by Gary Brooks Mims

oliver-wendell-holmes-300x300When you think of the law, most of us tend to think in terms like “justice,” “equality,” or “fairness.”  Unfortunately, the law is not always fair, nor does everyone receive equal treatment, and often, it does not succeed in meting out “justice.” Virginia medical malpractice law offers at least two examples of this.

The first involves the statute of limitations. Recently, an 18-year old woman came in to the office for a consult. As an infant, she was injured by the negligence of her doctor in a surgery that left her without most of her intestine. She asked me about the statute of limitations.

Partner Gary Brooks Mims has been appointed by Chief Justice Donald W. Lemons of the Supreme Court of Virginia to the faculty for the Virginia State Bar Harry L. Carrico Professionalism Course. The course is mandatory for all members of the Virginia State Bar.

The course must be completed within 12 months of becoming an active member of the Virginia State Bar, as established by the Supreme Court of Virginia in 1987.  The course faculty is drawn from “among the best judges and lawyers in Virginia who have a deep commitment to the principles that underlies the Rules of Professional Conduct and inspire professionalism in the practice of law.”

photo__2220877_matt_profile001Sickels, Frei and Mims, LLP associate Matthew Perushek was named to the “Top 40 under 40” roster by the National Trial Lawyers Association. The honor is by invitation only and is awarded exclusively to civil plaintiff and/or criminal defense attorney.

The Top 40 membership is extended to a select few from each state who exemplify “superior qualifications, trial results and leadership as a young lawyer under 40.” Selection is based on a thorough multi-phase objective process which includes peer nominations combined with third-party research.

A graduate of the Antonin Scalia Law School at George Mason, Perushek clerked for the Honorable Michael F. Devine of the Fairfax Circuit Court.  He joined Sickels, Frei and Mims in 2013. He is active in the Fairfax and Virginia bar associations and will serve as district representative of the Young Lawyers Conference. He was named a Super Lawyers Rising Star 2015-17.

82124 - Gary Brooks MimsFairfax, VA, United States — Monday, August 15, 2016 — Sickels, Frei and Mims, L.L.P. attorney Gary Brooks Mims was recently selected as 2017 “Lawyer of the Year” for Medical Malpractice Law in the Washington, D. C. metropolitan region.

Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant. These lawyers are selected based on particularly impressive voting averages received during the peer-review assessments.

Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, their professionalism, and their integrity.

On May 3, 2016 a leading peer reviewed medical journal “The BMJ” (formerly known as British Medical Journal) included a study authored by Professor Martin A. Makary (professor of surgery at the Johns Hopkins University School of Medicine) that shows just how common death occurs in America due to medical error—malpractice. This study was a front page story in May 3, 2016 Washington Post ( https://www.washingtonpost.com/news/to-your-health/wp/2016/05/03/researchers-medical-errors-now-third).

The study may shock some. Why? Because there is a systematic wall of silence that prevents the public from learning about negligent medical practices. When death occurs at a hospital as a result of negligence, information about the cause of death is usually kept secret from the patient’s family and the public. Frequently family members come to us because they want to know why a loved one died while in the hospital—not because they want to sue someone. They come to us because the hospital will not provide a cause of death—beyond something as vague as “cardiac arrest”. The term “cardiac arrest” might be accurate, but it says nothing about why the heart stopped.

If a plane or train crashes, the National Transportation Safety Board (NTSB) will investigate to determine the cause. This occurs regardless of the number of people injured. Why? To make air and rail travel safe—regardless of who might ultimately be held financially accountable. Frequently, hospitals will also investigate the cause of death but, unlike the NTSB, its investigation is kept secret. The hospital will not share with the family or anyone else the results of the hospital’s investigation.

In Virginia, state law imposes a “cap” on damages that can be recovered in medical malpractice cases. In 2016, the cap is $2.20 million, for acts of malpractice that occurred between July 1, 2015 and June 30, 2016 (Va. Code §8.01-581.15). This cap is imposed regardless of the circumstances of how the injury occurred, the severity or duration of the injury, or of the need for continuing treatments such as lifelong care. What does this mean to you as you or your family or friends try to pursue justice for medical negligence?

Consider a sad but straightforward medical malpractice case: A five-year old boy hospitalized for a routine procedure is given the wrong medication. He suffers an irrevocable brain injury that leaves him permanently disabled, requiring full-time care for the rest of his life (about 60 years). At trial, a life care planner testifies that the child’s care will be $300,000 per year or about $18 million over his lifetime. The negligence is undisputed. The jury returns a verdict in the amount of $25 million (lifetime care plus $7 million for diminished quality of life) to be placed in trust for the child’s benefit. The judge thanks the jurors for their service to the community and they leave, believing that they have justly compensated this young boy. However, unbeknownst to the jury, the judge will reduce the verdict by $23 million down to the cap of $2 million (the cap at the time of the malpractice), leaving the boy’s family with extraordinary financial pressures to try to care for their son during their lifetime. This would likely bankrupt most families.

This means two things to you when you consider pursuing a medical malpractice case. The cap is unfair but it is a reality. Second, the lawyer you choose must actively prepare the case for trial, not merely pursue a settlement. Why? Why incur the expense of experts, depositions, document review and other necessary steps in trial preparation? Because the defendant in Virginia has little to lose by going to court as his risk is clear and contained — the cap is the most the defendant can lose, regardless of any circumstances of the case. As a result, settlement offers from the the defendant’s insurance company are generally far less than what the case is worth and nearly always less than the cap.

CASE RESULTS DEPEND ON A VARIETY FACTORS UNIQUE TO EACH CASE. CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY THE LAWYERS OR LAW FIRM.

Sickels, Frei & Mims is proud to announce that Chuck Sickels and Matt Perushek have secured a settlement of $495,000 for a Plaintiff in a Federal Tort Claims Act (“FTCA”) case.
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When I meet with potential clients for the first time, I am frequently asked about the process of making a personal injury claim. This is not surprising. You hire a personal injury attorney to handle the process for you because you do not know how it works. With that said, I think it is important for clients to have a basic understanding of what happens throughout the process, especially since clients often wonder about their involvement once they hire an attorney. In this post, I will give you just that – a summary of what happens when you make a personal injury claim using our firm.
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