Virginia Injury Lawyer Blog

by Gary Brooks Mims

I am a medical malpractice attorney who has, unfortunately, represented many stroke victims. Failure to diagnose stroke occurs too often and leaves patients with debilitating injuries. And, all too often, those permanent injuries could have been avoided. I recently witnessed how the failure to diagnose stroke occurs when a friend of mine was rushed to the Emergency Room. It’s an instructive story for us all, about stroke, how it is diagnosed, and how it can be missed.

This is a personal story. I received an urgent call from a friend who said her husband — a 40-year-old in good health– suddenly developed headache, distorted vision and difficulty standing.  They had gone straight to the emergency room.  Since I’m a medical malpractice lawyer who’s represented many stroke victims, I was asked to meet them at the hospital.  When I arrived, the symptoms had subsided and I was told that stroke was ruled out. I asked how was it ruled out?   Well, he passed the NIHSS (National Institute of Health Stroke Scale) and a CT of the brain didn’t show a stroke.

Plaintiffs who prevail in personal injury cases in Virginia now face another possible hurdle: delayed resolution due to the defendant’s new ability to appeal to the Court of Appeals.

A new law expands the jurisdiction of the Court of Appeals to include personal injury cases. Prior to the new law, litigants who lost in the Circuit Court (which hears jury trials) could only challenge the verdict by appealing to the Virginia Supreme Court.  In all personal injury, products liability, and medical malpractice cases, the losing party had to first ask the Virginia Supreme Court for permission to appeal. Permission – or a writ — was rarely granted.

Now, the result of any case may be appealed to the Court of Appeals. What does that mean for personal injury plaintiffs?

Frei, Mims and Perushek has been honored as the “Most Trusted Personal Injury Firm – Virginia” by The New World Report as part of its annual North America Business Awards. The online publication’s announcement said the awards “honour those whose efforts have yielded outstanding products and services and that all recipients are judged solely on merit…We only commend the businesses and services which stand out from the crowd and have gone the extra distance to ensure their client’s satisfaction.”

You believe you are the victim of medical negligence and you are, understandably, anxious to pursue your case. You’ve retained a medical malpractice attorney, obtained your medical records and now you want your suit filed ASAP. Before the case can be filed, however, under Virginia medical malpractice law an expert witness must first review the case and “certify” that your case has merit.

What’s the process for “expert certification?” How long does it take?

Medical malpractice is a very complicated area of law, involving legal definitions for “standard of care,” “negligence,” “damages,” and more. If you’ve retained an experienced medical malpractice attorney, you’ve already shortened the amount of time it will take to for your case to be “certified.” At Frei, Mims and Perushek, when our attorneys assess your case, they apply more than 40 years of trial experience and significant expertise in the medicine to advise whether your case will be seen as one with merit. The next step is for the firm to search and identify a leading medical expert to certify your case. “We’ve handled hundreds of cases of medical negligence, surgical mistakes, anesthesia errors, and failures to diagnose cancer,” explains partner Gary B. Mims. “Sad as that is, those cases have created for us a powerful, in-house knowledge bank and relationships with some of the leading medical experts in the country.”

Our recent case where an ATM user was struck by a driver who inadvertently accelerated is featured in the July issue of Trial Magazine, published by the American Association for Justice. (See  our case result: “$2.33 Million to Victim Run Over at ATM” Case Result.)

Professional attention by the legal community to the case underscores the seriousness of the accident and the hazardous conditions which led to our client’s permanent, life-altering injuries. Those conditions are now the basis for a premises liability action in federal court.

Partner Gary Mims achieved a settlement of $2.33 million (under the terms of the settlement, the identity of the parties is confidential), comprised of $2 million from the plaintiff’s husband’s umbrella policy with this employer; $250,000 from the driver; and, $50,000 from the plaintiff’s uninsured motorist policy. The umbrella policy insurer agreed to a waiver of subrogation, enabling us to pursue a federal claim on behalf of our client against the property owner where the ATM was located.

You suspect that you may be a victim of a medical error. Perhaps you believe that your condition was misdiagnosed or diagnosed too late, or you’ve had complications following surgery, or serious issues related to medication. How do you learn if your treatment was negligent and is an actual case of medical malpractice?

Did you experience a medical error? What is a “medical error?”

The American Medical Association defines an error in the context of health care as “an unintended act or omission or a flawed system or plan that harms or has the potential to harm a patient.” The National Institutes of Health (NCBI) defines medical error as “the failure of a planned action to be completed as intended (an error of execution) or the use of a wrong plan to achieve an aim (an error of planning.)

This spring, Frei, Mims and Perushek partner Matt Perushek is contributing to online professional development events sponsored by the legal community. At the Virginia Trial Lawyers Association 2021 Tort Law Seminar, Matt is moderating a Q&A session on how bankruptcy might affect a case in the “Protecting Your Client’s Recovery” section. For the Virginia State Bar Association, Matt contributed advice on “tough questions” in a live, interactive continuing legal education course. Matt is active in both organizations, serving on the Board of Governors of the Virginia State Bar’s Young Lawyers Conference and as a member of the VTLA Amicus Committee.