Articles Posted in Medical Malpractice

Earlier this year, an appellate court issued a written opinion in a Virginia medical malpractice case requiring the court to determine if the plaintiff presented sufficient evidence that the defendant’s alleged negligence was the cause of the plaintiff’s injuries. The court considered the evidence presented by the plaintiff, and it ultimately determined that there was a gap in testimony. As a result, the jury verdict rendered in the plaintiff’s favor was reversed.

SurgeryThe Facts of the Case

The plaintiff was a patient of the defendant doctor and arranged to have a laparoscopic hysterectomy performed. The defendant went over the risks of the procedure, and the plaintiff acknowledged the risks and opted to proceed nonetheless.

As a part of the procedure, the defendant needed to insert a small tube into the plaintiff’s abdomen. The first time the defendant attempted to do this, she realized it was too close to one of the organs in the abdomen, so she removed the tube and tried to insert it in a different location.

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In Virginia medical malpractice cases, the issues presented to the jury are often of a complex nature that may be beyond the understanding of the average juror. For that reason, Virginia lawmakers passed Virginia Code section 8.02-20.1, which outlines when expert witness testimony is required.

GavelThe idea is that in cases in which there are complex issues beyond the understanding of the average juror, an expert in the field can view the facts and present their opinion. Unlike the opinion of lay witnesses, an expert’s opinion can be used by the jury as substantive evidence.

Under section 8.02-20.1, an affidavit of support from a qualifying expert is required in all medical malpractice cases. However, “if the alleged act of negligence clearly lies within the range of the jury’s common knowledge and experience,” an expert is not needed. This leaves two questions for prospective medical malpractice plaintiffs. First, is a claim truly one of medical malpractice? And second, if it is a medical malpractice claim, are the issues presented within the range of a jury’s common knowledge? A recent appellate opinion wrestles with these issues.

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Medical malpractice cases are often complex, and in most instances, they require the testimony of at least one expert witness to explain certain medical or scientific issues to the jury. In an effort to ensure that only meritorious cases are filed and heard by the court, Virginia law makers passed a rule requiring Virginia medical malpractice plaintiffs to obtain a certification from an expert stating that the plaintiff’s case has merit.

Doctor's ComputerUnder section 8.01-20.1 of the Code of Virginia, the expert certification is required in all medical malpractice cases unless “the alleged act of negligence clearly lies within the range of the jury’s common knowledge and experience.” When a certification is required, it must state that the care provided by the named defendant “deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed.”

A plaintiff’s failure to include an expert’s certification can result in the dismissal of an otherwise meritorious case. A recent case served as a major warning to one medical malpractice plaintiff, whose case was nearly dismissed with prejudice for the failure to file the necessary expert affidavit.

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Doctors and other medical professionals are held to a high standard when it comes to the level of care that is expected of them. Indeed, when a medical professional fails to live up to the standards to which society holds them, they may be held liable for any resulting injuries though a Virginia medical malpractice lawsuit. However, proving a case of medical malpractice requires knowledge of both the science behind the medicine and also the law that applies to medical malpractice cases.

Doctor's CoatOne of the most important decisions any medical malpractice plaintiff must make is in the selection of their expert witnesses. Since most judges and jurors do not have advanced medical knowledge, courts often require plaintiffs to present an expert witness who can explain certain complex issues to the jury and offer their expert opinion. Of course, expert witnesses are also held to a high standard and must be accepted by the court before their testimony will be admissible.

A recent case illustrates the difficulties one plaintiff had when attempting to establish the elements of her medical malpractice case after the court determined that her expert witness’ testimony was not admissible.

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When hearing Virginia medical malpractice cases, courts enforce a strict set of procedural rules to ensure that cases proceed through the system in an orderly and efficient manner. While perhaps most cases are resolved without significant litigation over one party’s compliance with a procedural rule, occasionally the question of whether a party complied with a rule is the focus of significant litigation.

StopwatchVirginia procedural rules are very important because a party’s failure to follow the rules may result in serious sanctions, including the dismissal of a case or a judgment entered in favor of the opposing party. A recent appellate decision in a medical malpractice case illustrates how one plaintiff’s failure to diligently pursue her case resulted in her case’s dismissal.

The Facts of the Case

The plaintiff claimed that the defendant hospital was responsible for an injury she received while being treated at the hospital in 2003. In 2005, the plaintiff filed her first medical malpractice case against the hospital, but, since she failed to attached a required expert affidavit, the plaintiff voluntarily withdrew her case in 2007 with the intention of obtaining the affidavit and refiling the case.

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When a patient suffers an injury due to the negligence of a medical professional, the patient may be entitled to compensation for their injuries through a Virginia medical malpractice lawsuit. However, as with other personal injury cases, medical malpractice cases must be filed within a certain amount of time.

White CoatThe time limits for medical malpractice cases in Virginia are outlined in Code of Virginia section 8.01-243. Under section 8.01-243, a plaintiff generally has two years from the date of the alleged negligent act to file a claim of medical malpractice. However, in some cases, that time frame can be extended. For example, in cases in which a foreign object is left in a patient’s body or the defendant is alleged to have engaged in any activity to prevent the plaintiff from discovering the alleged negligence of the defendant, the statute of limitations is extended until one year after the alleged act of negligence was discovered.

