nearby
lymph nodes. Since the tumor had invaded
the trapezius muscle, reconstructive flap
surgery was also required. A pathologist
at Georgetown diagnosed a malignant
tumor. All lymph nodes were negative
for cancer. Nevertheless, since the neck
tumor recurred twice, plaintiff underwent
two months of radiation therapy. As late
as August 2014, periodic imaging studies
of the head and neck failed to detect any

hint of cancer recurrence,


This was a difficult case. Plaintiffs
experts were prepared to testify that
the signs of malignancy were obvious
from the start. However, they disagreed
as to the type of malignancy sarcoma
v. desmoplastic melanoma. Medical
literature and an online prognostic
database indicated that the five-year
survival rates for both DM and sarcoma
were good. Plaintiffs treating radiation
oncologist testified at deposition that she
was cured. The claim of cure was repeated
by defense oncology experts. Settlement
negotiations were further hampered
by arguments that other pathologists,

Type of action: Medical malpractice Federal Tort


Claims Act
Injuries alleged: Failure to timely diagnose head
and neck cancer

besides the AFIP pathologist, diagnosed a


benign tumor.
The plaintiff posited the theory that
as a result of the 15-month delay in
diagnosis and treatment, the tumor
became larger and more aggressive,
requiring more extensive treatment,
including more invasive surgery, a lymph
node dissection, reconstruction using a
skin flap and radiation treatments.
During the pendency of this litigation,
plaintiff gave birth to her second child,
even though her pregnancy placed her at
higher risk for a cancer recurrence.
[15-T-163]

Date resolved: June 29, 2015


Verdict or settlement: Verdict
Amount: $500,000

Court: U.S. District Court for the District of Columbia

Attorneys for plaintiff: William E. Artz and

Judge: Ellen Huvelle

Andrew J. Waghorn, Arlington

Virginia Medical Law Report

Virginia Lawyers Media, January 2016|Page 9

Plaintiff said foot surgery was unnecessary, led to complications


Defense Verdict
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 plaintiffs left foot was
caused by both positional and structural
deformities. The positional problem was
that plaintiff had equinus deformity
or a short Achilles tendon, which caused
her left foot to be dorsiflexed, i.e. her toes
pointed downwards. The structural problem was that the plaintiff had anterior
cavus or a high arch. The pressure on the
ball of the plaintiffs foot was worst under
her first, fourth and fifth toes, as evidenced
by callouses on the bottom of her foot.
Nine months of conservative therapy
was unsuccessful in relieving the significant pain and pressure in the ball of the
plaintiffs left foot. Thus, the defendant
performed a number of procedures in a
single surgical setting, all of which were
designed to alleviate the metatarsalgia.
Defendant lengthened the plaintiffs
Achilles tendon. Defendant performed osteotomies on plaintiffs first, fourth and
fifth metatarsals. Intraoperatively, defendant determined that these procedures
had been unsuccessful in fully alleviating
the pressure on the ball of the plaintiffs
foot. Thus, the defendant also removed
the sesamoids, two bones embedded in the
tendons underneath the plaintiffs big toe.
Plaintiff developed a cock-up hallux or
raised big toe. This was a known complication of removing the sesamoids. Defendant performed another surgery about four
months after the original surgery to address
the raised big toe. Plaintiff had two instances of infection during her treatment with
the defendant. On one occasion, she had
rubbed a blister on the back of her heel. After applying a wet dressing and putting the

