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MEDICAL L AW R EPORT

V I R G I N I A

LEGAL NEWS FOR THE MEDICAL COMMUNITY Volume 13, Number 7 MARCH 2016

Page 3 | Medical Leave

Employee gets double damagesin medical leave case

Page 3 | Suing Doctors

When doctors bring suit tochallenge decisions of insurers

Page 5 | Digitial Medicine

Telemedicine in Virginia: An Update

BY PETER VIETH

A patient’s own behavior – al-legedly misleading a doctorabout his medication history –can be used to defeat a medi-cal malpractice claim, a Virginiajudge has ruled.

Even though the Supreme Court of

Virginia has rejected theories of con-

tributory negligence in medical negli-

gence cases seven times before, a Roa-

noke judge ruled March 7 the defense

was properly used to defeat a wrong-

ful death claim against an emergency

room doctor.

The doctor’s lawyers were allowed toargue the patient intentionally misled

the doctor about medication the patient

had taken in a purported suicide at-

tempt. The result was a jury verdict in

favor of the ER doctor last year.The trial judge affirmed the ver-

dict over objections of lawyers for the

patient’s family, who argued the jury

should not have been allowed to consid-

er evidence that the patient was carry-

ing out a suicide plan.

Roanoke Circuit Judge Charles N.

Dorsey explained his reasoning in

a 33-page opinion letter in Harris v.

Schirmer.

Dorsey’s reasoning was welcomed by

the Medical Society of Virginia, which

represents physicians in the state.

Troubling medical history

The case arose from the death of col-

lege student Mark Harris.The Washington & Lee Universi-

ty student died at Lexington’s Caril-

ion Stonewall Jackson Hospital early

on April 7, 2011, as the medical staff

sought to stabilize his symptoms, in-cluding tremors, fever and nausea.

Lawyers for Harris’ family sought to

narrow the case to focus on the treat-

ment by Emergency Department phy-

sician Patricia L. Schirmer on the night

of April 6, but Schirmer’s lawyers urged

consideration of Harris’ long-term med-

ical history.

Harris had struggled for years with

depression which worsened in the 2011

spring semester. A university psychia-

trist prescribed various sleeping medi-

cations and anti-depressants including

Selegiline.

Harris overdosed twice in March,

once on sleep medication and – the nextday – on a combination of Selegiline

INSIDE

Being a good listenertakes skill, practice

Page 4

Med-mal capdoesn’t applyNegligent credentialing

suit allowed by judge

BY DEBORAH ELKINS

A consultant hired by a two-mandental practice is facing a claim

for treble damages and attorney’s

fees under Virginia’s business con-spiracy statutes.

Last month, a Harrisonburg federal

court refused to dismiss the suit filed

by Frederick Broadhead, DMD, against

Diane G. Watterson and her consulting

business, Professional Dental Manage-

ment Inc., which is based in Frederick,

Maryland.

Broadhead con-

tracted with partner

Harry H. Heard III,

DDS, to buy the prac-

tice, Front Royal Den-

tal Care, according

to his complaint. The

two hired Watterson

in 2010 to help devel-

op their practice.

But when the dentists’ business rela-

tionship soured, Watterson secretly sided

with Heard and used confidential infor-

mation obtained during the consulting

relationship to discredit Broadhead, his

suit alleged.

“After gaining access to inside informa-

tion, you don’t turn around and target”

your client, said Falls Church lawyer Kev-

in E. Byrnes, who represents Broadhead.

In a Feb. 24 decision, U.S. District

Judge Elizabeth K. Dillon refused to dis-

miss Broadhead’s claims under Va. Code

§§ 18.2-499 and -500. The case is Broad-

head v. Watterson.

Dillon enumerated the acts alleged by

Broadhead to support his conspiracy theory.

Broadhead claimed Watterson, either

individually or through PDM, pushed

Heard to start a competing practice, en-

couraged Heard to tell Front Royal’s staff

that their jobs were in jeopardy, cast as-

Open wide: Dentist alleges harm from letting in consultant

Contrib allowed in med-mal lawsuit

A ‘truly unique’ case

BY PETER VIETH

A Virginia judge has ruled that apatient’s negligent credentialingclaim against a hospital owner isoutside the state’s Medical Mal-practice Act, effectively removingany cap on the patient’s recoveryfor that claim.

The Supreme Court of Virginia has not

yet decided whether a patient can sue a

health care facility for negligently allow-

ing a doctor to practice there, but Lynch-

burg Circuit Judge R. Edwin Burnette

Jr. recognized such a claim as a “distinct

cause of action.”Burnette pointed to “ample authority”

from other jurisdictions and from other

Virginia circuit courts validating actions

for negligent credentialing.

Burnette then went further, deciding

that negligent credentialing and privi-

leging claims are outside the scope of the

Virginia Medical Malpractice Act.

Virginia’s incremental medical mal-

practice cap limits the patient’s malprac-

tice claim to $2.10 million. The lawsuit,

including the credentialing claim, de-

mands $5 million.

Burnette’s Feb. 26 opinion is Martin v.

Salvaggio.

The ruling comes in the midst of a sep-arate court battle between the defendant

n See MALPRACTICE on PAGE 11

n See DENTIST on PAGE 11

n See LAWSUIT on PAGE 10

BYRNES


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Page 2 | © Virginia Lawyers Media, March 2016 Virginia Medical Law Report


3/12

© Virginia Lawyers Media, March 2016 | Page 3Virginia Medical Law Report

When doctors bring suit to

challenge decisions of insurers

BY DEBORAH ELKINS

A former employee who claimed

she was red after requestingmedical leave for psychologicaldistress has won double damagesunder the federal Family and Med-ical Leave Act.

