The VLW Blog

At last, medical malpractice defense attorneys must be saying, a decision from the Supreme Court of Virginia in our favor – albeit in the form of an unpublished order.

To say that the case of Lindamood v. Jamshidi had languished in Fairfax County Circuit Court would be an understatement. The widow of Thomas C. Lindamood filed the complaint in May 2000, more than three years after her husband died from what she said was negligence in treating her husband’s neurological condition.

In October 2001, the plaintiff produced an expert medical opinion in response to discovery, after which, as the Supreme Court said gently, “the case went into a period of inactivity.”

Finally in April 2006, the defendant filed a motion to dismiss because nothing had happened in more than three years. The trial judge denied the motion but set a trial date in June 2007 and entered a uniform pretrial scheduling order that required the plaintiff to designate her experts three months before trial.

The plaintiff’s attorney missed the deadline, and the defendant filed a motion to dismiss the case with prejudice. The plaintiff admitted missing the deadline but contended that dismissal was too strong a sanction in light of a serious, prolonged illness by her attorney and the absence of prejudice to the defendant because he had known the nature of her expected expert testimony for more than five years.

Judge Arthrur B. Vieregg Jr., apparently deciding “enough is enough,” granted the motion and dismissed the case.

“Lindamood’s counsel became aware of his serious illness several months before the deadline for designation of her experts but failed to withdraw as counsel, associate another attorney, or request a continuance or an extension of the deadline,” the Supreme Court said today in affirming Vieregg’s ruling.

“Given the length of time the case had been pending, the court’s denial of a previous motion to dismiss for inactivity, and Lindamood’s failure to comply with the court’s order despite being given eight months to do so, we hold that the circuit court did not abuse its discretion by imposing that sanction.”

Fairfax attorneys Stephen L. Altman and Matthew D. Banks represented the defendant.

The ruling in the case argued last month follows two decisions in favor of plaintiffs on June 6, giving plaintiffs 11 straight published decisions in their favor from the court. Last week, the court issued an unpublished order that sided with a plaintiff.

By Alan Cooper

Medical malpractice plaintiffs continued their string of wins in the Supreme Court of Virginia in an unpublished order issued today.

The case, Kraina v. Carman, stemmed from the removal of ruptured breast implants by Norfolk physicians in November 2001. In her original complaint, the plaintiff specified injuries that she alleged were caused by the failure of the defendants to properly prescribe antibiotics to cure an infection after the surgery. In addition, she filed a general allegation of negligence based on her treatment from March 2001 though the date of the surgery.

In answers to interrogatories, plaintiff’s expert contended that the defendants were negligent in performing all aspects of implant removal and breast reduction in the same procedure. In her designation of the expert’s testimony, plaintiff said he would assert that defendants should have used a two-stage procedure that would have avoided the infection and loss of tissue. The designation did not allege negligence in treating the infection.

Defendants contended plaintiff had abandoned the original theory of negligence in treating the infection and presented an entirely new theory alleging negligence in planning and executing the surgery itself. The trial judge granted their motion to strike the designation and entered summary judgment because plaintiff did not have expert testimony on causation and the standard of care.

The Supreme Court ruled, however, that the general allegation of negligence was enough to put the defendants on notice that plaintiff was alleging negligence during the surgery itself. The court said the trial judge could properly have excluded the expert’s testimony about post-surgery treatment but erred in excluding it altogether.

The ruling in the case argued in June followed two decisions in favor of plaintiffs on June 6, giving plaintiffs 11 straight decisions in their favor from the court.

By Alan Cooper

Failures to communicate were the keys to two medical malpractice cases decided today in favor oF plaintiffs by the Supreme Court of Virginia.

In one, Williams v. Le, a diagnostic radiologist never reported directly to the treating physician or his staff that a Doppler sonogram showed that a patient had a deep vein thrombosis in her right lower leg.

The radiologist testified that he was placed on hold when he attempted to call the physician and was unable to leave a voicemail or talk directly with anyone. Instead, he sent an urgent fax to the physician. The physician did not see the fax or learn of the diagnosis before the patient died six days after the procedure from a pulmonary embolism caused by the thrombosis.

The patient’s estate settled with the treating physician’s practice group and her health plan, and the case went to trial against the radiologist. The jury was instructed that it should decide in favor of the radiologist if it concluded that the death was the result of a superseding intervening cause.

That instruction should have been given only if reasonable persons could conclude that the treating physician’s later negligence was such that the radiologist’s negligence did not contribute in the slightest degree to the death, Justice Donald W. Lemons wrote for the court. The instruction was in error because the uncontradicted evidence was “that the communication problems in this case were begun and put in motion by [the radiologist’s] failure to make direct contact” with the treating physician or his staff, Lemons wrote.

In the second case, Webb v. Smith, a physician agreed to remove the uterus and ovaries of a women in the same procedure. He removed the uterus but forgot to remove the ovaries. The woman underwent a second surgery to have the ovaries removed. A jury awarded her $75,000 in damages because of the necessity for the second surgery.

An expert witness testified that the physician breached the standard of care in by agreeing to perform two procedures in one surgery but in failing to do so. The witness said nothing about the medical need for the second surgery, and the trial judge set aside the verdict because of the absence of expert testimony on causation.