THOMAS

LOVE

plaintiff on a short course of oral antibiotics, the blister resolved. On another occasion, the defendant recognized an area of fibrosis and bogginess on the plaintiffs heel.
The defendant debrided the area and found
a piece of suture from the original surgery
that had broken off. The body had been attempting to spit this piece of suture out as
it would a splinter.
The plaintiff also had an emergency room
admission during her treatment with the
defendant. Plaintiff presented to the emergency room with a fever, accelerated heart
rate and headache. The emergency room
doctors determined that the plaintiff was
likely having a reaction to one of the oral
antibiotics the defendant had placed her on
for the superficial infections. After the antibiotic was changed, the plaintiffs symptoms
resolved. Though the first surgery had been
successful in alleviating the plaintiffs primary complaint of pain in the ball of her foot,
the plaintiffs left foot issues were complex.
The defendant continued to see and treat
the plaintiff for assorted issues with her left
foot. However, about eight months after the
original surgery the plaintiff decided to discontinue treatment with the defendant.
About five months after that, plaintiff went to see another orthopedist for a
second opinion. That orthopedist, who observed no signs or symptoms of infection
in the plaintiffs left foot, referred plain-

tiff to Dr. Joseph Soo Park, an orthopedic


foot and ankle surgeon at the University
of Virginia. About six months later, now
11 months after the plaintiff had last seen
the defendant, the plaintiff first sent to see
Dr. Park. Dr. Park eventually determined
that the plaintiff had osteomyelitis, or a
bone infection, in her left heel. Dr. Park removed a portion of the plaintiffs Achilles
tendon, debrided the bone and placed antibiotics beads in the plaintiffs heel.
Plaintiffs experts alleged that most of
the surgeries performed by the defendant,
especially the sesamoidectomy, were unnecessary. Plaintiffs experts alleged that
the sesamoidectomy was not indicated
and caused the plaintiff further harm. The
plaintiffs experts further alleged that the
osteomyelitis diagnosed and treated by
Dr. Park was a result of the defendants
inappropriate diagnoses and treatment of
plaintiffs infection at the time of his care.
The plaintiff requested reimbursement
of approximately $250,000 in past medical
bills. Plaintiff presented a life care plan totaling $398,624. The parties had attempt-

ed mediation, which ended with plaintiff


at $1,825,000 and defendants at $200,000.
Plaintiff later stated that her bottom line
number was $1,100,000.
The defendants experts testified that all
of the surgeries performed by the defendant
were indicated and adequately performed.
The defendants experts testified that the
defendants response to and treatment of
the limited signs and symptoms of superficial infection that appeared was appropriate. Defendants experts disputed whether
plaintiff actually had an osteomyelitis at the
time of Dr. Parks treatment. Defendants experts pointed to the fact that the pathology
report revealed no evidence of acute inflammation. The defendants experts testified
that for there to be an infection there must
be inflammation. The defendants experts
testified that what plaintiff likely had was
a bad reaction to the suture material, a not
uncommon condition.
After four days of testimony, and four
hours of deliberation, the jury returned a
unanimous verdict in favor of the defendant.
[15-T-160]

Type of action: Medical malpractice

Offer: $200,000

Injuries alleged: Unnecessary surgeries and inappropriate response to post-operative infection, leading to
increased pain and loss of function in plaintiffs left foot

Verdict: Defense verdict

Court: Rockingham County Circuit Court


Case No: CL12-02247
Tried before: Jury

Attorneys for defendant: C.J. Steuart Thomas III


and Tate C. Love, Staunton
Defendants experts: Laurence G. Rubin, DPM;
Charles M. Zelen, DPM; Gary Leonard Simon, M.D.

Judge: Thomas J. Wilson IV

Plaintiffs experts: John R. Senatore, DPM; Jamie

Date resolved: July 30, 2015

Alexandra Dale, M.D.; John C. Schaefer, M.D.; Joseph

Demand: $1,825,000 (letter stated bottom line of


$1,100,000)

Insurance carrier: The Doctors Company

Soo Park, M.D.

