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Volume 10, Number 2 MARCH 2013

MEDICAL LAW REPORTV I R G I N I A

3 | PATIENTS’ PREROGATIVESDocs, lawyers working together on advanced directives

6 | TORT REFORMMedical Society-backed bills signed by governor

10 | MILLION-DOLLAR MED-MALDEFENSE VERDICTS OF 2012

I N S I D E INSIDE: Unhappy Patient?Page 4

BY DEBORAH ELKINS

Emotions ran high in a Roanokeoperating room in November2009, as a trauma team foughtto save the life of a man whohad been hit by a tractor-trailerwhile walking.

The trauma surgeon clashed withthe anesthesiologist and accusedhim of giving up on the patient. Thesurgeon, a vice chair of the surgerydepartment at Carilion MedicalCenter, offered a harsh assessmentof the anesthesiologist’s perform-ance.Doctor Robert S. Smith, in the

presence of others, made a series ofstatements to and about Dr. BradleyJ. Cashion: “He could have made itwith better resuscitation. This wasa very poor effort. You didn’t reallytry. You gave up on him.”Ultimately, Smith accused Cash-

ion of having “euthanized” the pa-

tient. Cashion sued Smith for defama-

tion, seeking damages of $2.35 mil-lion. Roanoke Circuit JudgeJonathan Apgar said the statementabout “euthanasia” could be provenand therefore could support a claimfor defamation. The other state-ments, the court said, were opinionand were protected.But the “euthanasia” claim never

got to a jury. Apgar said the surgeonhad a qualified privilege to air con-cerns about another doctor’s per-formance, and the plaintiff doctorhad not shown the surgeon was mo-tivated by any malice that wouldhave overcome that privilege.Whether a jury should get to hear

the case is now before the SupremeCourt of Virginia, which agreed lastmonth to hear the anesthesiologist’sappeal. It’s not the first time the state

high court has considered an al-leged attack on a doctor’s reputa-tion.

High court to heardoc defamation case

here is constant tension be-tween doctors and workers’

compensation carriers over howmuch to pay medical providersto treat injured workers. Thestakes are high because paymentfor care runs into the multi-millionsof dollars for employers.

The score was split this month, witha win each for providers and carriershanded down in recent weeks – onefrom the Court of Appeals and one fromthe Workers’ Compensation Commis-sion.

The Court of Appeals of Virginia saidon Feb. 19 that a Newport News ortho-pedic surgeon was not bound by spe-cialty-network rates that cut his pay-ment to less than a tenth of the amounthe billed. The court said cashing twoinsurance checks did not mean the doc-tor waived notice of his automatic en-rollment in a provider network.The insurer was victorious in the

other case. The insurer used depositiontestimony from a neurosurgeon whosaid a physician assistant’s charges ex-ceeded the prevailing community rate.The commission blocked the effort ofan orthopedic practice to charge an ex-

BY SARAH RODRIGUEZ

A Hampton jury has re-turned a record-setting $25million verdict to a MathewsCounty man who suffereda massive heart attack aftera cardiologist failed to de-tect an artery blockage.

The award appears to be thelargest personal injury awardout of Hampton, and the largestmedical malpractice verdict in

Virginia state court. Attorneys for the plaintiff

hope to challenge the statutorymed mal cap, which would re-duce the award to $2 million –an amount that would coverroughly half of the plaintiff ’sprojected medical bills. “The problem with the cap is

that it punishes people who needit the most,” said Richmond at-torney Jason W. Konvicka, whorepresented the plaintiff alongwith Malcolm P. McConnell III.“It’s not a just system.”At 37, Christopher Denton

was a fit, active father of threewho ran a lawn care businesswith his wife. He had none of thecommon risk factors for cardiac

disease, and no family historyof heart problems, accordingto Konvicka. But on the morn-ing of Jan. 31, 2010, he expe-rienced a sudden onset ofchest pain, shortness ofbreath, sweating and jawpain. His wife called 911, and he

was taken to the RiversideWalter Reed Hospital inGloucester, where his EKGswere read as normal. The follow-ing day, he was seen by a cardi-ologist, who did not believe thatanything was seriously wrong.

However, Denton insisted on acardiac catheterization to ruleout heart disease.On Feb. 2, 2010, Denton was

transferred to Riverside Re-gional Medical Center and a car-diac cath was performed by car-diologist Edward Chu, M.D.Both during and following thecath procedure, Dr. Chu in-formed Denton that his arterieswere clean, normal and free ofdisease. Denton was diagnosed with

pericarditis, a viral infection of

T

KONVICKA MCCONNELL

Doctors’CompPhysicians who treat hurt

workers resist low network fees

BY PETER VIETH

Hampton jury awards $25M in med-mal case

� See Defamation, on PAGE 14

� See Comp, on PAGE 14

� See $25M, on PAGE 13

Page 2 | © Virginia Lawyers Media, March 2013 Virginia Medical Law Report

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‘Influential Women of Virginia’ for 2013 namedVirginia Lawyers Media, publishersof Virginia Lawyers Weekly and theVirginia Medical Law Report, hasannounced the Class of 2013 of“Influential Women of Virginia.”

This awards program, now in its fifthyear, recognizes the outstanding effortsof women in the commonwealth in allfields, including law, business, health care,education and the arts. The honors aregiven to individuals who are making no-table contributions to their chosen pro-fessions, their communities and societyat large.The 2013 honorees are:

• Nancy Bagranoff, Robins School ofBusiness, University of Richmond

• Janet Barnett, Senior Services ofAlexandria, Alexandria

• Viola Osborne Baskerville, GirlScouts of the Commonwealth, Me-chanicsville

• Jennifer Brust, Bean Kinney & Ko-rman, Arlington

• Melissa Burroughs, Old Point Na-tional Bank, Hampton

• Cathy Caddy, Roanoke Bar Associ-ation, Roanoke

• Hon. Teresa Chafin, Court of Ap-peals of Virginia, Tazewell

• Leisa Ciaffone, Leisa K. CiaffonePC, Salem

• Cassandra C. Collins, Hunton &Williams, Richmond

• Claire Curry, Legal Aid JusticeCenter, Charlottesville

• Teresa DiMarco, WellAware Systems, Glen Allen• Lauren K. Ellerman, Frith & Ellerman Law

Firm, Roanoke• Amy Goodloe, Oak Hill Elementary School, OakHill

• Quinn Feldmann Graeff, Medical Facilities ofAmerica Inc., Roanoke

• Hon. Teena Grodner, Fairfax Juvenile & Do-mestic Relations Court, Fairfax

• Margaret F. Hardy, Sands Anderson, Freder-icksburg

• Jill Morgan Harrison, Alpha Natural Resources,Bristol

• Denise Hart, O2 LAB Inc., Washington, DC• Hon. Rondelle Herman, Henrico Juvenile & Do-

mestic Relations Court, Henrico• Dr. Stella Hetelekidis, Radiation Oncology As-

sociates, Falls Church• Carol C. Honigberg, Reed Smith LLP, FallsChurch

• Angela Horan, Prince William County Attorney,Manassas

• Amy Hutchens, Watermark Risk ManagementInternational, Fairfax

• G. LaVern Jackson, Joint Logistics ManagersInc., Prince George

• Laura Lafayatte, Richmond As-sociation of REALTORS, Rich-mond

• Kamala Hallgren Lannetti,City Attorney’s Office, VirginiaBeach

• Hon. Lisa Mayne, Fairfax Gen-eral District Court, Fairfax

• Kathleen McCauley, GoodmanAllen & Filetti, Glen Allen

• Martha Medley, Daniel, Medley& Kirby PC, Martinsville

• Colleen Miller, Virginia Office ofProtection & Advocacy, Richmond

• Monica Taylor Monday, GentryLocke Rakes & Moore, Roanoke

• Michele Killough Nelson,Ph.D., Forensic Psychology Asso-ciates, Midlothian

• Dolly Oberoi, C2 Technologies,Vienna

• Hon. Mary Grace O’Brien,Prince William County CircuitCourt, Manassas

• Sakina Paige, Capital One, Rich-mond

• Elizabeth G. Perrow, WoodsRogers PLC, Roanoke

• Teresa Peters, Stanton PartnersInc., Norfolk

• Sharon Peterson, Alzheimer’sAssociation of Greater Richmond,Glen Allen

• Xin (Cindy) Shao, Asian Ameri-can Chamber of Commerce,Tysons Corner

• Myra Goodman Smith, Leader-ship Metro Richmond, Richmond

• Erin Thomas-Foley, SPARC,Richmond

• Edna Ruth Vincent, Colten Cummins Watson &Vincent, Fairfax

• Dyanne Walker, Web Teks Inc., Chesapeake• Grace Wolf, Council for the Arts of Herndon,Herndon

The honorees will be celebrated at a gala luncheonon May 16 at the Richmond Marriott in downtownRichmond. The “Influential Woman of the Year” for2013, to be voted on by the members of the Class of2013 themselves, will be announced at this luncheon. Each honoree also will be profiled in a special publi-

cation that will be distributed at the event and insertedinto Virginia Lawyers Weekly on May 20.

© Virginia Lawyers Media, March 2013 | Page 3Virginia Medical Law Report

BY PETER VIETH

Doctors and lawyers are work-ing together in Virginia aspart of a project to give mentalhealth patients a greater voicein their own treatment.