The Supreme Court reversed, 5-2, finding, in an opinion by Senior Justice Roscoe B. Stephenson Jr., that “the present case presents one of the rare instances in which expert testimony was not necessary or appropriate.” Justices Cynthia D. Kinser and G. Steven Agee dissented. They said the physician had testified that there was no medical necessity for removing the ovaries, and there was no testimony to contradict that assertion.

A Clifton Forge woman who claimed that her bunionectomy led to permanent, disabling pain and the amputation of her toes won a $3.5 million verdict from a Roanoke jury on Friday. With the cap on medical malpractice damages, the award would be reduced to $1.65 million. Attorney Patrick T. Fennell represented the plaintiff in the 4-day trial. Defense counsel Paul Kuhnel says that there is no decision yet on an appeal. The defendant is Troutville podiatrist Jennifer K. Feeny.

The University of Virginia Health Services Foundation does not have charitable immunity, the Supreme Court of Virginia ruled unanimously today.

“HSF operates like a profitable commercial business with extensive revenue and assets. That portion of HSF’s services providing quality medical care to medically indigent patients is commendable,” Justice Donald W. Lemons wrote for the court in University of Virginia Health Services Foundation v. Morris. “However, when an organization is operated ‘in a manner calculated to produce a profit or gain,’ it is not entitled to charitable immunity.”

Judges in Norfolk and Portsmouth had granted charitable immunity to the HSF’s counterpart at the Eastern Virginia Medical Schools, but circuit judges sitting in Charlottesville Circuit Court had split on the issue with Judge Edward L. Hogshire of Charlottesville and H. Thomas Padrick Jr. of Virginia Beach, sitting by designation, finding it not to be charity, and Judge Randy I. Bellows of Fairfax, also sitting by designation, ruling that it is.

No expert testimony is needed to establish that a dialysis center was negligent in placing a patient in a chair that collapsed—twice, the Supreme Court of Virginia ruled today.

“The issue of the defendant’s acts of medical negligence regarding the defective chair is quite simple and within the common knowledge of a lay jury,” the court held.

The case of Coston v. Bio-Medical Applications of Virginia Inc. was one of two medical malpractice cases the court reinstated.

In the second, Lloyd v. Kime MD, the court held that a neurologist who no longer performs surgery or has an active clinical practice nevertheless could testify about postoperative treatment by an orthopedist of a man who underwent a cervical diskectomy. The neurologist also could testify about the proximate cause of the plaintiff’s injuries, but he could not testify about the standard of care during the operation itself, the court held.

Chief Justice Leroy Rountree Hassell Sr. noted that the University of Virginia Health Services Foundation pays annual bonuses ranging from $70,000 to more than $850,000 to physicians who work at U.Va. Hospital.

“To me, it raises a big eyebrow,” Hassell told Charlottesville lawyer Donald R. Morin, who was trying to convince the Supreme Court of Virginia that the foundation has charitable immunity.

Morin responded that those amounts must be considered in the context of the salaries necessary to attract the best talent to a world-class medical school.

Hassell countered with a chuckle, “I think I’m on a world-class court, too,” adding that he and his colleagues get no such bonus.

The court heard arguments today in two cases in which Charlottesville Circuit Judge Edward L. Hogshire found that the foundation does not have immunity and one from Fairfax Circuit Judge Randy I. Bellows, who sat in the Charlottesville court by designation and found that it does.

Morin fielded far more questions than the attorneys who argued for the plaintiffs, Matthew B. Murray, R. Frazier Solsberry and L. Steven Emmert.

Justice G. Steven Agee focused, for example, on how those bonuses are determined. He noted that they are based on the amount of income generated by the physicians and their departments rather than on the amount of charitable work that they do.

The justices did not seem to be impressed, however, by arguments that the foundation gets its status as a charitable institution for tax purposes from support of the university and its hospital rather than from its own independent status as a charity.

That election for tax purposes has little to say about whether it meets the criteria for charitable immunity that the court established in Ola v. YMCA of South Hampton Roads Inc. (VLW 005-6-098), Justice Donald W. Lemons said.

It was a good day in the Supreme Court of Virginia for the holders of big verdicts.

The court affirmed seven-figure judgments in four cases with nothing in common other than the size of the awards.

In Commonwealth Transportation Commissioner v. Target Corp., the court upheld an award of $3.3 million in damages to the residue of the property taken in the condemnation of land taken for the expansion of Roberts Parkway in Fairfax County.

The retailer contended that the project hampered the visibility of its store. The court ruled that the commissioner had not preserved its objection to visibility as an element of damages but emphasized that whether it can be remains unresolved.

In John Crane Inc. v. Jones, the court affirmed a $3.4 million award for estate of a man who died from mesothelioma contracted while installing asbestos insulation on ships at Newport News Shipbuilding & Dry Dock Co.

In King v. Cooley, the court upheld a $1.65 million judgment for a woman who contended that she suffered a permanent brain injury from complications of gastric bypass surgery.

In Banks v. Mario Industries, the court affirmed a $1.6 million judgment for a lighting manufacturer and supply company against former employees who left the company to form a competing business. The company alleged tortious interference with contract, breach of fiduciary duty and related legal theories.