Patient had full mouth restoration re-done due to jaw pain


Defense Verdict

Plaintiff, an Atlanta resident, has a


genetic condition called Ameliogenesis
Imperfecta, which is a malformation of
her tooth enamel. She also had bruxism (teeth grinding). Because of her AI
and teeth grinding, she needed to have
a full mouth restoration performed for
dental, medical and aesthetic reasons.
She could not afford the procedure and
planned to travel to Bangkok to have
it completed. Her sister, a Richmond
resident, was a patient of the defendant dentist and told him of her sisters plans. He offered to do the procedure for whatever she could afford so
she would not have to travel out of the
country for the procedure.
After the procedure was completed,
the plaintiff began to complain of dental sensitivity and jaw pain. She refused to return to Richmond to allow
the dentist to examine her or make additional occlusal adjustments, instead
presenting to an Atlanta dentist who
recommended that he re-do the procedure. She had him perform another full
mouth restoration only months after
the first one was completed, for a cost
of $70,000. After re-doing the plaintiff s full mouth restoration, plaintiff s
Atlanta dentist treated her for three
years before she stopped complaining
of sensitivity and jaw pain with her
second set of crowns. Plaintiff alleged
the expense and long timeframe for the
subsequent procedure resulted from
the defendants negligence. She alleged
defendant had breached the standard
of care, causing her malocclusion, pain
and additional dental work.
Defendant presented expert testimony that he had complied with the
standard of care in completing the full
mouth restoration. Sensitivity after
a full mouth restoration is common,
and it takes time to adjust to the new
crowns. Moreover, plaintiff s AI made
her hypersensitive and caused her to
take longer to adjust. Additionally, her
jaw pain was muscular and caused by
her pre-existing bruxism and anxiety,
not malocclusion. After four days, the

Type of action: Dental malpractice

Offer: None

Injuries alleged: Plaintiff alleged she had to have


a full mouth restoration re-done because malocclusion caused jaw pain and sensitivity

Verdict or settlement: Defense verdict

Court: Richmond Circuit Court

SIMOPOULOS

HOOE

jury deliberated for an hour and a half


before returning a defense verdict.
[15-T-170]

Attorneys for defendant: Jodi B. Simopoulos and


Garrett H. Hooe, Glen Allen

Tried before: Jury

Defendants experts: J. Timothy Wright, D.D.S.

Date resolved: Oct. 29, 2015

and Christopher Hooper, D.D.S.

Special damages: $89,004

Plaintiffs experts: Gregg Helvey, D.D.S.

Demand: $800,000

Insurance carrier: Medical Protective

Virginia Medical Law Report

Page 10 | Virginia Lawyers Media, January 2016

Anesthesia and intubation sequence led to permanent brain injury


$1,950,000 Settlement
The 53-year-old plaintiff had suffered an
odontoid fracture in 2001, which required a
spinal fusion from C1 to C5. He had recovered well, and was employed as a supervisor
for 30 years. When he developed some difficulty walking with secondary bilateral leg
weakness, he was admitted into the hospital
by his neurosurgeon for a re-do occiput to C5
instrumentation and fusion. The anesthesia
pre-procedure consult noted specific concerns for anesthesia including severely limited neck motion due to cervical traction in
neutral position and a limited mouth opening. A subsequent pre-procedure consult
note indicated a more normal assessment.
Given the plaintiffs presentation to the hospital, his symptoms, the requirement of cervical traction to ameliorate those symptoms
and his past surgical history, plaintiffs experts were of the opinion that the first evaluation was more accurate and the plaintiff
needed a fiberoptic intubation. Prior to the
commencement of the surgery, the anesthesia providers provided some sedation
while the monitor and oxygen were applied.
A transtracheal block was performed. Two
minutes later, the plaintiff was induced with
Lidocaine and Propofol. The combination of
these drugs can cause a patient to become
apneic, which normally can be cared for.
The records noted that the plaintiffs mask
ventilation was difficult and that he had a
period of apnea following ventilation within minutes. Two oral attempts were then
made with a fiberoptic bronchoscope, but
were unsuccessful. It was noted that the