U.S. District Judge Glen E. Conrad also

awarded attorney’s fees and costs of near-

ly $210,000 in the aftermath of a July 7

award by a Roanoke federal jury. Conrad

approved a lawyer’s billing rate of $325

to calculate the fee award in LaMonaca v.

Tread Corp. (VLW 016-3-021).

Headquartered in Botetourt County,

Tread manufactures explosives handling

equipment. The plaintiff in the case, Vala-

rie LaMonaca, was the company’s human

resources director.

Under pressure both at home and at

work, LaMonaca was distraught follow-

ing a tense meeting with the firm’s CEO

in April 2014, according to the judge’ssummary of the facts.

The CEO contended she resigned

during the Friday meeting, but LaMo-

naca maintained she said only that she

was considering resigning.

A flurry of text messages and emails

ensued over the following weekend. LaM-

onaca requested medical leave Sunday

afternoon. After a Monday doctor’s ap-

pointment, LaMonaca received an email

from the CEO saying her employment

had ended the previous Friday.

Conrad denied the company’s summa-

ry judgment motion last June 22, and a

jury found in favor of LaMonaca on both

interference and retaliation claims under

the FMLA.

After the jury verdict, the lawyers stip-

ulated to a back pay award of $54,468.89and submitted the issues of liquidated

damages and attorneys’ fees to Conrad.

Tread asked the judge to toss the jury’s

verdict and to either enter judgment for

the company or order a new trial. Conrad

denied both requests.

Tread’s defense relied heavily on its

contention that Lamonaca quit at the

Friday meeting. The jury decided in favor

of LaMonaca, however, and Conrad said

there was enough evidence to support

that finding.

“While the court may have given more

weight to [the CEO’s] testimony if it had

been the finder of fact, the court can-

not say that the evidence was so over-whelming that no reasonable jury could

have found against Tread on the issue of

whether LaMonaca voluntarily resigned

before she requested FMLA leave,” Con-

rad wrote.

LaMonaca’s claims survived even

though she had not yet received medical

treatment when she requested leave and

did not indicate how long the requested

absence would be, Conrad said.

The lack of a doctor’s note also was not

fatal to the claim, the judge said. The jury

could have found sufficient information

in LaMonaca’s emails to trigger further

inquiry by the company, he said.

A doctor’s testimony about LaMonaca’s

condition and his recommendation for a

30-day medical leave were sufficient to

show she was unable to work for the stat-utory standard of more than three con-

secutive days, Conrad said.

The judge discounted evidence that

LaMonaca applied for other jobs during

her medical leave period.

Conrad rejected Tread’s effort to set

aside the jury’s finding on retaliation.

“A reasonable jury could have found

that LaMonaca engaged in protected ac-

tivity when she requested FMLA leave;

that Tread subsequently terminated her

employment; and that Tread took the ad-

verse employment action because of LaM-

onaca’s protected activity,” Conrad wrote.

Conrad refused to order a new trial.

“While this court may have decided theissues differently if it had been the des-

ignated finder of fact, the court is unable

to conclude that the jury’s finding with

respect to either issue was against the

clear weight of the evidence or based on

evidence that was false,” Conrad said.

Under the FMLA, LaMonaca was en-

titled to double her damages award – a

bonus termed “liquidated damages” –

unless the employer could show it acted

in good faith and had

reasonable grounds

for believing it fol-

lowed the law.

“Based on the ju-

ry’s verdict, the court

is unable to find that

Tread acted in good

faith when it violatedthe FMLA,” Conrad

said. His ruling means

an extra $54,468.89 for LaMonaca.

LaMonaca’s attorney, Paul G. Beers of

Roanoke, submitted a $259,542 legal bill

for his work on the case. He based the re-

quest on an hourly rate of $350.

Conrad cut the rate to $325 after re-

viewing the parties’ submissions and fee

awards in similar cases.

Conrad also trimmed the fee request

by eliminating vague time descriptions

intended to cure instances of block bill-

ing. The cuts came for entries such as

“research,” “document review,” “work on

discovery” and “trial preparation.”Conrad reduced Beers’ hours by 15 per-

cent and an associate’s hours by 20 per-

cent for a 13-month period. The approved

fee award was $199,352.76. Costs were

calculated at $10,188.69.

Conrad expressly overruled Tread’s objec-

tion to costs for computerized legal research.

Conrad’s ruling came Jan. 21. No im-

mediate response was filed by Tread’s

attorneys.

BY BARRY F. R OSEN AND JOHN R. PALIGA

DOLAN MEDIA NEWSWIRES

Doctors have continued to le law-suits challenging the adverse deci-sions of insurers.

In the cases discussed below, the doctors

had mixed success in pursuing two differ-

ent, novel theories of alleged wrongdoing.

The Rojas case

In Rojas v. Cigna, Cigna determined

that a physician practice had been over-charging Cigna for certain services that

had been provided to Cigna insureds. Cig-

na demanded repayment from the prac-

tice, and then terminated the practice

from Cigna’s network after the practice

refused to repay the overcharges. The

practice responded by filing suit to stop

Cigna from removing the practice as an

in-network provider.