Supporters will focus attentionon the issue of patient advance di-rectives on National HealthcareDecisions Day on April 26.Organizers are trying to put legs

on a project spawned by the Vir-ginia Supreme Court’s Commis-sion on Mental Health Reform –giving people with serious mentalissues a chance to express theirtreatment preferences before theyexperience a crisis.Supporters of the project laid a

foundation with changes to Vir-ginia’s advance directives law in2009. For the first time, mentalhealth patients could name a de-cision-maker and describe whatshould – and should not – happenwhen they are out of control.It’s a great, simple idea that is

nonetheless hard to put into ac-tion, said Norfolk lawyer John E.Oliver, one of the leaders of theawkwardly named CoordinatingCommittee for Promoting Use ofAdvance Directives by People withMental Illness.The option for a measure of self-

determination was there after the2009 reform, but there were fewtakers among the target popula-tion. Only a “tiny percentage” ofpersons with mental illness havecompleted such advance directives,reported University of Virginialaw Prof. Richard J. Bonnie in a2011 memo proposing the commit-tee on mental health advance di-rectives.Filling out an advance directive

form takes some thought and care,especially with a mental condition,and only certain professionals canhelp. A doctor or a lawyer canguide the preparation of an ad-vance directive, but for most oth-ers it is considered the unautho-rized practice of law.Many mental health patients

who experience crisis episodes alsohave periods of stability and clearthinking. If they fill out an ad-vance directive form when theyare stable, they can appoint anagent to make decisions for themwhen they’re in crisis, Oliver said.They can direct certain proceduresto use or to avoid. They can evenrefuse certain medications sincethey may know which drugs workfor them and which do not.The idea is to help people stay

out of the hospital and – if theyhave a crisis – to get the treatmentthey prefer and “reduce the coer-civeness as much as possible,”

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� See Directive, on PAGE 14

BY BENJAMIN M. WENGERD

Whether a phone call, request formedical records, or service of amedical malpractice lawsuit, re-ceiving notice that a patient is un-happy with the medical treatmenthe or she received is always a dis-tressing and unpleasant experi-ence.

The steps a doctor takes immediatelyafter receiving notification of a potentialmedical malpractice claim are extremelyimportant to the de-fense of the doctor’scare. Obtaining com-petent legal counsel toreview the uniquefacts of each individ-ual complaint is of ut-most importance. Be-low are additionalprinciples for all doc-tors to remember afterreceiving notice that apatient is dissatisfiedwith the outcome ofhis or her care:

Contact the insurance adjuster.Nomatter the informality or severity of thecomplaint, a doctor should contact his orher insurance adjuster after becomingaware of a potential medical malpracticeaction. Providing prompt notice to theadjuster allows the adjuster to open afile for the matter, to review the factualallegations presented, and to obtain legalcounsel. The legal counsel assigned tothe case will be able to provide advicespecific to the situation. Moreover, if thesituation requires, the attorney can assistwith the formulation of an appropriateresponse to the patient’s complaint.

Secure the patient’s records. A doc-tor should locate and secure all therecords under his or her control, includ-ing non-medical and electronic records,pertaining to the patient’s care and treat-ment. Securing a complete copy of thepatient’s records serves multiple pur-poses. First, having the records in one lo-cation will allow the records to be quicklyforwarded to the insurance adjuster orlegal counsel should the need arise. Sec-ond, maintaining the records in a secure

location increases the probability thatthe patient’s records will remain un-changed after the complaint is received.Even minor or inadvertent alterations tothe patient’s medical record made aftera complaint can present significant prob-lems during the course of a lawsuit. Sep-arate maintenance of the patient’s filesignificantly decreases the probabilityany modifications are made to therecords.

Refrain from investigating the pa-tient’s complaint.A doctor’s natural in-clination after receiving a complaint maybe to investigate the issues raised by thepatient. However, conducting an investi-gation will rarely be in the doctor’s bestinterest. Any additional medical researchundertaken regarding the patient’s com-plaint, any conversations with otherhealthcare providers about the patientor the medical issues involved, or any re-view of the patient’s subsequent medicalrecords could ultimately be discoverableduring the course of litigation. If revealedduring the course of discovery, a doctor’swell-intentioned investigation could po-tentially lead the patient to informationthat could subsequently be used againstthe doctor during the course of litigation.An investigation could lead to previouslyundiscovered medical literature support-ive of the patient’s contentions or previ-ously unconsidered interpretations of thepatient’s medical records. Refrainingfrom any post-complaint investigationeliminates the possibility that the pa-tient’s complaint will benefit from thedoctor’s investigation.

Maintain silence. Although thewarning regarding “the right to remainsilent” portrayed in television crime pro-cedurals only applies to criminal cases,a doctor generally remaining silent aftera patient’s complaint is highly advisable.Silence is of paramount importance be-cause anything a doctor says can (and ifpossible) will be held against him or herthroughout the course of any medicalmalpractice litigation. With some excep-tions, any statement a doctor makes re-garding a patient’s complaint can be usedthroughout the course of any medicalmalpractice case. As noted with respectto an investigation of a patient’s com-plaint, the patient has the ability to dis-cover the occurrence of the conversationsthe doctor had, who the conversations

were with, and in most instances, thesubstantive topics of those conversations.Furthermore, during the course of mal-practice litigation, the patient may takethe deposition of any person the doctorspoke with to ascertain the substance ofthe conversations and the doctor’s exactstatements. Accordingly, maintaining si-lence will greatly limit the likelihood adoctor inadvertently discloses informa-tion or opinions harmful to the defenseof his or her care. There are, however, some exceptions

to the general principle regarding themaintenance of silence. One is the mari-tal privilege. In Virginia, the private com-munications between a husband and wifeare privileged. Because the communica-tions are privileged, the substance of thecommunication between a husband andwife cannot be used as evidence duringthe course of medical malpractice litiga-tion. Therefore, so long as the conversa-tion takes place in private, a doctor candiscuss the patient’s complaint and at-tendant issues with a spouse. Another exception is recognized for ex-

pressions of sympathy the doctor makesto the patient and the patient’s relativesor representatives. Sympathetic expres-sions cannot be used against a doctor asan admission of liability or as an admis-sion against the doctor’s interest. TheVirginia Code does not allow a patient touse a doctor’s benevolent conduct or ex-pressions—such as offering condolences,commiseration, or apologies—against thedoctor to prove liability for an unintendedoutcome. Notably, however, if the doctoradmits fault in addition to expressingsympathy, the admission of fault can beused against the doctor during subse-quent medical malpractice proceedings. After a doctor receives a complaint

from an unsatisfied patient, acquiring le-gal representation must be the foremostpriority. Only legal counsel can fully eval-uate and address the unique issues pre-sented by each individual allegation ofmedical malpractice. However, remainingmindful of aforementioned principles canhelp to prevent a doctor from inadver-tently harming the defense of his or hercare.

Benjamin M. Wengerd practices lawwith Hancock Daniel Johnson & Naglein the firm’s Fairfax office.

Page 4 | © Virginia Lawyers Media, March 2013 Virginia Medical Law Report

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Table Of Contents

Guest Column

When a patient is unhappy

2 ‘Influential Women of Virginia’ for 20133 Giving patients a say4 When a patient is unhappy5 Co-management pact won’t prompt sanctions 6 Tort reform package signed into law

7 State agency must pay attorney’s tab 8 New HIPAA rule means big changes for doctors9 Medical Law Briefs10 Million-Dollar Med-Mal Defense Verdicts of 2012

BENJAMIN WENGERD

BY PATRICK C. DEVINE JR.

The use of co-management agree-ments between hospitals and physi-cian practices has increased in re-cent years, and they may serve asan important component of one ofthe outcomes-driven programs be-ing promoted under the Patient Pro-tection and Affordable Care Act. Ifproperly structured, co-manage-ment agreements can align incen-tives between hospitals and medicalstaff physicians to improve the op-eration of a particular hospital de-partment or service line.

The Office of Inspector General’s Advi-sory Opinion No. 12-22, issued on Dec.31, 2012, affords helpful guidance on howto structure and document those arrange-ments.While co-management arrangements

can result in important efficiencies andimproved quality, they also can raise im-portant concerns under a number of fed-eral laws, including the Civil MoneyPenalty law, or the CMP; the Anti-Kick-back Statute, or AKS; the Stark law; andthe private inurement and private benefitprohibitions applicable to tax exempt hos-pitals. The CMP prohibits arrangementsthat improperly reduce or limit items orservices provided to Medicare and Medi-caid beneficiaries. The AKS prohibits pay-ments intended to induce referrals ofbusiness paid for by the federal healthcare programs. Stark prohibits referralsto a hospital with which a physician hasa financial arrangement unless an excep-tion applies. Federaltax laws restrict thepayment of funds bytax-exempt entities tonon-exempt personssuch as physicians. Based on the partic-

ular facts presented,the advisory opinionconfirmed that OIGwould not imposesanctions on the hos-pital or independentcardiology practice forentering into an arrangement that re-wards the practice for improving effi-ciency and lowering costs at the hospital’sfour cardiac catheterization laboratoriesif certain safeguards are in place. Thehospital certified that a number of im-portant measures would be implementedto ensure that it would not improperlyresult in the reduction of necessary serv-ices or induce the referral of business cov-ered under the federal health care pro-grams.Under the co-management agreement,

the practice would provide managementand medical direction services at the labsfor a co-management fee with two com-ponents: (i) an annual fixed fee, and (ii) apotential annual performance fee (recon-ciled quarterly) based on measures of em-ployee and patient satisfaction, improvedquality of care and reduced costs. Bothfees were supported by independent as-sessments of fair market value whichwould be updated annually to evaluatefair value and clinical appropriateness.Among the specific duties of the prac-

