Northern Virginia Personal Injury Lawyer - Medical Malpractice

But I Could Have Died! Don’t I Have a Virginia Medical Malpractice Case?

Ben Glass — Wed, 02 Mar 2011 13:55:00 GMT

In life, there are a lot of “what ifs.” What if you had made a different decision? What if that illness hadn’t occurred? What if your doctor’s error had caused you injury, or even your death? When it comes to Virginia medical malpractice cases, you won’t win based solely on “what ifs.”

We frequently have people call us after the hospital or doctor makes a mistake. They will pose questions to us – “what if I hadn’t caught the mistake?” While it is unnerving to discover that your doctor made an error, that mistake alone doesn’t warrant a medical malpractice claim.

You have to prove that you were injured.
Medical malpractice suits are some of the most difficult cases to win. Just because your doctor was careless, doesn’t mean you will recover any money. You have to also prove that this medical mistake caused you harm. There has to be a clear connection between your physician’s carelessness and your injury.

With all that being said, if your doctor was careless, but you didn’t suffer an injury, don’t expect to win your case. The fact that your medical provider might have caused you damage is not enough.

Learn more by watching the video, Is There a Malpractice Claim if You Almost Died?

Originally posted at InjuryBoard by Ben Glass

Another Virginia Medical Malpractice Victim Robbed

Ben Glass — Fri, 04 Jun 2010 18:14:00 GMT

A Virginia jury awarded Shannon E. Taylor, a medical malpractice victim, $3 million following a four-day trial.

Ms. Taylor had sued Dr. Katherine Averill and Winchester Womancare for injuries stemming from a hysterectomy in July 2007. She had surgery at Winchester Medical Center where Dr. Averill, “negligently, grossly negligently and recklessly breached her duty of care to the Plaintiff Taylor” during and after Ms. Taylor’s operation, according to the complaint that was filed.

The plaintiff accused Dr. Averill of using material from the anterior rectal wall instead of peritoneal tissue to restore the vaginal cuff after Ms. Taylor’s uterus was taken out. Consequently, she sustained lacerations and other injuries.

The complaint mentioned that prior to finishing the procedure, Dr. Averill didn’t adequately determine the placement of the sutures. Allegedly, Dr. Averill also failed to take proper steps to “follow up with, treat and timely remedy Taylor’s condition, status and injuries.”

After the jury heard the arguments made from both sides, they came to a unanimous verdict, which found the defendants liable for Ms. Taylor’s injuries.

According to Richard L. Nagle, one of the defense lawyers, they will probably file a motion to set aside the jury’s verdict or reduce the jury award to make it fall within the statutory limit.

Although the jury felt that the plaintiff deserved $3 million for the injuries she sustained in this Virginia medical malpractice suit, she will most likely only receive about half. This is yet another case of someone who will be robbed by Virginia’s statutory cap on medical malpractice damages.

Originally posted at InjuryBoard by Ben Glass

Waiting Until The Last Minute to File a Virginia Medical Malpractice Suit Isn’t a Great Idea

Ben Glass — Tue, 25 May 2010 16:41:00 GMT

So many medical malpractice attorneys will wait until the last minute to file a lawsuit with the hope that the insurance company will settle without going to court. In my opinion, this isn’t a great practice.

There are some valid reasons for delaying the filing of a lawsuit, but waiting for the purpose of settling with the insurance company outside of court doesn’t always work out. In fact, it can be very risky.

I have heard of countless cases where lawyers delayed filing the suit, only to later discover that they named the wrong defendant or someone else was at fault.

The problem associated waiting until the last minute is even worse for out-of-state attorneys. When they can’t reach a settlement with the insurance company, they often end up panicking and rushing to find a local Virginia medical malpractice lawyer to help them. I receive a lot of these calls and I reject them right away.

The way my law firm approaches medical malpractice cases is that we file the lawsuits before the negotiations commence. I have found this to be effective because if we can’t settle, we already have a trial date scheduled and can move forward with our case.