Augusta |

CANTOR

BUCKNER

plaintiff remained spontaneously breathing,


but required pressure support via mask between attempts.
Despite these noted difficulties, it was
next decided to administer Rocuronium to
assist with the ventilation/intubation. Rocuronium is an intermediate-acting muscle
relaxant, which is not reversible for at least
20 to 30 minutes. Essentially, the plaintiff
was paralyzed at this point and could no
longer breathe for himself. The anesthesia
providers no longer had the option of being
immediately able to awaken their patient. A
third attempt at fiberoptic intubation was
unsuccessful. The plaintiff became difficult and then impossible to mask-ventilate with two providers and an oral
airway. The next maneuver attempted
was a direct laryngoscopy, but failed.
An attempt at supraglottic airway was
made, but failed as well. The plaintiff was
now bradycardic while still maintaining
a blood pressure. An angiocatheter was
placed through the neck into his trachea
and oxygen was insufflated through the
catheter. This helped for a short period of

time, but became clotted and no further


oxygenation was possible. At this time,
the anesthesia providers decided to place
a tracheostomy. An incision was made in
the plaintiffs neck and dissected down
to the trachea. Unfortunately, multiple
attempts made to place the tracheostomy were unsuccessful. An ENT physician then entered the operating room to
further assist. The plaintiff became more
bradycardic and eventually, no palpable
pulses were felt. CPR commenced and
he received approximately four minutes
of chest compressions. The plaintiff was
finally intubated via direct laryngoscopy
while the ENT was working on the tracheotomy. Immediately after the patient
was successfully intubated, his oxygen
saturations returned to more normal levels. Shortly thereafter, the providers were
able to re-establish a cardiac rhythm
and blood pressure. The neurosurgeon
deemed that his patient was grossly unstable from a pulmonary and cardiovascular standpoint the planned neurosurgical procedure was aborted.
Despite various medical interventions

that followed, the plaintiff remained neurologically devastated and did not have
any spontaneous movement or response to
painful stimuli. An EEG was performed and
noted a pattern typically seen following anoxic injury after cardiac arrest, suggestive of
a poor prognosis. Plaintiffs brain imaging
was indicative of a global hypoxic-ischemic
injury. He was taken for a tracheostomy
and PEG tube placement. Plaintiffs experts
were of the opinion that the induction of
anesthesia and intubation sequence did not
meet the standard of care directly resulting
in the plaintiffs permanent injuries.
After more than a month in the hospital,
the plaintiff was discharged to a long-term
care facility where he remains today. Although he has been weaned from the ventilator, the plaintiff remains unable to care
for himself independently, unable to walk
and unable to communicate verbally. He is
currently being cared for by his parents and
five siblings, who all live locally. At the time
of settlement, less than two years after the
date of injury, the plaintiffs incurred medical bills totaled almost $1 million.
[15-T-197]

Type of action: Medical malpractice

Verdict or Settlement: Settlement (pre-suit)

Injuries alleged: Permanent anoxic brain injury

Amount: $1,950,000

requiring a lifetime of care

Attorneys for plaintiff: Stephanie E. Grana, Irvin

Date resolved: November 2015

V. Cantor and Elliott Buckner, Richmond; Jeffrey A.

Special damages: More than $1,000,000

Breit, Virginia Beach

n continued from page 1

the popliteal artery on the first knee. A vascular surgeon tried to repair the injury, but
the attempt failed, Livingston reported.
The leg was amputated above the knee
four days after the operation.
Testimony suggested Boatwright had
cut the artery while using a saw to cut
through bone.
Despite having a prosthetic leg, Reeder
was largely immobilized after the surgery. With an above-the-knee amputation
on her right leg, she could not properly rehabilitate the replacement left knee and
it froze on her, Livingston said.
After becoming disabled, Reeder occasionally had to call for help from a neighbor when she fell or had difficulty with
personal care, Livingston said.
Her medical bills were $360,731.97
and the cost of her lifetime care ranged
between $534,149.60 and $688,549.40,
according to Livingston.

Conservative jurisdiction

Augusta County is not known for generous juries.