tice would be to oversee lab operations,provide strategic planning and medicaldirection, develop the hospital’s cardiol-ogy program, serve on medical staff com-mittees, provide training for hospitalstaff, credential lab personnel, consult onthe information system, assist with finan-cial and payor issues, assist with publicrelations, and recommend lab equipment,devices and supplies.The cost-saving component of the per-

formance fee arrangement is the mostchallenging, as it could be construed as

an incentive to deny nec-essary care. The partieswere careful to implementmeasures designed to en-sure that all purchasingdecisions would be in thebest interests of the pa-tients and that all prod-ucts would be safe and ef-fective. As proposed, acommittee of interven-tional cardiologists wouldgenerate the initial prod-uct recommendationsbased on a review of evi-dence-based medicine.Physicians would not beprohibited from request-ing a different productwhere they determinedthat it would be bettersuited to address a pa-tient’s unique healthneeds, even if it was moreexpensive and not on therecommended list. Otherproposed cost savingmeasures included theuse of best managementpractices and measures toavoid wasting supplies. The performance fee

arrangement utilizedbase line measures so theincentive compensationwould only be based onimprovements over exist-ing pre-agreement per-formance for each meas-ure. The base linemeasures would be re-benchmarked after the initial three yearterm.From a CMP perspective, the advisory

opinion observed that a number of meas-ures would be implemented to ensureagainst an inappropriate reduction inservices, including: (i) an independentevaluation of fair value of all payments,(ii) the use of an independent utilizationreview firm to monitor clinical appropri-ateness, (iii) the unrestricted right ofphysicians to order any service or devicethat they concluded would best servetheir patients’ needs, (iv) detailed internaland external monitoring processes to en-sure that appropriate care is provided,that patient “cherry picking” based onhealth or payor source would not occur,and that accelerated discharges areavoided, and (v) advising patients of thearrangement and obtaining patient con-sent in advance.From an AKS perspective, the opinion

noted that the safe harbor for personalservices and management contractswould not cover the arrangement becausethe performance fee would not, by its na-ture, be set in advance. The opinion con-cluded, however, that the compensationarrangement had appropriate safeguardsthat overcame that deficiency, including:(i) an independent determination of fairvalue, (ii) the compensation would notvary based on the number of patientstreated, (iii) the hospital operated theonly labs within 50 miles, and the grouponly practiced at that facility, limiting thelikelihood that the physicians would in-crease their referrals to the hospital, (iv)the performance measures were specifi-cally tailored to ensure quality improve-ment, (v) the term of the arrangementwas limited to three years, and (vi) if thearrangement continued after the initialterm, the quality improvement and costsaving measures would be adjusted toavoid continued payment for improve-ments in prior years and to provide in-centives for additional improvements inthe future. Importantly, the opinion does not apply

to the application of Stark or the IRS re-strictions on private benefit and privateinurement. Those limitations must beevaluated separately.

As health care costs continue to in-crease and as third-party payor arrange-ments seek to encourage hospitals andphysicians to collaborate better to fostersuccessful outcomes, the opinion provides

helpful and practical guidance to physi-cians and hospitals on ways they mayalign their interests to better serve pa-tients by creating incentives to lowercosts and improve quality of care.

© Virginia Lawyers Media, March 2013 | Page 5Virginia Medical Law Report

Guest Column

Co-management pact won’t prompt sanctions

RICHMOND4501 Highwoods Parkway, Suite 210Glen Allen, VA 230601-804-346-0600callen@goodmanallen.com

NORFOLK215 Brooke Ave., Suite ANorfolk, VA 235101-757-625-1400dfiletti@goodmanallen.com

CHARLOTTESVILLE1412 Sachem Place, Suite 100Charlottesville, VA 229011-434-817-2180csipe@goodmanallen.com

VIRGINIA BEACH4456 Corporation Lane, Suite 135Virginia Beach, VA 234621-757-961-1164nfoti@goodmanallen.com

Charles SipeSusan L. Kimble

Demonstrating their litigation skills and excellence in the courtroom, Goodman Allen & Filetti attorneys have consistently

been listed in VLW’s million dollar med mal defense verdicts since its inception.

Committed to meeting the legal needs of health care professionals and organizations in Virginia.

Strategy. Efficiency. Results

www.goodmanallen.com

Congratulates

Kathleen M. McCauleySusan L. Kimble

Robert F. DonnellyAnd Charles Sipe

for their success in obtaining Million Dollar Defense Verdicts

Robert F. Donnelly Kathleen M. McCauley

PATRICK DEVINE

Patrick C. Devine Jr. is a partner in the Health Care Practice Group ofWilliams Mullen. He is a past chair of the Health Law Sections of the VirginiaState Bar and the Virginia Bar Association.

BY PETER VIETH

The Virginia General Assembly hasapproved a bundle of bills designedto make Virginia courts more busi-ness-friendly, including three ad-vanced by the Medical Society ofVirginia. The tort reform measureshammered out in early-session ne-gotiations all have been signed intolaw by Gov. Bob McDonnell.

One bill backed by doctors will make iteasier to shift costs for last-minute non-suits. In addition, medical providers canask a judge to examine the prerequisiteexpert opinion for a medical malpracticelawsuit, and medical providers will havemore leeway to challenge claims on behalfof deceased patients. The last bill to be signed by McDonnell

is a measure to conform the statute of lim-itations periods for children’s injuriesclaims and their parents’ claims for med-ical expenses. McDonnell gave his ap-proval March 21.

Under that bill, the parent’s ability toclaim medical expenses will be eliminated.All claims for medical expenses will haveto be filed with the child’s case and wouldfall under the medical malpractice cap,according to a summary from the MSV.Claims for the child’s medical bills

would be governed by the child’s statuteof limitations.Additional new measures passed by the

legislators will relax somewhat the pro-cedural barrier to summary judgment inVirginia civil suits, limit a plaintiff ’s op-tions for picking a friendly court, and closethe door on any expansion of alandowner’s responsibility for a tres-passer’s safety.The strength of the reform campaign

took some by surprise early in the Assem-

bly session. The Virginia Chamber of Com-merce last year signaled a tort reformpush at this year’s Assembly, but the of-fensive took on larger dimensions as thesession began. A separate group, the Vir-ginia Alliance for Tort Reform, suddenlyemerged with deep pockets, a fresh web-site and a high powered team of lobby-ists.At the behest of legislative leaders,

hasty negotiations ensued among the tortreformers, the Virginia Trial Lawyers As-sociation and the Medical Society of Vir-ginia.Once a compromise package was an-

nounced Jan. 23, it was smooth sailing forthe most part at the Assembly. “It looks tous that the legislators down there weregrateful to have agreement and are noteager to revisit this ground again soon,”said Jack L. Harris, executive director ofthe VTLA.Harris made clear the VTLA will not

welcome efforts to reopen the debate overthe state’s tort system. “It is our expecta-tion that we will not be seeing this issueagain for some time,” he said.“We don’t believe the summary judg-

ment and venue changes were reallyneeded,” Harris said. The existing ruleswere “fair and balanced,” he added.Trial lawyers welcomed the clarification

of procedures with the nonsuit bill andthe measure extending parents’ opportu-nity to recover their medical expenses forinjured children, Harris said.A statement from the tort reform al-

liance betrayed no regrets about the com-promise. “We are very pleased with theresults from the tort reform legislativepackage this year,” said spokesman RobertW. Shinn in an email. “The measures thatpassed will help the business communitywith regard to a number of key issues.”The Medical Society of Virginia saw its

reform agenda emerge unscathed from theprocess. Doctors sought the changes in thenonsuit procedure, relaxation of the “dead-man’s statute,” and judicial review ofplaintiffs’ expert certification opinion.“The feedback from physicians has beenvery positive,” said W. Scott Johnson, gen-eral counsel for the MSV.

Page 6 | © Virginia Lawyers Media, January 2013 Virginia Medical Law Report

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Hospital get fees inreimbursement case BY PETER VIETH

The agency that administers Vir-ginia’s Medicaid program has beenordered to pay nearly $70,000 for ahospital’s legal fees in a disputeover reimbursement for medicalservices.

The fee award followed rulings that heldthe Chesapeake hospital did not need tomake more than $350,000 in reimburse-ments to the Department of Medical As-sistance Services.The rulings on reimbursement and fees

for the owner of the Chesapeake RegionalMedical Center come in the midst of asurge in litigation as DMAS puts medicalbills under a microscope, often demandingrepayment from healthcare providersbased on paperwork errors.The case, decided in September by