One of the claims that the practice

made was that Cigna’s decision to remove

the practice from the network violated

the anti-retaliation provisions in ERI-

SA. ERISA prohibits any discrimination

against an ERISA participant or benefi-

ciary who exercises any right he or she

may have under an ERISA plan.

The practice alleged that it was enti-

tled to the ERISA protection because it

met the definition of “beneficiary” in ER-

ISA. ERISA regards as a beneficiary any

person who “may become entitled to a

benefit” under an ERISA plan. The prac-

tice claimed that it was entitled to a ben-

efit under an ERISA plan because its pa-

tients had assigned to the practice their

rights to payment from the group health

plan and/or Cigna for medical services

that had been provided by the practice.

The 2nd U.S. Circuit Court of Appeals

ruled that the physician practice did not

have standing as a beneficiary under ER-

ISA. According to the court, to be a “bene-

ficiary” under ERISA, one must be owed a

benefit. The court ruled that “benefit” un-

der ERISA means the actual medical ser-

vices that patients receive from medical

service providers, but it does not include

the payment for such services.

It did not help the practice’s case that it

failed to produce copies of any written as-

signment-of-benefits forms that it alleged

its patients had signed. Nevertheless, the

court assumed for argument’s sake that

there had been a proper assignment to

the medical practice, but then ruled thatsuch an assignment would transfer only

the patients’ rights to be paid by Cigna,

and no other ERISA rights. The court also

expressed skepticism that patients could

somehow prevent the insurer from exer-

cising its rights to select the members of

the insurer’s physician network.

Service providers that wish to pursue

ERISA rights on the basis of assignments

from their patients also face another chal-

lenge -- the changing language of ERISA

health care plans. An increasing number

of plan sponsors have added language to

their plans to prohibit plan participants

from assigning their benefits and bene-

fit-related claims.

In any case, court decisions have come

down on both sides of this issue. In ad-

dition to the Rojas decision, federal ap-

pellate courts in Ohio and Georgia have

ruled that health care providers generally

cannot gain beneficiary status under ER-

ISA from assignments of their patients’

claims. However, federal trial courts in

New Jersey and Illinois have ruled that

providers can enforce such assignments

and file suit as beneficiaries. The courts

in Maryland have not published any rul-

ings on this issue.

The Michigan Spine case

In Michigan Spine v. State Farm, a

Employee gets double damages in medical leave case

n See SUING DOCTORS on PAGE 12

JUDGE CONRAD

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Table of Contents:

3 Employee gets double damages in medicalleave case

3 When doctors bring suit against insurers

4 Being a good listener takes skill and practice

5 An update to Telemedicine in Virgina

6 How to deal with alcohol abuse in theworkplace

6 Dealing with mental illness in the workplace

Being a good listener takes skill, practiceBY LOUISE PENBERTHY

DOLAN MEDIA NEWSWIRES

Have you ever worked with

someone who’s a poor listener?

Probably you have: someone who

never understands what you’re

saying, who doesn’t seem to payattention, who may even interrupt

you constantly.

Alternatively, you may have been sur-prised by a co-worker telling you thatyou’re not listening to them. Probablyyou have been listening, but you may bemissing cues that people give when theydon’t feel heard.

In my work as a mediator and a trainer,I’ve observed many conversations wherepeople don’t seem to be listening to eachother, who in fact may not be listening toeach other. I’ve also observed conversa-tions where someone doesn’t say outrightthat they don’t feel heard, that the otherperson doesn’t seem to be listening. Ad-

dressing the problem can be hard.Here’s a process you can use to get apoor listener to listen to you. Later on, I’lltalk about specific behavioral cues youcan look for to make sure you’re reallylistening.

If someone’s not listening to you:If you have a co-worker who’s a poor lis-

tener, or who’s a good listener but who’snot listening at the moment, here’s a pro-cess you can use to get yourself heard.

If you’re nervous or concerned aboutspeaking up, prepare yourself by ground-ing yourself and giving yourself some ex-tra confidence. (I work with many clientswho need to prepare like this; if you don’tneed to, you can skip this step.) Visualizeyourself as something strong and stable.Given where I am, in the Seattle area, I

imagine that I’m Mt. Rainier; you couldimagine that you’re Borah Peak.

Practice this visualization a few times.It’s fun, and you’ll be ready to use it im-mediately whenever you need it.

Prepare a few things you can say whena co-worker’s not listening. That way, you’llhave them ready to use in the moment,when it’s sometimes hard to think of some-thing to say. A good formula is to make a

neutral observation, and follow with a sug-gestion for doing something different. Forexample, “You seem to have something onyour mind (neutral observation). Shouldwe talk at another time? (suggestion for do-ing something different).”

Or, “You started to talk before I wasfinished (neutral observation). Would itbe okay if I finished what I have to saybefore you ask questions? (suggestion fordoing something different).”

Or, “I notice you keep looking at yourphone (neutral observation). Are youexpecting an important call or text? (amore subtle suggestion, i.e., politely ofsuggesting that they stop looking at theirphone).”

Of course, if this co-worker reports toyou, you can be more blunt. “You keep

looking at your phone. Are you expectingan important call? If not, please put yourphone away.”

Chances are, your co-worker will startlistening once you say something to them.Or, if your co-worker does have somethingon the mind, or is expecting an importantcall, talking at another time would proba-bly work better.

Promise yourself a reward for speakingup to a poor listener. For example, youcould promise yourself to find your favorite view from the building, and look atthat view for even just five minutes. Youcould enjoy one ounce of excellent darkchocolate. Or you could take a break andplay your favorite game for five minutes.