Pretrial research of the juror list
showed a large number of Facebook supporters of Donald Trump. Almost everyone who expressed a political opinion was
on the conservative side.
A wrongful death plaintiff scored a
$1.75 million jury verdict in 2006, but the
defendant in that case was convicted of
trying to kill the plaintiff in a frantic car
chase.
A brain injury from a wreck involving a
drunken driver led to a $1.5 million verdict in 2007.
A $250,000 auto liability judgment was
hailed as a possible record personal injury verdict in 1996, according to a report
in Virginia Lawyers Weekly.
Livingston said he was told that no Augusta County jury had been known to return a medical malpractice verdict close
to Reeders award.
When potential jurors were questioned
in front of the judge, many expressed reservations about hearing Reeders medical
malpractice case.
I have a strong opinion against medical lawsuits, said one member of the venire. I believe before you do anything as
far as getting an operation, if youve done
your homework and made a decision on
the doctor, you can live with the consequences, the juror said.
I dont like lawsuits, another
conceded.

I dont really believe in lawsuits, religious reasons, said another.

Change in theme

The court had summoned 60 potential


jurors. After the judge had struck 17 for
cause, Reeders lawyers learned about another cause for concern.
The local daily had published an article on the trial that hit the streets on the
morning of voir dire. Amputee sues local
doctor for $3 million, the headline read.
The article included statistics from a
report called the Surgeon Scorecard
that purportedly showed the defendant
doctor had a low complication rate for total knee replacement surgery.
At least one or two of the venire who
had read the article ended up sitting on
the jury, Livingston said.
The plaintiffs team adjusted its tactics, Livingston said. The theme of Reeders case became, Even a great surgeon
can have a careless moment.
Livingston concluded cross-examination
of the principal defense expert with this
question: Would you agree that even great
surgeons can have a careless moment?
Well, certainly, was the experts reply.
The newspaper story forced another
tactical adjustment. Since the $3 million
demand was splashed across the front
page, Livingston decided to ask the jury
for that same amount at closing.
It could hurt us if we asked for less,
he said in a later interview.
Worrisome jury questions
After four days of evidence, the jury
had been out for four hours when they
sent what Livingston called alarming
questions to the judge.
Among other requests, the jury sought
the dictionary definition of negligence.
Nervous about the jury questions,
Reeders lawyers cut their demand to
$750,000, but the insurance carrier did
not respond.
One lesson from the case is, Do not
get too worried if you get an off-the-wall
question, Livingston said.
Livingston publicly thanked his law
partners for helping him resist the pretrial offer of $500,000.
A half million dollars on the table in
a conservative jurisdiction with no record
of a medical malpractice win. One juror
could hold up a verdict. Its easy to accept
those offers that would leave you fully
paid for your time, Livingston said. But
I just could not do that for Mae Reeder.

AUGUSTA COURTHOUSE

She would not have walked away with a


full recovery at the end of the day.
Virginias medical malpractice law put
a $2.05 million cap on Reeders potential
recovery in the case.
Besides Livingston, Reeders lawyers
included Yvonne T. Griffin and Lisa Brook
of Charlottesville.
The defendants were represented by
Powell M. Leitch III of Roanoke. He declined to comment.

Jury research on the quick

Testing the waters for trying a case in


Augusta County required some fast footwork for Reeders lawyers, Griffin said.
Just five weeks before trial, the group
decided to assemble a test group of Augusta residents for a research session.
The budget was limited, so the effort became a do-it-yourself project, Griffin said.
The key problem was finding willing
participants. The judge refused to allow
access to the courts previous juror list.
Hoping to put together a group of 21
residents, the legal team mailed 200 invitations for paid participants to random
Augusta phone customers. Only six responded.
Time was short. The legal team went to
freak out mode, Griffin said.
Rather than hire a professional research firm, and with time growing short,
Griffin took to the road, driving to grocery
stores, department stores and gas stations anywhere she could pitch the idea
of earning $150 to be on a make-believe

jury for three hours.