Originally posted at InjuryBoard by Ben Glass

Virginia's "Tort Reform" Cap Robs Family of Nearly $1.15 Million

Ben Glass — Wed, 24 Mar 2010 14:30:00 GMT

There is a reason as to why some insurance companies in Virginia take every case to trial, which is illustrated in a recent wrongful death case.

Hector Alvarez, a 52-year-old Springfield resident, complained of chest pains and difficulty swallowing after a piece of steak had gotten stuck in his throat.

On July 6, 2006, Alvarez went to the Inova HealthPlex at Franconia-Springfield, where numerous tests were administered, including X-rays, an EKG and a CT scan of his chest. William J. Dunwoody III, a radiologist with the Association of Alexandria Radiologists, reviewed the CT studies. Based on Dunwoody’s computer notes, he was under the impression that Alvarez was suffering from a large hiatal hernia.

Around midnight, Alvarez was transported by ambulance to Inova Fairfax Hospital. On July 7, a surgeon reviewed Alvarez’s CT scan and noticed the perforated esophagus. Alvarez was immediately prepared for surgery to repair the esophagus. The surgeon also ordered an epidural catheter for Alvarez.

When the epidural catheter was inserted and the anesthetic applied, Alvarez went into cardiac arrest and later died on July 17, 2006. It is believed that Alvarez was extremely weakened from suffering from the perforated esophagus for almost 24 hours and wouldn’t have gone into cardiac arrest, if he wasn’t so sick.

In March 2007, Deborah A. Alvarez, Hector’s widow, filed a wrongful death lawsuit against Dunwoody, the Association of Alexandria Radiologists and Fairfax Anesthesiology. Fairfax Anesthesiology agreed to pay $600,000 following a pretrial process. However, the Association of Alexandria Radiologists, which is insured by ProAssurance, did not make a settlement offer. ProAssurance is notorious for taking cases to trial and frequently not making a settlement offer before trial.

The Fairfax County jury awarded nearly $3 million to the family, but due to Virginia’s ludicrous “tort reform” cap on medical malpractice judgments, the award was cut by nearly half. The cap in 2006 was $1.85 million. This family was robbed of close to $1.15 million. A jury had listened to the evidence presented in the case for over a week and determined that $3 million would bring justice to the family.

In Virginia, a jury is never informed of the arbitrary cap on damages, making the work and time they put into each case to determine the appropriate amount largely wasted. Another case shows this fact, which involved a $4 million jury verdict to a woman, by the name of Rita Talbert, who was burned in an operating room fire. Due to Virginia’s “tort reform,” $2.25 million was stolen from this woman.

Virginia’s cap forces many medical malpractice cases to go to trial, because insurance companies know that they have little to lose, even if they are completely off in their projection regarding their chances of losing and the case value.

Originally posted at InjuryBoard by Ben Glass

Determining if You Have a Virginia Medical Malpractice Claim

Ben Glass — Fri, 26 Feb 2010 16:58:00 GMT

When you are hurt by medical negligence, you are facing an uphill battle. Virginia medical malpractice cases are not easy to win. In fact, studies have found that patients will win in only 23 to 39 percent of cases that go to a jury trial.

Not every injury or death that occurs while under the care of a physician is grounds for a medical malpractice lawsuit. People get sick and some die, which has nothing to do with medical negligence.

To determine if you have a case against your doctor or other medical provider, your attorney will need to gather all of the pertinent medical records regarding your care. You will also need to provide as many honest facts about your case as you can. It is important that you don’t hide anything from your Virginia medical malpractice attorney.

After your attorney has received and looked over all of your medical records and has interviewed you, he or she will be able to tell you whether or not it looks like you have a provable case of medical malpractice.

To have a successful medical malpractice claim, it needs to be confirmed by expert testimony. An expert would be a doctor in the same field of medicine as the negligent doctor. This medical professional would have to be willing to say that the other doctor’s conduct was below accepted standards. It needs to be shown that there was a major medical error, not just a simple mistake or bad test results.