Chesapeake Circuit Judge V. ThomasForehand Jr., is Chesapeake Hospital Au-thority v. Commonwealth.Another Forehand decision last April

saved the Chesapeake hospital$22,637.43, according to the hospital’s at-torney.News of the Chesapeake hospital deci-

sions follows reports of cases from Fairfaxand Norfolk in which DMAS lost bids forreimbursement. One lawyer in the fieldsaid DMAS has been “very active” overthe past three years in reviewing medicalbills and seeking what the agency terms“retractions.”In the Chesapeake case decided in Sep-

tember, DMAS notified the hospital that– based on a DMAS audit – the hospitalhad been overpaid$364,491.91 for care ofthree patients.In the administrative pro-

cedure used for DMAS pay-ment disputes, the hospitalsought first an informalfact-finding conference andthen a formal hearing be-fore a hearing officer. The ruling of thehearing officer was followed by a finalagency decision from the director ofDMAS.Forehand used a reference to Kafka’s

unlucky hero Gregor Samsa to acknowl-edge his task of reviewing the entire ad-ministrative record, but his decision tookonly seven and one-half pages.For two of the patients, the issue in-

volved the requirement that doctors reg-ularly certify that services being providedfor patients are needed. DMAS faulted thehospital for not providing physician recer-tifications every 60 days after patientswere admitted. The hospital argued thelaw required recertification only after apatient was deemed eligible for Medicaid.In both cases, the patients were no

longer in the hospital 60 days after be-coming eligible.Requiring recertification for those pa-

tients was “arbitrary and capricious,”Forehand ruled in reversing the agency’sdecision.A “plain reading” of the applicable reg-

ulation and statute indicated recertifica-tions are needed only if a patient is “actu-ally in the hospital 60 days aftercertification – or 60 days after programeligibility in the case of retroactive eligi-bility,” Forehand said. To require other-wise “would be unnecessary and duplica-

tive,” the judge said.The hospital may have won

the reimbursement battle forthose two patients, but recov-ering its legal costs required ashowing that DMAS’ positionon the issues was not “substan-tially justified.”The hospital met that stan-

dard, Forehand ruled. Neither theagency’s demand for the full amount ofthe hospital stay based on the recertifica-tion issue nor its interpretation of the un-derlying regulation was substantially jus-tified, the judge said.Forehand ordered $15,000 in attorneys’

fees, possibly intended to represent justthe expenses for the circuit court proceed-ing. A later DMAS informal appeal rulingon remaining attorneys’ fees resulted inan order for an additional $54,659.64,bringing the hospital’s total fee award to$69,659.64.No attorneys’ fees were awarded in

Forehand’s April decision when an initialreimbursement demand of $24,236.44 wascut to $1,599.01. The figures were pro-vided by Jason R. Davis of Norfolk, whorepresented the hospital in both cases.The attorney fee award is significant,

said Jonathan M. Joseph of Richmond,

who says he has been busy with DMASreimbursement cases for several years.The federal government is putting pres-sure on the states to make sure their med-ical money is spent responsibly. In re-sponse, DMAS has hired outside auditorsand has taken a “very strict interpretationof their rules” in making retractions,Joseph said.Many of the cases involve documenta-

tion errors such as unreadable providerqualifications and mistakes in dating

records, Joseph said. Providers “have beenpretty successful in challenging the re-tractions either on the administrativelevel or in the courts,” he said, adding,“Courts are seeing a lot more of thesecases.”The niche practice is growing busier,

but has been little noticed to date. The ar-cane administrative process is daunting,and outcomes often go unreported, evenwhen the cases reach the circuit courtlevel, Davis said.

State agency must pay attorney’s tab

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BY CORREY STEPHENSONDOLAN MEDIA NEWSWIRES

Doctors, hospitals, other medicalproviders and companies who dobusiness with them are facing bigchanges as a result of new HIPAAregulations.

The new rule, effective March 26, willkeep lawyers busy counseling entities cov-ered by the Health Insurance Portabilityand Accountability Act in the coming

months, said Adam H. Greene, a Wash-ington, D.C., lawyer who formerly workedat the Department of Health and HumanServices and focuses his practice onHIPAA compliance. “Covered entities are going to have to

revisit their policies, their training andtheir business associate agreements,” hesaid. The omnibus regulations are the “most

sweeping changes to the HIPAA Privacyand Security Rules since they were firstimplemented,” HHS Office for CivilRights Director Leon Rodriguez said in a

statement. “These changes not onlygreatly enhance a patient’s privacy rightsand protections, but also strengthen theability of my office to vigorously enforcethe HIPAA privacy and security protec-tions, regardless of whether the informa-tion is being held by a health plan, ahealth care provider, or one of their busi-ness associates.” The 563-page final rule includes modi-

fications to HIPAA’s Privacy, Security, En-forcement and Breach Notification Rules. Here’s a look at the most important

changes.

• Privacy notices need to be updated.

Covered entities will likely need to up-date their privacy notices as a result ofthe final rule, HHS said. Notices must now include a statement

about a patient’s right to restrict the dis-closure of their health information whenthey pay out of pocket for the service. No-tices must also inform patients abouttheir notification rights in the event of adata breach.

• Business associates of businessassociates are covered.

HIPAA applies to “covered entities”(health care providers and health plans,for example) as well as “business associ-ates,” which are businesses that performfunctions on behalf of covered entitiesthat involve the disclosure of protectedhealth information such as billing andphone services, and document or datastorage companies. The final rule extends coverage to

“downstream” business associates, whichmeans that certain subcontractors of busi-ness associates are also covered. The idea was that covered entities and

business associates should not be able tocontract away their HIPAA obligations byfarming out tasks to a subcontractor, saidDavid Harlow, a health care attorney inNewton, Mass., and author of the Health-Blawg. Now, entities that perform such func-

tions as transmitting personal health in-formation (a personal health record ven-dor, for example) are considered to be“business associates” under the rule andsubject to direct liability and the potentialfor agency enforcement action and penal-ties.

Page 8 | © Virginia Lawyers Media, March 2013 Virginia Medical Law Report

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Short talk with med-mal plaintiffnot misconduct, says court

A lawyer who took a telephone callfrom a distraught plaintiff in a medical-malpractice case adversary did not violatethe bar’s ethics rules when she did notimmediately hang up, the Supreme Courtof Virginia ruled last month. The court’s decision clears the record

of Heather E. Zaug of Fairfax, who origi-nally received a “dismissal de minimis”for her phone conversation with the mis-guided plaintiff.. The ruling in Zaug v. Virginia State Bar

emphasizes courtesy over strict adher-ence to ethics rules. Zaug and her partner were defending

a birth injury case when she took a callfrom Yanira Copcutt, one of the plaintiffs.While Zaug denied knowing who thecaller was, she knew it concerned an out-of-town deposition scheduled that day. Copcutt was upset about the deposition

and began to describe the toll the lawsuitwas taking on her family. Zaug sought todisengage, but Copcutt persisted, sayingshe wanted to dismiss the lawsuit. Zaug said she apologized, told Copcutt

she would need to talk to her own lawyerand then hung up. Zaug said the calllasted about 60 seconds. A witness saidthe end came about 30 seconds after Zaugrealized who the caller was. A three-judge panel affirmed a disci-

plinary sanction, which carried no penaltybut would have to be reported as a findingof misconduct. Late last month the Supreme Court re-

versed the judgment, vacated the sanctionimposed and dismissed the charge of mis-conduct. The bar failed to prove two requisite

factual elements, the court said. To violatethe rule against communication with arepresented opposing party, the lawyermust know who she is talking to and the

communication must involve the subjectof the case at hand. While Zaug admitted she knew the call

was about the case, the record failed toshow when she became aware that thecaller was a represented person, the courtsaid. The record from the disciplinary hear-

ings “does not answer the question ofwhen Zaug knew both (a) the identity ofthe party with whom she was communi-cating and (b) the subjection of the com-munication,” the court said. Argument turned on the meaning of

the word “immediately.” The court agreedwith Zaug that “immediately” does notmean “instantaneously” and the rule doesnot require lawyers to hang up on repre-sented parties without regard to courtesy. The court said it would “not construe

the Rule to penalize an attorney for anact that is simultaneously non-maliciousand polite.”

FDA issues guidance on ‘latex-free’ medical supplies

The Food and Drug Administration hasproposed new rules for labeling medicalproducts that are not made with latex. Natural rubber latex, produced by rub-

ber trees and other plant sources, is com-monly used in medical products such asdisposable gloves, but it can cause sensi-tivity or allergic reactions in some pa-tients. Some reactions can lead to respi-ratory distress and anaphylactic shock. In its new draft recommendations, the

FDA urges manufacturers to stop usingthe terms “latex-free” or “does not containnatural rubber latex” on labeling becausethe statement is not scientifically accu-rate. Even products not produced with la-tex as an ingredient, the agency ex-plained, may have trace levels of thesubstance from cross-contamination dur-ing manufacturing or packaging

processes. Instead, the FDA urges manufacturers

to use the term “not made with naturalrubber latex.” “Consumers rely on and expect accu-

rate labeling and product information, es-pecially when they are concerned aboutallergic reactions,” said Dr. WilliamMaisel, deputy director for science in theFDA’s Center for Devices and RadiologicalHealth. “Our recommendations regardingnatural rubber latex provide consistent,scientifically accurate language for healthcare providers, patients and consumerswho want to avoid this material due topossible sensitivity or allergy.”

Patient may sue government forbattery from surgery mishap

A plaintiff may bring a lawsuit againstthe United States alleging medical bat-tery by a Navy doctor acting within thescope of his employment, the U.S.Supreme Court has ruled. The case involves a patient who signed

a consent form to undergo cataract re-moval surgery at a naval hospital, but

claimed that he changed his mind justbefore being anesthetized and revokedthe consent orally. The surgeon performed the surgery

anyway, and the patient suffered compli-cations. He filed suit for negligence and battery

against the surgeon, and the UnitedStates was substituted as the sole defen-dant pursuant to the Gonzalez Act. Thatlaw provides that the federal governmentbe substituted as the sole defendant inany tort suit against military medical per-sonnel for work-related conduct, and thatsuch lawsuits may only be broughtagainst the government under the Fed-eral Tort Claims Act. The FTCA waives sovereign immunity

for tort claims, except for certain inten-tional torts, including battery. But the language of the Gonzalez Act

provides in part: “For purposes of this sec-tion, the [FTCA’s intentional tort exclu-sion] shall not apply to any cause of actionarising out of a negligent or wrongful actor omission in the performance of medical,dental, or related health care functions.” The government moved to dismiss the

claim, citing sovereign immunity againstintentional tort claims. The district courtagreed and granted the motion. The 9thU.S. Circuit Court of Appeals affirmed. But in a unanimous decision, the

Supreme Court reversed, holding that thegovernment’s sovereign immunity was ab-rogated by the Gonzalez Act. The Gonzalez Act’s “operative clause

states, in no uncertain terms, that the in-tentional tort exception to the FTCA,‘shall not apply,’ and [the law’s] introduc-tory clause confines the abrogation[to]medical personnel employed by theagencies listed in the Gonzalez Act,” Jus-tice Ruth Bader Ginsburg wrote in theopinion. The plaintiff ’s claim, therefore,may proceed. The case is Levin v. U.S., No. 11-1351.