That worked out great the face-toface did, Griffin said.
She said she deliberately tried to make
her pitch to a diverse group. Eventually,
two dozen people showed up, willing to
take part. Three were turned away.
The crew used four conference rooms
at a Holiday Inn and started with a onehour presentation of the case. Then, the
lawyers watched and listened as three
separate groups of jurors deliberated.
You have to speak their language. Thats
one thing that we learned, Griffin said.
But she said lawyers found the ersatz
jurors were willing to listen to both sides.
There were socio-economic differences
that emerged, and the lawyers learned
that some things are more important for
a rural jury than for citizens from a metropolitan area, Griffin added.
Medical terms and concepts also needed to be clearly explained, she said.
The lessons from the panels helped
hone the trial presentation.
We found it, I think, to be invaluable,
Griffin said.
The short-term jurors seemed to get
more out of the experience than just a
check and a free breakfast. Many came
up afterward and offered to do it again.
All of them seemed to enjoy it, Griffin
said.
The budget for the home-grown jury research effort was only about $4,000, she
said.

Virginia Medical Law Report

Virginia Lawyers Media, January 2016|Page 11

Blood thinner dosage triggered massive brain hemorrhage


$750,000 Settlement
Plaintiffs decedent was admitted to
the Richmond Veterans Affairs Hospital
on Sept. 14, 2012, for a skin laceration
after scraping his leg. He had a history
of strokes and myocardial infarctions,
was on Coumadin and was a dialysis patient. While in the hospital, he was started on an additional blood thinner dose of
heparin. Two days later, he experienced
an acute change in mental status, and a
head CT revealed an intracranial hemorrhage, from which he eventually died. He

Nurse |

had received a supratherapeutic level of


blood thinner, which
caused a blood vessel
in his brain to burst
and then the massive
hemorrhage. The INR
was not checked upon
his admission to the
hospital.
Decedent was surCOLLIER, JR.
vived by his wife of 30
years and three adult
children from a previous marriage, two
of whom are incarcerated. The case was

n continued from page 1

him to develop ventilator/hospital-acquired pneumonia. The nursing staffs


failure to properly assess and treat a skin
breakdown behind Christians ear contributed to the childs demise, the suit said.
The parents also argued that Dr. Toor
negligently failed to transfer Christian
to a different facility after the plaintiffs
made such a request. Ultimately, Christian died after his transfer to the VCU
Health System Hospital in Richmond.
The court dismissed the plaintiffs
claims against CHKD and its staff asserted for the first time in the plaintiffs
bill of particulars as untimely. The remaining defendants objected to the expert certification by the nurse.

Nurse expert

Nurse Budge theoretically could qualify as an expert regarding the applicable


standard of care for the Suskos if she met
the knowledge and active clinical experience requirements of Code 8.01-50.1,
the Norfolk judge said.
In order to qualify as an expert, a
healthcare provider who is not licensed

in the particular specialty of the defendant provider must demonstrate expert


knowledge of the standards of the defendants specialty and what conduct meets
those standards. The proffered expert
also must have had active clinical practice in either the defendants specialty
or a related field of medicine within one
year of the date of the alleged negligent
act or omission.
The Supreme Court of Virginia has
recognized only one instance of a nurse
qualifying as an expert on causation of
injuries, in its 2002 decision in Velazquez
v. Commonwealth, involving a specially
trained sexual assault nurse examiner.
The Suskos focused on the treatment
of the childs bedsore as an aspect of care
within the nurses expertise. They claimed
the defendants alleged negligence related exclusively to bedsores that Christian
developed and did not relate to neurology, according to Lannettis opinion. The
plaintiffs also argued the nurse could testify on causation, because their case did
not fall within the general rule requiring

settled with the Washington D.C. Regional Counsels Office for the Department of

Type of action: Federal Tort Claims Act medical


malpractice/wrongful death
Name of case: Boynton v. U.S.
Date resolved: June 30, 2015

Veterans Affairs.
[15-T-178]

Attorney for plaintiff: Boyd F. Collier Jr., Richmond


Attorney for defendant: Mary Bell, Washington

Special damages: $4,000 funeral bill

Plaintiffs experts: Dr. John Feigert, hematologist;

Verdict or settlement: Settlement

Dr. Mitchell Elkind, neurologist

Amount: $750,000

Insurance carrier: U.S. Government

expert testimony by a physician.