Whatever you promise yourself as a re-ward, make sure you give it to yourself,

even if speaking up wasn’t as difficult asyou thought.

If a co-worker says you’re not listening

Hearing that you’re not listening mightcome as an unwelcome surprise. Maybeyou’re not in fact listening. Or maybeyou’re listening but you’re missing cuesthat people display when they’re not feel-ing heard.

Here are some cues you should look forso you know that a co-worker doesn’t feelheard something. Your co-worker may be:

• furling their brow• wrinkling their face• sighing or holding in breath• repeatedly starting to say the same

thing • cutting themselves off short when

you begin speaking • having a set expression on their face• speaking in a tight or stilted voice• smiling overly broadly• saying they don’t have anything more

to say when earlier they did.If you see any of these cues, there are

several things you can do. You can stoptalking and see if your co-worker will fin-ish what they were saying. You can ask,

“Did you want to say something more?” You can say, “I’m sorry, I didn’t realize youwere still talking. Please continue.”

Whatever you do, wait for your co-work-er to continue talking. A good guideline isto wait at least three times as long as youthink you should. It will feel like a longtime to you, but you’ll give your co-work-er a chance to collect their thoughts andcontinue talking.

If a co-worker is a poor listener, prepareyourself to speak up tactfully, and rewardyourself for doing so. If you’re hearingthat you don’t seem to be listening, makesure you are. Better still, look for thecues that tell you a co-worker doesn’t feelheard, and let them speak.

Louise Penberthy is a mediator in Seattle.


5/12


Telemedicine in Virginia: An Update

MAYER

BY JULIE C. MAYER

With advances in technology, tele-medicine is a growing eld. It al-lows practitioners to utilize technol-ogy to provide more convenient,exible and cost-effective care to

patients. More and more practicesaround the commonwealth are uti-lizing telemedicine.

The General Assembly in Virginia hasdefined telemedicine services to mean“the use of electronic technology or me-dia, including interactive audio or video,for the purpose of diagnosing or treatinga patient or consulting with other healthcare providers regarding a patient’s di-agnosis or treatment.” Va. Code § 32.2-3418.16 (B). The definition specificallystates that telemedicine services do notinclude an “audio-only telephone, elec-tronic mail message, facsimile transmis-sion, or online questionnaire.”

The Virginia Board of Medicine hasrecognized that telemedicine services of-

fer potential benefits in the provision ofmedical care, including: facilitating com-munication between practitioners, otherhealth care providers and their patients,prescribing medication, medication man-agement, obtaining laboratory results,monitoring chronic conditions, providinghealth care information and clarifyingmedical advice. While telemedicine services offer more convenience and accessto medicine for many patients, practi-tioners must be aware of the applicablelaws and regulations before utilizing tele-medicine services.

Because the General Assembly has notestablished statutory parameters regard-ing the provision and delivery of telemed-icine services, the Virginia Board of Med-icine published a guidance document to

assist providers in this growing area in2015. The Board specifically noted that itis committed to ensuring patient accessto the convenience and benefits affordedby telemedicine services. However, theguidance document does not limit theBoard of Medicine’s ability to investigate,discipline or regulate practitioners in theCommonwealth of Virginia. Practitionersmust apply existing laws and regulationsto the provision of telemedicine servicesin Virginia.

Establishing the Practitioner-Patient Relationship.

The establishment of the practi-tioner-patient relationship is fundamen-tal to the provision of acceptable medicalcare. Virginia Code § 54.1-3303(A) provides the requirements of establishingthe relationship. In terms of telemedicineservices, the Virginia Board of Medicinediscourages its use by a practitioner with-out (1) fully verifying and authenticatingthe location, and to the extent possible,confirming the identity of the requestingpatient; (2) disclosing and validating thepractitioner’s identity and applicable cre-dentials; and (3) obtaining appropriateconsents from requesting patients. Whenobtaining consents, the practitionershould disclose the delivery models andtreatment methods or limitations, includ-ing any special informed consents regard-ing the use of telemedicine services. Apractitioner-patient relationship has notbeen established when the identity of thepractitioner is unknown to the patient.

Guidelines for the Appropriate Useof Telemedicine Services. It is important for the practitioner to

recognize that all situations and patientpresentations are not appropriate fortelemedicine services, and it is the re-sponsibility of the practitioner to make

that determination.To assist practi-tioners, the VirginiaBoard of Medicinehas published sever-al guidelines.

LicensureThe practice of med-

icine occurs where thepatient is located atthe time telemedicineservices are used. A

practitioner must be

licensed by the regulatory board of thestate where the patient is located, and thestate where the practitioner is located.

Evaluation and Treatmentof the Patient

A documented medical evaluation anda collection of relevant clinical history ap-propriate with the patient’s presentationmust be obtained before providing anytreatment. Treatment and consultationrecommendations made in an online set-

ting will be held to the same standardsof care as those in a traditional setting.Issuing a prescription based solely on anonline questionnaire is not in comportwith the standard of care.

Informed Consent Evidence documenting informed con-

sent must be maintained. Appropriateinformed consent should include at min-imum: the identification of the patient,practitioner and practitioner’s creden-tials; types of activities permitted usingtelemedicine services; agreement by thepatient that it is the practitioner’s deci-sion to determine whether or not a con-dition is appropriate for telemedicine;details on security measures taken andrisks to patient privacy notwithstandingthose measures; a hold harmless clausefor information lost due to technical fail-ures; and requirement for express patientconsent to forward patient-identifying in-formation to a third-party.