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Page 10 | © Virginia Lawyers Media, January 2013 Virginia Medical Law Report

10

Presenting the 2012 CompilationIn this issue, the Virginia Medical Law Report presents its sixth annu-al compendium of “Million Dollar Med-Mal Defense Verdicts.” Theresults are taken from the Verdict & Settlement reports submitted toour sister newspaper, Virginia Lawyers Weekly.

In each of these cases, the amount the plaintiff sued for, or the finaldemand for settlement, was at least $1 million. The recovery in each

was the same – zero, since the defendant prevailed.

To qualify for this survey, the verdict must have been returned by ajury in Virginia.

The 2012 survey features 15 defense verdicts. The cases are pre-sented in the order in which they appeared in Virginia LawyersWeekly.

Million-Dollar Med-Mal Defense Verdicts of 2012

$3 millionType of case: Wrongful death, blood clot following spinalsurgeryCourt: Fairfax Circuit CourtDefense attorneys: Edward A.Gonsalves, Rockville, Md.; Susan L.Mitchell and Marc A. Brown, FairfaxSummary: The 31-year-old decedentwas admitted to the hospital for spinesurgery. Pre-operatively, she was foundto have deep venous thrombosis in herright lower leg. The spine surgeonpostponed the surgery and hospitalistsput decedent on a low intensity Heparin protocol. Thepatient showed improvement, and the surgery was per-formed. Post-operatively, the patient developed significanttachycardia and imaging studies showed a blood clot inher left leg. Decedent died three days after surgery.Plaintiff alleged the defendants should have used a moder-ate intensity Heparin protocol or canceled the scheduled surgery. Defendantsrebutted these claims and presented post-operative hemorrhage as an alterna-tive cause of death.

$3 millionType of case: Wrongful death, complications during heart sur-geryCourt: Fairfax Circuit CourtDefense attorneys: Byron J. Mitchell and Lynne C. Kemp,FredericksburgSummary: The 65-year-old decedent received an implantablecardioverter defibrillator (ICD) after a 2005 heart attack. In2010, he went to the Inova Fairfax Hospital to have the ICDreplaced. The decedent agreed to intravenous general anes-thesia, and was given Propofol at 100 micrograms/kg/minuteduring the procedure. A well-known side effect of Propofol ishypertension. A nurse anesthetist monitored the patient’s vitalsigns.After the surgery, the decedent’s blood pressure plummeted,he coded, and resuscitation was unsuccessful. An autopsyindicated a heart attack, although there was no histologicalevidence.Decedent’s widow sued the nurse anesthetist, alleging that excessive Propofoland prolonged hypotension caused her husband’s death. Defendant claimed theamount of Propofol was appropriate and that nothing she did caused thepatient’s death.

$1.85 millionType of case: Below-the-knee amputation following ankle surgeryCourt: Arlington Circuit CourtDefense attorneys: Byron J. Mitchell andLynne C. Kemp, FredericksburgSummary: The 72-year-old plaintiff under-went a total ankle replacement and spentfive days in in-patient rehabilitation. Whilethere, she had no complications.When the plaintiff returned for her firstpost-op appointment two weeks after thesurgery, her orthopedic surgeon found thewound gangrenous and non-healing.Efforts to save the leg failed, and the plaintiff underwent a below-the-kneeamputation. Plaintiff alleged the defendant rehab physician failed to examine the surgicalwound each day, which led to a delay in diagnosing an ischemic foot. The defen-dant claimed there was no clinical reason to unwrap the surgical dressing. Heargued that the plaintiff had insufficient blood supply to her foot before the sur-gery, the ankle replacement was bound to fail and nothing on the rehab floorchanged the outcome.

$3 millionType of case: Delay in surgery to treat gastric conditionCourt: Roanoke Circuit CourtDefense attorneys: Elizabeth G. Perrowand Daniel T. Sarrell, RoanokeSummary: A 32-year-old patient who was24 weeks pregnant reported to the ER withsevere abdominal pain, cramping and nau-sea. Ultrasound, MRI and other testing wasinconclusive, and it was concluded she didnot require an operation at the time. Threehours later, her condition deteriorated andemergent surgery was performed. Duringthe operation, the surgeon discovered arare colonic volvulus. Approximately two-thirds of the plaintiff’s bowel had to beremoved due to gangrene. At trial, plaintiff alleged that had her surgery been performed three to five hoursearlier, her colonic volvulus would have been discovered sooner and the portionof her bowel could have been saved. The defense contended that the outcomewould have been unchanged, irrespective of the timing of the surgery.

MITCHELL

KEMP

GONSLAVES

MITCHELL

BROWN

KEMPMITCHELLSARRELLPERROW

© Virginia Lawyers Media, January 2013 | Page 11Virginia Medical Law Report

11

$2 millionType of case: Failure to diagnose heel fractureCourt: Norfolk Circuit CourtDefense attorneys: Kimberley A.Satterwhite and Adam B. Shall, VirginiaBeachSummary: The 57-year-old plaintiff wasbrought to the hospital with life-threateninginjuries after being involved in a motorvehicle accident. He underwent numerousradiology studies, including two low-qualityX-rays of his right ankle. Both studieswere read as negative for an ankle frac-ture. Plaintiff used a walker and crutches for several months after his discharge. Ayear and a half later, a podiatrist diagnosed an old fracture in the heel bone, aswell as arthritis. Plaintiff underwent joint fusion surgery.Plaintiff alleged the defendant radiologists failed to identify the heel fracture afterthe accident, and therefore he bore weight on his foot too soon. Defense expertsopined the plaintiff would have received the same treatment had the fracturebeen identified, and the arthritis was due to the accident.

$5 millionCase name: Boehmler v. SearsType of case: Bowel perforation during colon stent procedureCourt: Frederick County Circuit CourtDefense attorneys: Stephen Altman and Marc A. Brown,FairfaxSummary: The 29-year-old plaintiff underwent a colonoscopyperformed by defendant gastroenterologist. During the proce-dure, the defendant ran into a blockage that required surgery.Plaintiff refused to have surgery that would leave her with atemporary colostomy, and elected to have a stent placement. The plaintiff suffered a colon perforation following the stentprocedure. She went on to develop abdominal compartmentsyndrome, sepsis, renal failure, liver failure, respiratory dis-tress and a brain bleed. She spent several weeks in a coma and underwentextensive rehabilitation. Plaintiff claimed the defendant should have ordered X-rays prior to thecolonoscopy. She further alleged she was too distended to undergo stent proce-dure. Defendant claimed the colonoscopy was necessary and that the plaintiffchose the stent procedure after a full discussion of the risks.

SHALLSATTERWHITEBROWN

$2 millionType of case: Complication during hip replacement surgery Court: Prince William Circuit CourtDefense attorneys: Byron J. Mitchell andLynne C. Kemp, FredericksburgSummary: The 59-year-old plaintiff under-went hip replacement surgery with thedefendant orthopedic surgeon. During sur-gery, the defendant inserted a trial stemimplant into the plaintiff’s femur withoutincident. When the defendant attempted toplace the permanent implant, the implantdid not fit correctly and became stuck.After exhausting other methods of removal, the surgeon performed an extendedtrochanteric osteotomy to remove the implant, and re-reamed the plaintiff’sfemur to accommodate a larger implant.Plaintiff claimed the trauma from the eight-hour surgery, osteotomy and largerimplant causes her permanent thigh pain rendering her completely disabled fromworking. Defendant countered that a stuck implant and post-operative thigh pain can hap-pen in the best of hands, and that the plaintiff’s complications had been handledappropriately.

$2 millionCase name: Lancaster v. Wellmont HealthSystem, et al.Type of case: Pressure ulcer developmentpost-surgeryCourt: Wise County Circuit CourtDefense attorneys: James N. Humphreysand Jimmie C. Miller, Kingsport, Tenn.;Elizabeth G. Perrow and Daniel T. Sarrell,RoanokeSummary: While recovering from kneereplacement surgery, the plaintiff com-plained of pain in his buttocks. His condi-tion evolved rapidly and required an emer-gency debridement. The surgeon who per-formed the debridement believed thewound to be a pressure ulcer.Plaintiff claimed that pressure ulcer startedin the operating room due to improperpositioning and padding. The defense claimed the wound was dueto an infarct that cut off the blood supplyto the buttocks and contended the surgical technique met the standard of care.