Originally posted at InjuryBoard by Ben Glass

Fire in the operating room, more dangerous than you can imagine

Ben Glass — Tue, 10 Nov 2009 17:59:00 GMT

The Supreme Court of Virginia has recently upheld a verdict against an Alexandria Virginia surgeon in a case that highlights the danger known to the medical profession.

Rita Talbert went to Alexandria Hospital for simple thyroid surgery in 2005. This was to be an outpatient surgery. During the surgery oxygen was ignited in a flash fire erupted in the operating room. Ms. Talbert was severely burned, has had to undergo many surgeries and, according to published reports, has incurred medical bills in excess of $500,000.

The hospital and the anesthesiologists settle the case before trial for a total of $710,000. Virginia's damages for malpractice cases occurring in 2005 at $1.75 million.

Debra Hutchins MD, the surgeon, according to published reports, refused to settle the case.

And Alexandria jury awarded Ms. Talbert $4 million as full compensation for her injuries. The verdict was reduced to Virginia's cap on damages and that further reduced for the amounts she had previously received and settlement.

Dr. Hutchins appealed the verdict and raised several issues however the Supreme Court of Virginia throughout the appeal ruling that it had not been filed on time.

Operating room fires occur hundreds of times a year with many of the injuries resulting in serious, disfiguring burns. The risk of injury can be reduced when the surgeon and the anesthesiology team communicate well and titrate the amount of oxygen being used at the time an instrument such as a cautery is being "fired up."

Here is another report on this terrifying ordeal which an Alexandria jury felt was the result of carelessness.

Originally posted at InjuryBoard by Ben Glass

Virginia Board of Medicine Reprimands Doctor after Lawsuit-A Case That DID Make a Difference

Ben Glass — Sat, 07 Nov 2009 06:45:47 GMT

The Virginia Board of Medicine has issued a formal reprimand to a doctor who has now promised to refer to a specialist any patient who has complaints of rectal bleeding.

In a case handled by our office several years ago, a Virginia jury awarded $1 million to a patient whose complaints of rectal bleeding and abdominal discomfort went were diagnosed as hemmorhoids for years.

According to the Board of Medicine's order, Alan Joshua, MD has "read additional literature" about colo-rectal cancer and no longer performs flexible sigmoidoscopy or anoscopy on patients with rectal bleeding. Instead, he refers them to colo-rectal surgeons for evaluation.

At trial, specialists testified that had this patient been seen by a specialist earlier, he could have avoided massive rectal surgery that left him injured for life.

The Board of Medicine's Order Reprimanding Dr. Joshua and making Virgina safer is here.

Originally posted at InjuryBoard by Ben Glass

Virginia Tort Reform Fund Victim of Alleged Fraud

Ben Glass — Fri, 09 Oct 2009 07:24:19 GMT

About 20 years ago Virginia enacted some of the nation's worst tort reform laws for children injured at birth. This law, which protects doctors and hospitals who elect to participate in it, prevents any lawsuit from being filed on behalf of children who have suffered devastating neurological injuries at birth.

The first real horror of the fund is that neither the doctor nor the hospital are required to tell the patient they participate, so a woman's free and rational choice to choose a doctor is impaired because she doesn't have all of the information she would need.

A second horror is that the fund has been chronically underfunded so that families who do apply for benefits from the fund are constantly made to jump through enormous hoops just to get the benefits the state is providing.

Now a federal grand jury had indicted a Richmond woman for allegedly siphoning off $800,000 from the fund

This case will be interesting to watch. How, exactly, does something like this happen. Unfortunately, this is one of the problems of a government run healtcare system. Under a true tort system that allowed injured infants to recover for medical malpractice this never would have happened.