Medical RecordsRecords from telemedicine services

must be maintained, and should includeif applicable: copies of all patient-relatedelectronic communications (communica-tion with patient, prescriptions, laborato-ry results, evaluations and consultations,records of past care, and instructionsobtained or produced in connection withthe use of telemedicine services) and in-formed consents. The medical recordsmust be accessible to both the patientand practitioner in accordance with es-tablished laws and regulations.

Privacy and Security of Records Any practitioner utilizing telemedicineservices should maintain written policiesand procedures for documentation, main-tenance, and transmission of the recordsof encounters. The policies and proceduresshould address (1) privacy, (2) health-carepersonnel who will process messages, (3)hours of operation, (4) types of electronictransactions permitted, (5) required pa-tient information to be included in trans-actions, (6) archival and retrieval, and (7)quality oversight mechanisms.

PrescribingPrescribing medications via telemed-

icine is at the professional discretion ofthe practitioner. Prescriptions issued us-ing telemedicine services will be adminis-tered with the same professional account-

ability as prescriptions delivered during

an in-person encounter. All prescriptionsmust comply with the requirements setout in Va. Code §§ 54.1-3408.1 and 54.1-3303(A).

Telemedicine is growing, both globallyand within the Commonwealth of Virgin-ia. It is estimated that the global marketfor telemedicine will be worth more than$34 billion by the end of 2020. Twen-ty-nine states, including Virginia, and theDistrict of Columbia require that privateinsurers cover telemedicine services the

same as they cover in-person services.With telemedicine services continuedgrowth, it is important for practitionersto understand the laws and regulationsthat apply before they begin to providetelemedicine services as part of theirpractice.

Julie C. Mayer practices law with Han-

cock Daniel Johnson & Nagle in the firm’s

Richmond office.

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6/12


7/12


Defense Verdict

On Oct. 31, 2013, plaintiff’s decedent, a

5-year-old male with history of chronic se-

vere obstructive sleep apnea underwent a

tonsillectomy and adenoidectomy surgery

(T&A) to seek relief from the ongoing

obstructions in the airway. The patient

tolerated the procedure well, it was un-

complicated and the patient dischargedafter appropriate post-anesthesia care

unit observation and evaluation. Sever-

al hours later, the plaintiff, decedent’s

mother, found him unresponsive on the

family room couch and 911 was called.

Despite significant resuscitative efforts,

the decedent was pronounced dead at the

hospital. The Commonwealth of Virginia

Medical Examiner death investigation

found that the decedent died of a cardiac

arrhythmia of unknown etiology.

Plaintiff filed suit in the Fairfax County

Circuit Court, alleging that the decedent

was not an appropriate patient for outpa-

tient T&A because he had severe obstruc-

tive sleep apnea. Plaintiff claimed thatthe anesthesia given that morning, pain

medication given later in the day and the

decedent’s history of obstructive sleep ap-

nea led to a respiratory/pulmonary com-

promise and arrest that led to his death.

Defendant denied the allegations and the

case was tried on Nov. 30, 2015.

Plaintiff’s standard of care expert, Pa-

tricia Yoon, M.D., a pediatric otolaryn-

gologist from Denver, testified that the

defendant breached the standard by not

scheduling the T&A surgery as inpatient,

per American Academy of Otolaryngol-

ogy literature suggesting that patients

like the decedent should be admitted for

overnight monitoring. Plaintiff’s cause

of death expert, Jonathan Arden, M.D.,

a forensic pathologist, testified that his

review of the records and post-mortem

investigation led him to conclude that the

decedent had a respiratory compromisethat led to respiratory/pulmonary arrest

and ensuing death.

Defense standard of care experts,

Gregory Zachmann, M.D., a general

otolaryngologist from Roanoke, and

Joseph Hutchison, M.D., a general oto-

laryngologist from Lynchburg, testified

that the defendant physician’s care and

plan for the T&A surgery were appro-

priate and reasonable for the patient in

that case. They also testified that the

Virginia standard of care for general

otolaryngologist practice is not set by a

piece of literature that has a recommen-

dation that physicians consider doing

such procedures as inpatient, and thatthis patient’s situation did not indicate

the need for inpatient admission fol-

lowing the surgery. Defense causation

expert, Anthony Casalaro, M.D., a pul-

monologist, testified that there was no

evidence in the medical records or the

medical examiner’s report (nor the au-

topsy) that showed evidence of a pul-

monary or respiratory cause of death.

Defense causation expert, Simeon

Boyd, M.D., a pediatric geneticist from

the University of Cali fornia, Davis, tes-

tified that genetic testing from DNA

samples kept by the medical examin-

er’s office found gene mutations that

show the decedent had a rare inherit-

able cardiac conduction disorder called

Brugada Syndrome, which is known to

cause sudden cardiac death, even in in-

dividuals who have no prior evidence ofcardiac pathology. The geneticist also

testified that the genetic disorder un-

covered through the DNA testing was

consistent with the findings of the med-

ical examiner’s investigation.

After a five-and-a-half day trial, the

jury deliberated for approximately 90

minutes and returned a verdict for the

defendant.