Lannetti rejected the whole of the
plaintiffs argument.
Simply stated, Nurse Budge, as a registered nurse, has neither the knowledge
nor the active clinical practice of a physician neurologist, and she is not otherwise
competent to testify as an expert on the applicable standard of care, Lannetti wrote.
The court declined to follow a Pennsylvania case allowing a nurses expert
testimony on causation as contrary to
Virginia law.
The state of the law in Virginia is you
need to have a physician to testify about
causation, said Richmond lawyer Kathleen M. McCauley, who represented the
defendant physicians in Susko. You dont
pass go if you dont start with the proper
certification, she said.
Because the Suskos could not have reasonably believed the nurse would qualify
as an expert on the applicable standard
of care when they requested service of
process, they were open to sanctions under Va. Code 8.01-271.1, the court said.
Sanctions are mandatory under Code
8.01-50.1, but courts have employed lesser sanctions than dismissal, such as monetary sanctions or deadlines to obtain a

proper expert certification.


Dismissal was appropriate for this case,
Lannetti said, because the plaintiffs had
sufficient time to prepare a proper certification as an alternative to the nurses certification several years after the childs death,
the plaintiffs counsel had faced a dismissal for an improper certification in a nearby
jurisdiction only a few months before filing
the expert certification in the Susko case,
and the plaintiffs never requested leave to
amend their expert certification or to submit a substitute certification.
Defense lawyers routinely take advantage of the pre-service certification statute by checking to make sure a proper
certification is in place, according to McCauley. Most plaintiffs lawyers line up
their experts in sufficient time.
But courts are availing themselves of
the remedy set forth in the statute, as
the Susko case demonstrates, McCauley
said. She said she also won a dismissal
under similar circumstances in August in
Henrico Circuit Court.
Its within the discretion of the court
to dismiss with prejudice, McCauley said.
Hampton lawyer Kevin P. Shea, who
represented the Suskos, could not be
reached for comment.

Page 12 | Virginia Lawyers Media, January 2016

Stark |

n continued from page 5

Fair Market Value Exception. Arrangements meeting the Fair Market Value exception, such as those involving the provision of items or services by a hospital to a
physician, would be allowed to renew indefinitely, regardless of the length of the
initial arrangement, if the terms of the
arrangement and compensation do not
change. Previously, only arrangements
shorter than one year were renewable.
Ownership of Publicly Traded Securities
Exception. The exception for ownership of
publicly traded securities was broadened
to include certain electronic stock markets.
Stand in the Shoes. Physicians who
stand in the shoes of their practice are

Mediation |

the only physicians who may be the authorized signatories of a practice to satisfy an exceptions signature requirement.
Physician Ownership in Hospitals:
Rural Provider or Hospital Ownership
Exceptions. The Affordable Care Act requires certain disclosures by a hospital
with physician ownership on its public
website and in public advertising of the
hospital. The Final Rule further defines
these requirements and provides guidance
on what language constitutes sufficient
notice of physician ownership. The Final
Rule also amends the rural provider and
hospital ownership exceptions to include
both non-referring and referring physi-

n continued from page 5

organization to work through the turbulence and save the board member. The issue may arise between board members or
between a board member and a member
of the leadership team. Either way, this
strain may not allow the board member
to serve to her maximum ability.
A short mediation session may ease
woes and allow the organization to maintain maximum efficiency and production.
It could further save resources by not requiring the organization to solicit to fill
the potential board vacancy with a member that brings the skills, qualifications,
and connections that the departing board
member possesses.
3. Communication is vital. One reason mediation is attractive to hospitals
and senior communities is the fact that
they are realizing that communication is
vital and we all have varying communication styles and techniques. In order for
an organization to have maximum effectiveness, we must learn each others com-

munication styles and adapt accordingly.