Originally posted at InjuryBoard by Ben Glass

The Reality of the High Cost of Defensive Medicine

Ben Glass — Sun, 13 Sep 2009 07:16:26 GMT

As the debate ramps up regarding health care reform/insurance reform, one of the subjects that is brought up more and more often is the notion that we need to change the medical malpractice laws, on a national level. Conservatives argue for it and even the President, in a recent address, suggested that aspects of tort reform were on the table in order to fight the high cost of medical care.

The Argument that Defensive Medicine Exists to Protect from Lawsuits

Supporters of malpractice reform argue for limiting the right to sue a doctor, nurse or hospital, either by imposing additional legal roadblocks (expert certification before suit, for example) or by creating artificial limits to monetary recovery, usually by capping compensation for pain and suffering. According to their argument in favor of reform of patient’s rights, health care providers routinely order extra, non-necessary tests, not because it is reasonable to do so but to prevent the physician from being sued later for “not performing every test.” There is a huge cost to society, the argument goes, to all of these extra medical tests being ordered. "The country could lower its cost of medicine,” proponents argue, if health care providers weren’t so afraid of being sued, and thus, didn’t have to order all of these unnecessary tests.

It sounds like a pretty argument when spoken, in part because it is so hard to come up with facts to argue against it. It almost sounds logical. But, in fact, whenever the argument made it is always begins this way: “the estimated cost of defensive medicine is….”

Why is It That They Always Talk About the Estimated Costs of Defensive Medicine?

I suggest that when someone makes an argument that tort reform is necessary to prevent the “huge expense” of so-called defensive medicine” that that we don't let them get away with the "soft facts" they tend to use. Because the practice of defensive medicine is contrary to existing, well-established practice and law, the burden should be on the proponents of the existence of “defensive medicine” to prove that it even exists.

ByLaw, All Doctors are Required to Practice According to the Standard of Care

First, medical malpractice law does not require perfection. The law only requires that a doctor practice in accord with the “standard of care.” The “standard of care” is simply that care that would be required by a “reasonably prudent health care provider acting in the same or similar circumstances.” It is that care that a consensus of “reasonably prudent doctors” would have engaged in with the information they had at the time the decision for care occurred. When a doctor does or fails to do something required by the standard of care, then he or she is negligent.

If harm results from that negligence, then he or she is responsible to the patient for that harm.

A Doctor is Required to Talk to the Patient About Risks and Benefits

By law, doctors and patients act as a team. The doctor does an assessment of the situation, takes into account the information reasonably available at the time, maked a working diagnosis and recommends a course of action. The standard of care requires that a doctor explain to the patient both the risks and the benefits of the proposed course of treatment. This is the law of "informed consent." Ultimately, it is the patient, being fully advised, who
makes the decision as to the course of treatment.

Listen Very Carefully When They Talk About the Cost of Defensive Medicine

Those who argue that defensive medicine drives up the cost of health care in America define the practice as a medical test or procedure that is ordered that has no reasonable basis for giving the physician-patient team information that would be useful to the decision making process of the patient-doctor team. It is ordered, they say, simply to protect the doctor.
In order to believe that there is a true, measureable, cost of so-called defensive medicine, one would first have to ask: how do we know it is actually happening? Those that are “reporting” that they engage in “defensive medicine” are the doctors who have a vested interest in the argument or their medical associations or lobbyists. They “report” practicing defensive medicine but how should a rational person actually measure this or test the assertion?

Are These Doctors Admitting That They Are Violating the Standard of Care?

Think about it. Anyone who says he or she routinely engages in defensive medicine is admitting that they practice outside the standard of care. They admit that they routinely engage in conduct that is, by definition in every state, medical malpractice. Indeed, they are admitting that in their discussion with the patient about the next step to take in their health care, they are lying when they disclose the risks and benefits of the proposed treatment.This is astonishing.

Are They Also Admitting to Insurance Fraud?