[15-T-199]

Type of action: Medical malpractice –

wrongful death

Court: Fairfax County Circuit Court

Tried before: Jury

Judge: Brett Kassabian

Date resolved: Dec. 9, 2015

Special damages: Past medical bills – $89,000; past

lost wages – $208,000; future lost wages – $175,000

Demand: $2,200,000

Offer: None

Verdict or settlement: Defense Verdict

Attorneys for defendant: Richard L. Nagle and

James N. Knaack, Fairfax

Insurance carrier: The Doctors Company

Child with sleep apnea died of cardiac arrhythmia after surgery

NAGLE KNAACK

The Verdicts & Settlements page is a forum for lawyers in Virginia to share results of recent cases. It is intended as a tool

to help in determining case values for trial or settlement. Submissions are provided by one of the lawyers in the case.

Virginia Lawyers Weekly reserves the right to edit submissions for style, language and length.


8/12


$1,750,000 Verdict

Plaintiff was a 74-year-old woman with

diabetes, previous stroke and cardiac

catheterization with stent placement, who

underwent a bilateral knee replacement

surgery. Her orthopedic surgeon lacerated

the popliteal artery on the first knee. In-

jury was diagnosed in the recovery room,

but a vascular surgeon’s attempt at a re-pair failed and the patient underwent am-

putation on post-op day four.

The carrier refused to make an offer for

months, arguing the plaintiff’s demand

of $1.7 million was too high for Augusta

County. One week before trial, negotiations

started, but the carrier stopped with an of-

fer of $500,000. The plaintiff’s last demand

before trial was $850,000. The carrier with-

drew the offer the day before trial.

On pretrial motions, evidence of “risks

of procedure,” “known complication,” and

similar misleading terms were excluded

from evidence. The court excluded evi-

dence the defendant had never had this

complication before.On the first day of trial, the local news-

paper published a front-page banner

headline story about the lawsuit. The sto-

ry was also posted online the day before

trial, prior to jury selection. The paper

published the defen-

dant surgeon’s out-

standing low compli-

cation rates for knee

surgeries and his high

ranking for low com-

plications, information

which had been ex-

cluded from trial on a

motion in limine. The

story was brought to

counsel’s attention after the court had

granted 17 motions to strike jurors for

cause. With a panel of over 60, an impar-

tial jury was seated.Each party had two standard of care

experts, and the plaintiff also called a

vascular surgeon, who undermined de-

fense causation arguments based on the

treating vascular surgeon’s notes saying

the patient had significant peripheral

vascular disease which complicated part

of a bypass procedure designed to bypass

the injury and save the leg.

The plaintiff was a pastor, was very resil-

ient and minimized her damages. She was

largely confined to a wheelchair, even with

her prosthetic leg. After she had the above-

the-knee amputation on the right, she

could not rehab her left knee that had beenreplaced, and it froze on her. Before her in-

jury, the plaintiff had founded a Meals on

Wheels chapter when she lived in Penn-

sylvania and was a friend to a neighbor’s

child with cerebral palsy. After becoming

disabled, she had to call on her neighbor oc-

casionally to help her when she fell or had

difficulties with personal care.

After the jury deliberated for four

hours and came back with alarming ques-

tions, the plaintiff reduced her demand to

$750,000. The carrier did not respond.

The jury returned a verdict of $1,750,000after a five-day trial, almost a full day of

which was deliberations.

[15-T-204]

Type of action: Medical malpractice

Injuries alleged: Above-knee amputation

Name of case: Reeder v. Boatright

Court: Augusta County Circuit Court

Case no.: CL14-1056

Tried before: Jury

Judge: John J. McGrath Jr.

Date resolved: Dec. 15, 2015

Special damages: The patient had $360,731.97 in

medical bills and a life care plan of $534,149.60 to

$688,549.40, depending on various options

Demand: $750,000

Offer: $500,000

Verdict or settlement: Verdict

Amount: $1,750,000

Attorneys for plaintiff: Lee Livingston, Yvonne T.

Griffin and Lisa Brook, Charlottesville

Plaintiff’s experts: Dr. Heather W. Brien, M.D.,

vascular surgery; Dr. Jeffrey Garske, M.D., orthope-

dic surgery; Dr. Sonny Bal, M.D., orthopedic surgery;

Susan Riddick-Grisham, life care plan

Defendant’s experts: Dr. Gary G. Poehling,

M.D., orthopedic surgery; Dr. John W. Mann, M.D.,

orthopedic surgery

Patient underwent amputation after failed knee replacement

LIVINGSTON GRIFFIN

BROOK

Defense Verdict

This medical malpractice case involved

the percutaneous placement of a device toclose a hole in the atrial septum of the

plaintiff’s heart. The device slipped out

of position during the placement proce-

dure, eventually leading to significant

neurologic injury. At trial, plaintiff al-

leged multiple theories of negligence that

challenged the defendant physician’s

measurement of the hole, placement and

deployment of the device, and efforts to

retrieve the device after it moved out of

the septum and into the left atrium. Re-

lated claims against other co-defendants

were resolved and dismissed before trial

and the case went to trial against the in-

terventional cardiologist only.

The plaintiff was a 48-year-old cabinetfinisher. He previously underwent triple

bypass surgery and had a complex med-

ical history including Type II diabetes,

COPD, hypertension and high cholester-

ol. However, he maintained an active life-

style without significant limitations prior

to the procedure, and he was employed

full-time.

During routine follow-up after the by-

pass surgery, plaintiff’s treating cardi-

ologist diagnosed an atrial septal defect

– a hole in the atrial septum. The cardi-

ologist referred plaintiff to the defendant

physician, an interventional cardiologist

with experience treating these defects.