KEMPMITCHELL

MILLERHUMPHREYS

SARRELLPERROW

$1.75 millionType of case: Injury to bile duct during gallbladder surgeryCourt: Arlington Circuit CourtDefense attorneys: Travis W. Markley andRichard L. Nagle, FairfaxSummary: The 26-year-old plaintiff under-went gall bladder removal. During the sur-gery, the defendant general surgeon mis-took the plaintiff’s common bile duct forthe cystic duct. After recognizing he hadcut the wrong duct, the defendant com-pleted the gall bladder removal andrepaired the injured common bile duct.Over the next year, plaintiff required six procedures to address a stricture at thesite of the common bile duct transection, and subsequently developed pancreati-tis. Plaintiff alleged the defendant breached the standard of care by erroneouslytransecting her common bile duct, and compounded the error by repairing thetransection himself instead of referring the plaintiff to a specialist. Defense contended it was reasonable for the surgeon to perform the repairimmediately rather than subjecting the patient to potential risks of delay andtransfer.

$2 millionType of case: Physical disability following spinal cord surgeryCourt: Roanoke County Circuit CourtDefense attorneys: Kathleen M. McCauleyand Susan L. Kimble, Glen AllenSummary: The 60-year-old plaintiff under-went spinal cord surgery to treat severecervical stenosis, spinal cord impingement,and related gait, balance and sensory prob-lems. Plaintiff had a history of uncontrolleddiabetes and related polyneuropathy, C5radiculopathy and other co-morbidities.Post-operatively, the plaintiff claimed hisright arm was paralyzed, despite hospitaldocumentation to the contrary. It was undisputed that the patient’s physical con-dition continued to deteriorate since the surgery.Plaintiff claimed the defendant neurosurgeon failed to obtain informed consent,performed the incorrect procedure and failed to provide appropriate post-opera-tive care. The defense argued the surgeon performed the appropriate procedure and ade-quately explained the procedure and its risks to the plaintiff prior to operation.Defense further contended that the plaintiff’s pre-existing conditions led to hisdeterioration post-surgery.

NAGLEMARKLEYKIMBLEMCCAULEY

Million-Dollar Med-Mal Defense Verdicts of 2012

Page 12 | © Virginia Lawyers Media, January 2013 Virginia Medical Law Report

12$1.85 millionCase name: LaChance v. Mary Washington HospitalType of case: Wrongful death, sleep apnea complications following surgeryCourt: Fairfax Circuit CourtDefense attorneys: Carlyle R. Wimbish III and Michelle L. Warden, Richmond; MarkM. Jones and Khelin Eure, McLean; Edward J. McNelis III and Coreen Silverman,Richmond; Robert F. Donnelly and Susan Kimble, Glen AllenSummary: The 49-year-old decedent with a history of sleep apnea underwent rotatorcuff surgery. During his recovery at the hospital, decedent was initially placed onmorphine via a PCA pump. Due to increasing pain, he was taken off morphine andplaced on IV Diluadid. Consistent with the hospital’s standing PCA order, the nursediscontinued the use of continuous pulse oximetery.Throughout the night, a nurse check on the decedent at hourly intervals and read hisvital signs after each does of Diluadid. Decedent’s vitals were normal, and around4:00 a.m. he woke up and asked a nurse for water. At 4:50 a.m., a CNA arrived totake routine vital signs. She found the decedent in full cardiopulmonary arrest. Hesuffered irreversible brain damage and died the following day.Plaintiff alleged the defendants were negligent in failing to monitor the decedent con-tinuously during his recovery, due to his history of sleep apnea.

$1.5 millionType of case: Failure to diagnose and treat necrotizing fasciitisCourt: Winchester Circuit CourtDefense attorneys: Richard L. Nagle andTravis W. Markley, FairfaxSummary: The 22-year-old, 350-poundplaintiff underwent surgery for a brokentibia and fibula. Despite findings of blackeschar and foul-smelling drainage at thewound site, the plaintiff was dischargedunder the supervision of a home healthcare nurse. A week and a half later, awound care specialist noted a substantialamount of necrotic tissue. Plaintiff under-went a series of emergency debridements, received a skin graft and spent 21months in outpatient care. Plaintiff alleged defendant orthopedic surgeon failed to take appropriate steps todiagnose and treat necrotizing fasciitis, thus requiring him to undergo moreaggressive treatment. Defense argued that the surgeon met the standard of care by involving woundcare specialists at all appropriate junctures, and further contended that the plain-tiff did not develop necrotizing fasciitis under the surgeon’s care.

WARDENWIMBISH EUREJONES

SILVERMANMCNELIS KIMBLEDONNELLY

MARKLEYNAGLE

$1.7 millionType of case: Colon perforation following colonoscopyCourt: Shenandoah Count Circuit CourtDefense attorneys: Charles Y. Sipe,Charlottesville; S. Virginia Bondurant,RichmondSummary: Plaintiff, a female in her mid-50s, went for a colon screening, but theprocedure was terminated due to fear ofperforation. A barium enema revealed sig-moid diverticulosis and retained stool. Two days later, plaintiff presented to theER with complaints of constipation andright shoulder pain. The defendant general surgeon treated the plaintiff with soapsuds enemas and oral cathartics; however, her pain worsened and a CT revealedretained barium in the peritoneal cavity. Exploratory surgery uncovered a perfora-tion of the sigmoid colon. After surgery to resect the colon and remove the bari-um, plaintiff developed sepsis, pulmonary edema and pneumonia. Plaintiff alleged the defendant’s attempts to treat the impaction with enemas andcathartics led to the perforation. Defense claimed a CT prior to the initial treat-ment would have been inconclusive.

$1.7 millionType of case: Birth injury, failure to perform timely c-sectionCourt: Washington County Circuit CourtDefense attorneys: Walter H. Peake III, Roanoke; Scott M.Stevenson and Stacey H. Stevenson, Charlotte, N.C.Summary: During her mother’s labor, theinfant plaintiff’s fetal heart tracings werenon-reassuring. Signs of trouble began at10:30 p.m. and continued until the babywas delivered via emergency C-section at12:37 a.m. The infant suffered a profoundanoxic brain injury and cerebral palsy. Plaintiff contended the defendant OB/GYNfailed to appropriately monitor her moth-er’s labor and alleged that, had she beendelivered sooner, she would have sus-tained no permanent injury.The defense countered that the fetal heart tracings did notshow evidence of fetal hypoxia, and that her brain injury likelywas caused by a fetal and/or maternal condition such as viralencephalopathy.

BONDURANTSIPE

$3.5 millionType of case: Loss of bladder function following hysterectomyCourt: Richmond Circuit CourtDefense attorneys: Rodney K. Adams andShyrell A. Reed, RichmondSummary: The 52-year-old plaintiff con-sented to a robotic supracervical hysterec-tomy, cervical sacopexy with Gynemesh,retropubic sling with align and cystoscopy.Prior to the surgery, the defendant hadinformed the plaintiff of the associatedrisks, one of which was urinary retention.After undergoing the procedure, the plain-tiff experienced difficulty urinating and urinary tract infection symptoms. Thedefendant referred her to a specialist within his own medical group, who recom-mended indefinite catheterization. She ultimately treated with another gynecologist, who performed a “sling revi-sion” cystoscopy and removed all the mesh he could find. Plaintiff contended the defendant was negligent in not offering further surgery toimprove her condition and in not obtaining a second opinion outside of his ownmedical group. Defense experts were adamant the specialist’s treatment planwas standard and reasonable.

REEDADAMS

Million-Dollar Med-Mal Defense Verdicts of 2012

STEVENSON

PEAKE

STEVENSON

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An entity may still be coveredeven if it doesn’t have a businessassociate agreement; the ruleprovides that any subcontractorthat “creates, receives, maintainsor transmits personal health in-formation” on behalf of a busi-ness associate is a business as-sociate, Greene said. The change “is a huge exten-

sion of how many entitiesHIPAA applies to directly,” headded. It may also cause covered en-

tities and existing business as-sociates alike “to re-think theirbusiness associates approach,”Greene said. For example, a sub-contractor not previously cov-ered may not be equipped to fol-low the HIPAA regulations anda covered entity may need to finda new IT vendor, for example, orface vicarious liability.

• Breach notification standard changes.

Covered entities will face asignificant challenge with thenew data breach notification re-quirements, said Amy K. Fehn,a Royal Oak, Mich., lawyer whoadvises physicians and healthcare organizations. Currently, a breach must be

reported to a patient if it posesa “significant risk of financial,reputational, or other harm tothe individual.” Under the new rule, if infor-

mation is compromised, a databreach is presumed unless thereis “a low probability” that pro-tected health information wascompromised. That means that businesses

must treat nearly all data com-promises as data breaches, re-quiring them to notify individu-als and/or state authoritiesdepending on the size of the databreach. Practically speaking, the

change means that morebreaches will be reported, saidGreene. Factors to consider when eval-

uating whether a breach mustbe reported include the natureand extent of information in-volved, the person to whom thedata was disclosed, whether heor she actually viewed it andwhether the risk has been miti-gated.

• Patients have a right to acopy of their records.

Under the rule, patients havethe right to a copy of their healthrecords and may specify the formin which they want to receive thecopy, including electronic copies.While this right existed previ-ously, the rule changed the de-fault form of production from ahard copy to an electronic copywhen the information is main-tained electronically. Patients may also designate in

writing to have their recordssent to a third party. Covered entities may charge

a “reasonable” fee for their ef-forts, Harlow said, but thecharge cannot exceed labor andsupply costs. A time limit on pro-viding patients with theirrecords was also imposed; all pa-per and electronic personalhealth information must begiven within 30 days of the pa-tient’s request.

• Patients who pay out ofpocket can request non-disclosure to their healthplan.