Second, any doctor who admits they engage in the practice of “defensive medicine” is saying they are engaging in outright insurance fraud. A health insurance company is generally bound by contract or plan language to pay only those claims that are reasonable and necessary to treat illness or injury. The practice of “defensive medicine” is, by definition, an admission that two people are being lied to and victimized by fraud: the patient and the insurance company. (Either that or the patient and doctor are conspiring to defraud the insurance company.)

Show Us the Records

The only objective, rational way to know whether “defensive medicine” is being practiced is to look at a patient’s actual medical records and have that care reviewed by other “reasonably prudent physicians.” This is never done by tort reform proponents. A doctor who says “I practice defensive medicine (i.e. I lie to the patients and defraud the insurance company) never says “and here are my records to prove it.” How could they? They would go to prison.

The next time you hear any doctor assert that he or she engages in the fraudulent, improper practice of “defensive medicine” ask him or her if they will produce the actual medical records (patient identifiers removed) to prove the claim. Have them tell us that they had a face to face conversation with the patient (as is required under the standard of care) and told the patient “the test I want to order has no reasonable value to the decision-making process in your care.”

It simply doesn’t happen.

Every Patient Needs to Take Responsibility for Their Own Care and Ask This Question

I suggest that in truth, there is very, very little so-called “defensive medicine” actually practiced in the United States. When sent off for testing a patient should always ask and demand an answer for this question: “doctor, what is the scientific and medical basis for this test? What are the odds that something important will be missed if I don’t have this test?”

Originally posted at InjuryBoard by Ben Glass

Cautious Charting Skews Medical Error Statistics

Ben Glass — Sun, 14 Jun 2009 12:20:00 GMT

Medical error statistics are skewed because of underreporting and cautious charting by medical personnel who have been taught to chart “defensively,” meaning that they chart with litigation in mind. Countless medication and other errors are made, and some have been charted as if they were administered or performed correctly. Many serious errors have been minimized in the charted account, or written in a manner that shamelessly places the blame on the patient or others.

A common example of making the patient a scapegoat is to label him/her as having “anxiety,” which effectively discredits both his/her judgment and recount of what was said or done while he/she was receiving medical care. This “diagnosis” will typically be added to a patient’s file if he/she displays annoyance or anger while dealing with a physician.

There are laws in place that protect “Incident Reports,” which document every detail of errors and accidents, from discovery. The intent of such laws was to encourage the person that made the error to give a complete and truthful account of what took place in order to learn how the incident came about.

This knowledge is intended to aid in decisions regarding how to make improvements or other changes to the appropriate systems or behaviors and reduce the chances of the error taking place again.

Incident reports have been barred from discovery in Virginia due to their potential value in elimination of errors if protected, and the potential for falsification of facts if they were available for use in litigation.

Identifying knowledgeable parties who are able to reveal this protected information through deposition could indicate which people, equipment, or supplies could have played a part in the victim’s injury.

Your right to receive compensation for medical malpractice, as well as the amount, is determined by a number of laws and factors, including:

• Statutes of limitations. You are required to file your claim within a specific time limit. The statute of limitations depends upon the type of claim and the claimant’s age, among other factors. An attorney can inform you of which factors apply in your particular claim.

• Plaintiff’s degree of fault. Did the injured party share any of the responsibility for his/her injury (for example, giving an inaccurate medical history)? Your contribution to the injury must be 50 percent or less to be eligible to file a claim for medical malpractice.

• Joint and several liability. These liabilities are taken into consideration when multiple defendants are involved and make all parties responsible for the full amount in the event of any or all of the others being unable to satisfy the judgment. Identifying any possible contributors to the malpractice event is critical to increasing your chances of being compensated.

• Limits on claim. There is no cap on the amount of a malpractice claim. However, some states may have factors that carry an additional impact.

• Other legal considerations. These can include periodic payments from other sources (such as insurance), immunity, and other laws and contributing factors.

With so many variables determining whether or not you are qualified to file a claim, you should consult an attorney early for evaluation.

Originally posted at InjuryBoard by Ben Glass