This is not an inherent skill in all of us.
Having an outside party work with the
parties to not only overcome an instance
of dispute, but also to help them learn
how to communicate with one another
moving forward, is a great use of resources for an organization.
4. Government agencies are becoming more open to mediation to
resolve non-compliance issues. Regulatory compliance is important, consistently in flux, and cost of non-compliance
is high. Agencies are becoming more open
to mediation to resolve non-compliance
issues saving resources for organizations and helping promote future compliance by the organization.
5. Solid, trusted vendors are important to the overall organizational
function. Mediation can be effective in
resolving issues between an organization
and its vendor. Both parties should have
an interest in continuing their business

Virginia Medical Law Report

cians (including certain non-practicing


physicians), in the applicable bona fide investment level calculations. The effective
date for these changes is Jan. 1, 2017.
Definition of Remuneration. Under
the former regulations, it was not remuneration, and thus outside the scope
of the Stark Law, to provide items, devices or supplies used to collect, transport,
process or store specimens for the entity
furnishing the items, devices or supplies,
or to order or communicate the results
of tests or procedures for the entity.
With the Final Rule, CMS specifies six
purposes for which the provision of such
items and supplies are not remuneration, and only if one or more of those
six purposes exist will the arrangement
not generate prohibited remuneration,

and thus not trigger the Stark Law.


The majority of these changes are effective Jan. 1, 2016. CMS is continuing
to incorporate comments from the 2016
Physician Fee Schedule Proposed Rule
to report to Congress how integrated,
value-based care systems might implicate the Stark Law and whether further
rulemaking may be required.

relationship for mediation to be effective.


6. Resident or patient conflicts can
many times be resolved easily with
a third-party; the resident or patient
may even be retained as a lifelong
organizational supporter thus,
keeping business. A conflict may arise
within a hospital or senior community in
which a simple dispute or issue can tamper the reputation of the organization in
how it is handled. A recent study found
that the majority of victims in malpractice lawsuit claims are actually only seeking an apology for mistreatment. Think
of all the money that could be saved by
bringing together these two parties for an
apology and explanation!
A resident in a senior community may
have a conflict with a staff member. Without effectively resolving the issue, the
senior community may lose a valued resident. With mediation, the resident may
learn why the staff member acted the
way he did, and the staff member may
learn something about client relations
and how to deal with this resident moving forward. It is a win-win situation.
While it is possible to teach a dedicated

individual within an organization about


effective dispute resolution (and we advocate for that training when the situation
allows), it is also important for an organization to recognize when a third party
may be more advantageous to the situation. It is important for the disputees to
feel impartiality from the mediator; there
is no interest by the mediator in either
party and, thus, is fairly working with the
parties to come to an agreement.
There are more minor disputes, however, or situations when an internal organizational mediator may be appropriate.
For example, a dispute between two residents of a senior community may be more
appropriate for an internal staff member
to handle the dispute resolution. Learning how to effectively get the parties to
negotiate to an mutually beneficial agreement is important in the reputation, success and sustainability of any mediation
program within a hospital or senior community. Through mediation, resources
can be saved, important staff retained, efficiency improved and the overall culture
of an organization can be morphed to one
of inherent success.

Kelsey S. Farbotko is an associate in the


Health Care Practice Group of Williams
Mullen and a member of the Health Law
Section of the Virginia State Bar and
the Virginia Bar Association. Patrick C.
Devine Jr. is a partner in the Health Care
Practice Group of Williams Mullen and a
past chair of the Health Law Sections of
the VSB and the VBA.

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