Articles Posted in Medical Malpractice

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.

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.

In a confidential settlement, an anesthesiologist agreed to pay $1,690,000.00 to settle a lawsuit brought by her patient who suffered a torn esophagus due to the negligence of a surgical anesthesiologist.
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Medical malpractice recently cost a Woodbridge, VA woman her leg. The 57-year old Prince William County woman checked into the hospital for routine knee replacement surgery. In preparing the femur, the surgeon drilled all of the way through the back of the bone and severed her artery. Attempts to repair the artery were unsuccessful and the woman’s leg had to be amputated. The defense argued that the injury was simply a known risk of the procedure. HSFM partner Gary Brooks Mims successfully argued that the surgeon used excessive force when drilling and that his negligence violated the standard of care. The case settled for $1.275 million, which will enable the woman to modify her home and to acquire necessary mobility aids to accommodate her life without her leg.