In certain cases in which the alleged act of negligence involved a “negligent failure to diagnose a malignant tumor,” the filing deadline is extended to one year after a medical professional properly diagnoses the tumor or cancer. A recent case out of Florida illustrates this principle.

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Virginia medical malpractice cases are often won or lost on the issue of causation. While legal causation is an extremely complex concept, the basic idea behind it is simple:  did the defendant’s actions cause the plaintiff’s injuries? Earlier this month, the U.S. Court of Appeals for the Eighth Circuit issued a written opinion in a medical malpractice case requiring the court to determine if the lower court was correct to dismiss the plaintiff’s case for a failure to establish causation. Ultimately, the court concluded that the plaintiff’s causation witnesses failed to meet the threshold requirement necessary to give their testimony weight. As a result, the lower court’s decision to dismiss the plaintiff’s case was affirmed.

SurgeonThe Facts of the Case

The plaintiff was the surviving spouse of a man who died as a result of liver cancer. The plaintiff’s husband was initially seen by the Veteran’s Administration (VA) hospital in 2011 for elevated liver function. A CT scan was conducted, and the results were interpreted by a VA doctor. The doctor noted that the patient had cirrhosis of the liver, but no additional findings were noted.

Two years later, the patient was hospitalized, complaining of painful urination, incontinence, slurred speech, and confusion. A second CT scan was ordered, and this time the results showed a suspicious mass that turned out to be cancerous. Since the patient was too weak, he could not receive medical treatment and was placed on palliative care until he passed away a short time later.

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Last month, a Virginia appellate court issued a written opinion in a personal injury case illustrating how diligent and precise Virginia medical malpractice plaintiffs must be when filing their complaint. The case required the court to determine if the jury’s verdict in favor of the plaintiff should be upheld when the trial judge instructed the jury on medical battery despite the fact that the plaintiff’s complaint did not mention medical battery. Ultimately, the court concluded that the plaintiff should have added language to include a medical battery claim, and her failure to do so prevented the trial judge from instructing the jury on the issue.

Surgeon's ToolsThe Facts of the Case

The plaintiff was a breast cancer survivor who required follow-up surgery. The plaintiff claimed that she had originally discussed having surgery on both breasts but ultimately decided to only proceed with surgery on her right breast.

The defendant’s version of the events leading up to the surgery were different from the plaintiff’s version. The defendant claimed that the plaintiff never indicated to him that she wished to have him operate on only her right breast. Needless to say, the defendant performed surgery on both breasts, and the plaintiff suffered serious complications related to her left breast.

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An issue that often comes up in Virginia medical malpractice cases is whether the treating doctor adequately warned the patient of the risks associated with a given course of treatment. Earlier this month, an Oklahoma appellate court issued an interesting opinion in a medical malpractice case involving the information that a physician is required to provide to a patient in order to obtain informed consent prior to a medical procedure. Ultimately, the court concluded that a physician must inform a patient of all non-doctor assistants who will be performing significant portions of the procedure in order to obtain the patient’s informed consent.

Operating RoomInformed Consent

Before a patient undergoes any non-emergency medical treatment, the treating physician must obtain that patient’s consent. Over the years, courts have consistently held that a patient must have a certain level of knowledge as to what they are consenting to undergo in order for a patient’s consent to be valid. This is called informed consent. When a physician fails to obtain a patient’s informed consent to perform a medical procedure, and something goes wrong during the procedure, resulting in an injury to the patient, the doctor may be liable under a medical battery theory of liability.

The Facts of the Case

The plaintiff was a patient of the defendant gynecologist. In 2010, the defendant recommended that the plaintiff undergo a total laparoscopic hysterectomy, and the plaintiff agreed. Prior to the surgery, the plaintiff was presented with a consent form that stated that the plaintiff authorizes the defendant and “whomever he/she (they) may designate as his/her assistants, to perform the following operative or diagnostic procedure(s): total laparoscopic hysterectomy.” The informed consent form contained an area designated to list the names of any assistants who would be participating in the procedure; however, that area was left blank.

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Earlier this month, a state supreme court issued an interesting opinion in a medical malpractice case highlighting the importance of complying with the rules of pre-trial discovery. The case presented the court with the opportunity to determine whether the testimony of a witness should be allowed when the plaintiff plans on calling the witness but fails to identify the witness during pre-trial discovery. Ultimately, the court concluded that the trial court was proper in excluding the testimony and affirmed the defense verdict that was delivered by the jury.

CourtroomThe Facts of the Case

The plaintiff was suffering from neck and back pain and began seeking treatment from the defendant doctor in 2004. In 2009, the doctor diagnosed the plaintiff with degenerative disc disease and recommended that the plaintiff undergo surgery.

The surgery was performed by the defendant, and afterwards the plaintiff suffered from several complications, requiring a subsequent surgery. After the subsequent surgery, the plaintiff was paralyzed from the waist down. He then filed a medical malpractice lawsuit against the defendant doctor for the doctor’s failure to properly treat him during the second surgery.

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