The rule allows patients whopay in full out of pocket to re-quest that the health care

provider not disclose informationabout the service to their healthplan. “Now covered entities must

segregate patient information,which can be pretty challenging,especially if there are subse-quent related services,” Greenesaid. A patient who seeks to keep a

diabetes test confidential mayrequire future health care serv-ices related to diabetes care, forexample, and the patient musteither pay for the subsequentservices out of pocket or theprovider is entitled to disclosethe services to obtain appropri-ate payment from a health plan. “This is a complicated affair

for purposes of both record-keep-ing and potential future pay-ments,” Greene cautioned.

• Providers may use morepatient information to focus fundraising.

Providers received good newson the fundraising front becausethey may now use more types ofpatient information to targettheir requests. “A hospital raising money for

a new cancer center may nowlook at which patients were on-cology patients and target there,”Greene said. “It can also look atoutcomes and not send fundrais-ing requests to people who hadpoor outcomes and it can look athealth insurance and skip theMedicaid population as fairlyunlikely to be donating.” Previously, covered entities

could only use information suchas the dates care was provided

and demographic information.

• Marketing by covered entities is limited.

Covered entities are now lim-ited in their marketing if theyreceive remuneration for theirefforts, Greene said.

Liability and enforcement The final rule takes effect on

March 26 with compliance re-quired by Sept. 23. Both civil and criminal penal-

ties apply to covered entities andbusiness associates. For civil penalties, fines are

based upon increasing levels ofculpability ranging from $100 ifa covered entity establishes thatit did not know it violated therule up to $50,000 for willfulneglect resulting in a violation,

with a cap set at $1.5 million percalendar year for multiple viola-tions of an identical provision. Penalties could significantly

exceed $1.5 million per year fora covered entity where there areviolations of multiple provisions,Greene said. He said OCR has indicated

that it will focus on investigatingand bringing penalties for non-compliance due to willful neg-lect. But given the time it takes to

conduct investigations, it willtake a few years to see the effectof the new rule, he noted. With a round of audits con-

ducted in 2012, “we’ve alreadyseen heighted OCR enforce-ment” of HIPAA, Greene said. The release of the final rule

“will only increase enforcementefforts.”

HIPAA� continued from PAGE 8

the heart sac, and instructedto take an over-the-counteranti-inflammatory medicationsuch as Advil. The chest pain and shortness

of breath continued for thenext two months, and Dentonmade four trips to his familymedicine practice. Because thepractice was also part of theRiverside network, nurse prac-titioners continued to treatDenton for pericarditis, basedon Dr. Chu’s cath report. On April 9, 2010, Denton suf-

fered a massive heart attack. During emergency treat-

ment, doctors discovered acomplete blockage of Denton’sleft anterior descending (LAD)artery. The type of resultingheart attack is dubiously nick-named the “widow maker,” ac-cording to Konvicka.Despite the dire prognosis,

Denton pulled through, but hassince undergone eight cardiaccaths and coronary bypass sur-gery. He is currently in StageII or III heart failure, and haslost over half of his heart func-tion. While he still appears to be

a normal, healthy adult, Den-ton must follow a strict dietand avoid any strenuous activ-ity. It’s a significant lifestylechange for the once-avid golferand water skiier who coached

his children’s sports teams,Konvicka said. Denton, who took a hands-

on approach to running hisbusiness prior to his heart at-tack, can no longer lift heavyobjects, work in the heat or en-dure any sort of stress, accord-ing to Konvicka. He becomeswinded after walking up aflight of stairs. While adapting to these new

restrictions, Denton and hiswife were alarmed to learnthat his heart attack couldhave been prevented. The doc-tor who treated Denton’s heartattack later reviewed Dr. Chu’scardiac cath, and noted a 70percent or greater blockage inthe LAD artery had been pres-ent during the February test.Konvicka said that, had the

blockage been diagnosed by Dr.Chu, placement of a singlestent and a course of medica-tion would have allowed Den-ton to live a normal, healthylife with no restrictions. Denton filed suit in Hamp-

ton Circuit Court against Dr.Chu, the Cardiovascular Cen-ter of Hampton Roads andRiverside Physician Services. Dr. Chu reportedly consented

to settlement, and the casewent to mediation shortly be-fore trial. However, negotia-tions fell apart when the hos-pital’s insurer refused to offermore than $1.1 million. Konvicka said the case was

his first jury trial in HamptonCircuit Court. From talking toother attorneys who practiced

in the area, he understood thevenue to be similar to nearbyNewport News – not known tobe conservative, but not espe-cially plaintiff-friendly either. During the four-day trial,

plaintiff ’s experts testified thatDenton will require a hearttransplant within the next fiveto six years, and that even witha successful transplant, hewould only have a 50 percentchance of living another 10years. Experts showed the jury a

number of medical illustra-tions, animations and other vi-suals, including the actual cathfilm taken two months prior tothe heart attack.“The jury could clearly, dis-

tinctly see the blockage withtheir own eyes,” Konvicka said.According to Konvicka, the

defense argued that the block-age to Denton’s artery was clin-ically insignificant and did notrequire treatment at the time.They claimed the heart attackwas due to a sudden, unex-plained plaque rupture. The defendants were repre-

sented by Richmond attorneyRobert Donnelly, who stands bydefense experts’ testimony thatDr. Chu made an accurate in-terpretation of the test results.“Anyone who looks at angiog-

raphy knowing that the patientsuffered a heart attack willmore intently look for some-thing that is suspicious as a le-sion,” Donnelly said in an e-mail statement. “To overcomethis kind of retrospective bias,

we sent seven separate studiesinvolving seven different pa-tients to an interventional car-diologist in Boston with allnames and identifying infor-mation redacted. He did notknow which study was at issuein the case or what the patientoutcomes were. He read theplaintiff ’s study as a normalangiogram without significantcoronary artery disease, just asDr. Chu did.The jury deliberated for

three and a half hours beforereturning a $25 million verdict,plus interest of $4,495,205. “The jury believed [Denton]

was entitled to all his past andfuture medical bills,” said Kon-vicka, noting that the interestalone was twice the medicalmalpractice cap. But Denton, whose total

medical expenses are esti-mated to reach $3.7 million,will likely only see $2 millionof the award due to the existinglaw.Konvicka has asked the

court to allow him time to re-search a possible constitutionalchallenge to Virginia’s med malcap. He hopes to bring a senseof justice for his client, and forthe jury who deliberated on theaward.“It’s clear the jury gave this

verdict a lot of thought,” Kon-vicka said. “I think they wouldbe disappointed to know theiraward was going to be reducedto a tenth of what they felt wasappropriate.”

25M� continued from PAGE 1

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tra $17,521 for the PA’s services duringback surgery.While providers battle for additional

payment from employers’ insurance com-panies, and insurance companies struggleto hold the line on medical payment in-creases, a bill to impose a Medicare-typefee schedule for workers’ compensationmedical care met a quick death in the2013 General Assembly. Legislators urged the stakeholders to

look for ways to reduce tension and avoidthe need for a fee schedule in Virginia,said one lawyer who followed the issue.“There’s a lot going on. These doctors

are trying to level the playing field,” saidZenobia J. Peoples of Richmond, who hasrepresented providers seeking additionalpayment.Lawyers such as Peoples welcomed the

Court of Appeals decision, saying it hasbecome commonplace for insurance com-panies to use passive enrollment to movedoctors into cut-rate provider networks. The experience of orthopedist Martin

R. Coleman of Newport News is typical,lawyers said. Coleman had a deal withAetna Health to treat insured patients.The contract provided that Colemanwould be enrolled in new payment plansif he did not opt out after being providednotice.Aetna said it provided Coleman with

notice of enrollment in a workers’ com-pensation program in 2005. Coleman treated an injured worker,

Garry Messer, in 2007. He sent a bill for$13,131, but he accepted payment underthe plan for just $1,288.In 2011, Coleman challenged the re-

duction and asked for payment of the dif-ference. A deputy commissioner and thefull commission denied his claim.The insurer provided no evidence that

Aetna used the contract’s prescribedmethods of sending the enrollment notice,

but those details of delivery were unim-portant, according to the deputy commis-sioner. He found Coleman waived the for-malities because he accepted the reducedpayments under the plan and did notcomplain until he filed the underpaymentclaim four years later.The full commission agreed, noting

Coleman failed to introduce any evidencehimself on the notice issue.The three-judge Court of Appeals panel

took a stricter approach as to evidence ofnotice. The insurance company “failed topresent any evidence whatsoever that theinvitation letter was sent” using the pre-scribed methods, wrote Judge Robert J.Humphreys for the panel in Orthopaedicand Spine Center v. Muller Martini Manf.Corp. (VLW 013-7-050).The insurer’s waiver argument also

foundered, the court held, because thedoctor’s contract specifically requiredwaivers to be in writing. The insurancecompany produced only two check stubsto show the doctor’s intent to waive thenotice formalities, “clearly not sufficientto constitute a waiver” under the con-tract, according to the court.Mark C. Shuford of Richmond, who rep-

resented Coleman, said the court appliedbasic contract law principles. “You don’toften get in these workers’ compensationcases issues that rise to the level of basichornbook contract law,” he said.Shuford said the decision should have

a broad impact. “There are literally tensof millions of dollars of under-reimburse-ments to physicians because of the pre-sumption they previously were enrolledin the workers’ comp network,” he said. Richmond attorney Bradley P. Marrs,

who often represents medical providersseeking additional payment for treatingcomp claimants, said doctors have reasonto be wary of enrollment in special plans.“You’ve got to get out of these networksif you’re a medical provider. It’s a baddeal,” he said.Marrs represented a medical provider

seeking additional payment in the Work-ers’ Compensation Commission opinion,Hill v. VDOT – NOVA Dist. Mgmt.