The defendant physician planned to close

the ASD percutaneously by delivering a

closure device known as an atrial septal

occluder through a catheter placed in the

groin and threaded up into the heart.

During the ASD closure procedure, the

ASO embolized, migrating out of the atri-

al septum and into the left atrium. De-

spite efforts by the defendant physician

to retrieve the ASO with snares, it fur-

ther embolized into the left ventricularoutflow tract. The defendant physician

consulted with a cardiothoracic surgeon

and they decided that the plaintiff would

require open-heart surgery to retrieve

the occluder and close the defect.

Following open-heart surgery to re-

move the device, the plaintiff had an em-

bolic stroke, which he attributed to the

ASO blocking the left ventricular outflow

tract. Among other things, his debilities

include difficulty swallowing, profound

gait disturbance necessitating a walker

or wheelchair, and difficulty with speech.

He also had compartment syndrome in

his dominant hand, leading to strength

deficits and loss of sensation. He is no

longer able to work and is separated from

his spouse.

The plaintiff’s expert interventional car-

diologist offered the opinion at trial that

the defendant physician was negligent inthree ways: 1) inaccurate measurement

of the ASD; 2) improper placement of the

ASO; and 3) negligent efforts to retrieve

the ASO when it embolized. In essence the

plaintiff’s theory was that the device must

have been too small, causing it to embolize.

The opposing experts offered conflicting

theories and analysis of the measurement

of the size of the device and the reasons

why the device came out of position and

could not be readily retrieved.

The defense argued that the defendant

physician accurately sized the hole, but

variations in the anatomy and heart tis-

sue were such that the device did not stay

in place despite accurate sizing and skill-

ful deployment. The defendant physician

offered expert testimony by two preemi-

nent interventional cardiologists, both of

whom have participated in peer-reviewed

studies on percutaneous ASD closure.Both sides relied on medical literature

in support of their positions, and used an-

imation and other medical illustrations

to educate the jury. A complicating issue

in the case involved the fact that certain

echocardiographic imaging studies main-

tained by the hospital where the proce-

dure was performed were no longer avail-

able at the time of the lawsuit.

The trial lasted five days. The court

gave the jury an Allen charge after sev-

eral hours of deliberation. Ultimately,

the jury returned a unanimous verdict

in favor of the defendant physician after

approximately five hours of deliberation.

[15-T-205]


Injuries alleged: Complications from cardiac

procedure causing stroke leading to significant

neurologic injury and profound disability

Tried before: Jury

Date resolved: Nov. 20, 2015

Special damages: Past and future medical ex-

penses, lost wages and a life care plan of more than

$2,000,000; pain and suffering damages of more

than $5,000,000

Demand: Ad damnum was $2,500,000

Verdict or settlement: Defense verdict

Attorneys for defendant: Sean P. Byrne & John E.

Peterson Jr., Glen Allen

Defendant’s experts: John W. M. Moore, M.D.,

interventional cardiology; Deepak Talreja, M.D.,

interventional cardiology

Plaintiff’s experts: Abram C. Rabinowitz, M.D.,

interventional cardiology; Gene O. Neri, M.D.,

neurology

Insurance carrier: MagMutual Insurance Company

Closure device slipped out of place during heart surgery

BYRNE PETERSON

$1 million settlement

This medical malpractice case alleged

the wrongful death of a 75-year-old due to

delayed communication of cancer diagnosis.

[15-T-208]


Injuries alleged: Wrongful death

Court: Newport News Circuit Court

Verdict or settlement: Settlement

Amount: $1,000,000.00

Attorney for plaintiff: Avery T. “Sandy” Waterman Jr., Newport

News

Wrongful death case brought over delayed communication

WATERMAN


9/12


Defense Verdict

Decedent was 19 years old and suf-

fered from sickle cell disease. She pre-

sented to Virginia Hospital Center-Ar-

lington on May 29, 2011, with signs and

symptoms consistent with sickle cell va-

so-occlusive pain crisis. On the morning

of May 31, she was transferred to theICU with plummeting oxygen saturation

levels and respiratory distress. Chest

X-rays and CT scan showed significant

bilateral basilar airspace disease. The

patient’s course continued to worsen and

she died on June 9, 2011.

Plaintiff presented evidence that the

patient was suffering from acute chest

syndrome, which is a serious complication

of sickle cell disease. Plaintiff’s expert in-

tensivist/pulmonologist testified that the

standard of care required the defendants

on May 31 and/or June 1 to have obtained

a hematology consultation and to have or-

dered a special blood transfusion known

as an exchange transfusion in order to

properly treat the

patient’s acute chest

syndrome. Neither he-

matology consultation

nor exchange transfu-

sion took place until

June 3, 2011. Plain-

tiff’s expert witnesses

testified that had de-

fendants met the stan-

dard of care and time-

ly obtained exchange

transfusion and hematology consultation,

the patient would not have died.

Defense experts testified that un-

der the circumstances the standard

of care required neither hematology

consultation nor exchange transfu-

sion prior to the time that those ste ps

were, in fact, taken. Defendant’s pul-

monology expert testified that the pa-

tient was suffering from severe pneu-

monia, likely due to an aspiration

event, which took her life in spite of

appropriate care by defendants. De-fendants’ sickle cell disease expert

testified that even with earlier ex-

change transfusion, the patient none-

theless would have died.

Plaintiff presented rebuttal expert

testimony that the patient did not have

pneumonia.