Dr. Michael Hasz with the VirginiaSpine Institute of Reston performed backsurgery in 2008 on claimant Brian Hill,aided by physician’s assistant TracyPerkins Boller.The medical practice billed for the PA’s

work at 95 percent of the charge for thesurgeon. The total bill for the PA was$20,968. The employer’s insurance com-pany paid only $3,447, claiming the PAcharges exceeded the usual, customaryand reasonable rate for the community.When the provider filed a claim for the

unpaid balance, the insurance companyhired neurosurgeon Donald G. Hope ofReston to review the charges. He testifiedat a deposition that 20 percent was theupper limit of charges for physician’s as-sistants, based on his inquiries of othermedical practices in the area. Hope didnot have statistical data samples to sup-port his conclusion.Dr. Hasz argued the insurer’s evidence

fell short of proving that his rates ex-ceeded the prevailing community rate. Adeputy commissioner disagreed andcapped the PA’s charge at 20 percent.On appeal, the commission acknowl-

edged the prevailing rate usually is es-tablished through a statistical analysisby a statistical expert. “However, we havenever held that this was the only mannerin which the prevailing community ratecould be ascertained,” wrote Commis-sioner Roger L. Williams for the panel.The commission said Hope showed suf-

ficient knowledge of PA charges in thecommunity for similar procedures and“fully explained the basis for his knowl-edge of these charges.”The commission rejected the provider’s

claim that Hope’s deposition should havebeen excluded because the insurer didnot provide a full expert witness disclo-sure before the deposition. “We simply donot believe that the medical provider wassomehow ‘ambushed’ by Dr. Hope’s testi-mony regarding the issue,” Williamswrote.The decision is important, Marrs said,

because Dr. Hope is often called on to ad-dress the appropriateness of doctors’

charges. The WCC opinion said Hope iscontacted by “multiple law firms” per yearfor review of CPT coding issues.For medical providers, finding a doctor

to take the time to testify about billingrates is difficult, Marrs said, so such med-ical expert testimony on charges may gounchallenged.

Statutory reform?As insurance companies have tried to

keep a lid on costs and doctors have be-come more aggressive with underpay-ment claims, the Virginia Chamber ofCommerce joined other stakeholders in-cluding medical providers to push for re-forms. Even the Chamber acknowledged, how-

ever, that Virginia’s cost per worker islower than many states and premiumsare 32 percent below the national me-dian. When House Bill 1612 – to set up aVirginia fee schedule – was introduced,opposition came from lawyers like Peo-ples, who has practiced workers’ compen-sation law for more than 20 years.“We really don’t have a crisis here to

warrant a fee schedule,” she said. Sheclaimed the low payment rates under afee schedule could cause doctors to turnaway workers’ compensation patients.The workers’ compensation reform meas-ures never made it out of the House Com-merce and Labor Committee.A special subcommittee was formed to

meet outside of the session to work to-ward a consensus for reforms.With the urging of lawmakers, Peoples

said, the stakeholders may try to craftsome time limits on the business of pay-ing doctors to treat injured workers. Rightnow, she said, the insurance companiescan make doctors wait for a year or moreto get paid, while doctors can wait foryears before filing an underpaymentclaim.“I believe the legislators would like to

see both sides work out something every-body can agree on next session so a feeschedule would not be necessary,” Peoplessaid. “There needs to be a balance for bothsides,” she added.

Comp� continued from PAGE 1

Oliver said.When mental health patients get on

board with advance directives, their out-look improves, Oliver said. They are moreengaged with their medical care and therate of mental health crises decreases byhalf, he said.Oliver said he saw the need during his

30 years in the city attorney’s office inChesapeake. Working with the city’s adultprotective services unit, he sometimes hadto tell families the only way to get a rela-tive suffering from dementia into a hospi-tal was to go through the involuntary com-mitment process.An advance directive could have avoided

that time-consuming, adversarial process,he said. “This is a way to make things eas-ier for our families and ourselves,” he said.The difficulty is bringing the tool to

those who need it. “Right now, there is nomodel. How do you reach out and help peo-ple complete their advance directiveforms?” Oliver said.Bonnie, who chaired the mental health

reform commission appointed by the lateChief Justice Leroy Rountree Hassell Sr.,proposed a network of lawyers to close thegap. Attorneys would directly help patientsexecute advance directives, but they alsowould supervise non-lawyers, partner withsupport groups to promote the idea of ad-vance directives, recruit other lawyers, andcreate a battery of resources.In October, more than 40 lawyers at-

tended a continuing legal education semi-nar in Richmond focused on lawyers will-ing to volunteer. Among those attendingwas Gregory E. Lucyk, the chief staff at-torney of the Supreme Court of Virginia.Lucyk – now retired – is an enthusiastic

convert to the cause.

He is not the only one. Among the par-ticipating organizations and agencies:• Virginia Department of Behavioral

Health and Developmental Services• Virginia Hospital and Healthcare As-

sociation• Virginia Association of Community

Services Boards• Mental Health America of Virginia• National Alliance on Mental Illness

(NAMI) Virginia• Virginia Organization of Consumers

Asserting Leadership (VOCAL)The committee also consults with the

federally funded Virginia Office of Protec-tion and Advocacy. The group is looking to partner with bar

organizations to spreadthe word, provide train-ing, solicit volunteers andprovide professional assis-tance to people concernedabout their care.Helping to send the

message out is Nathan A.Kottkamp, creator andchairperson of NationalHealthcare Decisions Day,which promotes the use ofadvance directives foreveryone. The Richmond

lawyer started the idea in Virginia andtook it nationwide, enlisting help from na-tional groups including the American BarAssociation and the American Medical As-sociation.The project is coming up on its sixth

year of promoting opportunities for peopleto complete a healthcare power of attorneyand/or living will.“We’ve touched millions of people with

this event thus far,” Kottkamp said. “We’vegot a long way to go before we’re at 100percent of the hospitals in the country. Andthen, after that, we still need to add allthe nursing homes, the hospices, the dial-ysis centers … every law firm in the coun-try. We’ve got a lot to go, but we’re makinggood progress,” he said.Many people worry about healthcare de-

cisions only later in life or when facing se-rious illness, but Kottkamp notes that twowidely known cases of conflict over medicaldecision making – those of Nancy Cruzanand Terri Schiavo – involved patients intheir twenties.“The reality is any of us could have a

catastrophic medical event at any point,”he said.While efforts coalesce to promote the use

of advance directives, Virginia has joineda movement to make them more accessibleto doctors and other health care providers.In 2011, Virginia launched a statewide Ad-vance Health Care Directive Registry. “Virginia is unique among states that

offer this kind of service in that there isno cost to taxpayers or registry users,” saidSecretary of Health and Human ResourcesWilliam Hazel Jr. at the launch.The state’s advance directives registry

is at www.virginiaregistry.org.The website for information about the

advance directives initiative is www.vir-giniaadvancedirectives.org.

Directive� continued from PAGE 3

In 2003, the Supreme Court reverseda Newport News trial judge and said twopediatricians who left a group practiceto set up their own shop could sue theirformer practice group for telling peoplethe pediatricians had “abandoned theirpatients” and there were “concerns abouttheir competence.” Such statements were not just opinion,

but provable, or not, as fact, accordingto the Supreme Court opinion in Fustev. Riverside Healthcare Ass’n. On re-mand, the defendants won summaryjudgment based on the Health CareQuality Improvement Act of 1986.The new case, Cashion v. Smith

(Record No. 121797), gives the court an-other chance to explore the boundary be-tween fact and opinion when it comes todoctors’ reputations.Cashion will have a chance to argue a

jury should have considered not only the“euthanasia” statement, but the otherstatements Smith acknowledged mak-ing, including a statement that, “You de-termined from the beginning that hewasn’t going to make it and purposefullydidn’t resuscitate him.”According to Smith’s opposition to the

appeal, he followed up his on-the-scenecomments about Cashion with a writtencomplaint to hospital personnel, report-ing that Cashion had several times toldstaff working on the patient that theirefforts were futile. Smith also said Cashion wanted to de-

clare the patient dead based on a radialarterial line reading, despite current

EKG activity and a palpable carotid ar-tery. Cashion said he reversed that callonce he found the patient’s pulse. Smith complained that Cashion re-

fused to administer an anticoagulant atSmith’s orders, and a resident had togive the drug. He also said Cashionfailed to give the patient all availableblood products, such as platelets andplasma, because Cashion wanted to pre-serve these life-saving resources for oth-ers. Cashion’s petition for appeal says that

after he filed his defamation suit, Smithadmitted his statements were false, buthe has not apologized.Cashion is represented by Monica Tay-

lor Monday and Smith is represented byPaul Beers. Agnis Chakravorty repre-sents Carilion Medical Center. Oral ar-gument in the Supreme Court will bescheduled later this year.

Defamation� continued from PAGE 1

© Virginia Lawyers Media, January 2013 | Page 15Virginia Medical Law Report

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Rod Dillman protects his clients, advances their goals, andworks hard to establish the strongest possible case for them.

• Mul,ple million dollar defense verdicts reported in Virginia Medical Law Reports• Recognized as a Virginia Super Lawyer in Medical Malprac,ce Defense• Advises healthcare clients on Risk Management and other Healthcare Law issues

Throughout Virginia, Hancock, Daniel, Johnson & Nagle defendshealthcare providers against claims of medical malprac�ce.

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THE CLAIMS LISTED BELOW ARE BASED ON DATA PUBLISHED IN VIRGINIA MEDICAL LAW REPORT.CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE AND DO NOT

GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY THE LAWYER.

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