The case was submitted to the jury on

day six of trial. The jury returned a de-

fense verdict on day seven. Plaintiff has

filed a petition for appeal with the Su-

preme Court of Virginia. The court has notyet heard oral argument on the petition.

[15-T-217]

Type of action: Medical malpractice –

wrongful death

Court: Arlington County Circuit Court

Tried before: Jury

Judge: Louise M. DiMatteo

Date resolved: June 3, 2015

Special damages: Medical bills for final hospitaliza-

tion – $179.389; funeral and burial expenses – $19,303;

grief counseling – $675; sorrow; mental anguish; so-

lace; loss of companionship, comfort, guidance, advice

Demand: No formal demand made but mediation

requested, which defendants declined. Plaintiff

sued for $10,000,000 and asked the jury for

$3,100,000 in closing argument.

Offer: None

Verdict or Settlement: Defense verdict

Attorneys for defendant: Susan L. Mitchell, Mat-

thew D. Banks and Judd P. Altman, Fairfax Insurance

carriers: The Doctors Company

Hospital patient died from complications of sickle cell disease

MITCHELL

ALTMAN

BANKS

$1.85M verdict

A 62-year-old female had blood workdone to evaluate an inflamed tick bite.Testing showed elevated liver functionresults. Further investigation lead to adiscovery of a large gallstone. Surgerywas recommended and was performed inSeptember 2012 in Fredericksburg.

At surgery the surgeon took an intraop-erative cholangiogram, preplanned to makesure she had no other gallstones in thecommon duct. The surgeon saved one im-age from the intraoperative cholangiogramand it was, according to plaintiff’s experts,abnormal. Plaintiff’s case against the sur-geon was that in light of the cholangiogramhe should not have proceeded with cuttingwhat he believed to be the cystic duct be-cause the cholangiogram “predicted” that hewas about to create a major biliary injury.

The surgeon and his experts testified thatthe cholangiogram image he took did not tellthe entire story because it was but a “mo-ment in time.” The surgeon testified thatwhat he saw on the screen before taking thepicture showed a normal cholangiogram.

At surgery, the surgeon inadvertently

removed a large segment of the commonhepatic duct and the right and left hepat-ic ducts, leaving bile to drain into the pa-tient’s abdomen. Neither the surgeon northe pathologist noticed the extra biliarytree parts post-operatively.

The patient went home that day andtraveled to her second home in NorthCarolina, with the surgeon’s permission.

There were then a series of phone callsback to the surgeon’s office. On the af-ternoon of surgery the patient’s husbandcalled and spoke to a nurse. He told thenurse that his wife was in a great deal ofpain. He requested a change of medicationfrom the Percocet to Vicodin. The nursetold him this was normal post-op pain andthat Vicodin wasn’t going to help. The sur-geon never heard about this call.

On the fifth post-operative day, thepatient called again, this time complain-ing that the Percocet wasn’t covering thepain, she could not eat anything and shehad left shoulder pain. She spoke with adifferent nurse who told her this was allnormal. That nurse did not tell the sur-

geon either. Instead, she ordered the Per-cocet stopped and, using the surgeon’sDEA number, called in a new prescriptionfor Vicodin to the pharmacy. The pain con-tinued for another nine days but becausethe patient was under the impression thatthe nurse had spoken to the surgeon, andthat the surgeon said this was “normal,”she did not call back to the office.

Two weeks after surgery, the patientstarted spitting up bile and now felt evenworse. It was later determined that shehad four liters of bile, causing bile peri-tonitis and adhesions in her abdomen.She called the surgeon’s office and spoketo the same nurse she had spoken to onday five. The nurse told her to go to the

emergency room and “bring your recordswith you when you come for your followup visit with the surgeon next week.” Again, she didn’t tell the surgeon of thecall even though at trial she testified thatthis “sounded a little weird to her.”

The patient was evaluated at Wake Medin NC, emergently transferred to a hospitalwhere, after initial testing, a surgeon whodid not have much experience in repairingmajor biliary injuries like this, took her tosurgery, creating a massive vertical scar.

While in surgery that surgeon begansending photos to a liver transplant sur-geon, who told him to place drains, close,and transfer the patient to his service.That initial surgery was about 6 hoursbecause there were by now massive ad-

hesions and it took a long time to locatewhat remained of the right and left he-patic ducts. The common bile duct wasfound with a surgical clip on it (as onemight expect after the misidentification).

While she was in the hospital for herfirst surgery, the surgeon who did the

gallbladder surgery called and left sever-al messages on the patient’s cell phone,telling her how sorry he was and how hehad to apologize because no one in his of-fice told him about her calls.

Several months later she had a defin-itive repair in a 12-hour surgery by thetransplant surgeon (David Gerber, MD),who created a much smaller horizontalincision. Gerber had to go inside the liv-er to locate what remained of the rightand left hepatic ducts. He also had to dealwith both the massive adhesions from thebile peritonitis and the adhesions fromthe first exploratory surgery. Evidenceat trial was that had Dr. Gerber seen herfirst, she would have avoided the massive vertical incision and scarring.

A year later she had a huge abdominalmesh implanted because of the herniacaused by the combination of the large vertical (caused by the surgeon who hadlittle experience doing this type of a re-pair) and smaller horizontal incisionswhich basically crisscrossed. That alsowas about an eight-hour operation. Shewent about 2 ½ years before stricturingdown her repaired anastomosis betweenwhat remained of her right and left he-

patic ducts and her duodenum. That wasan eight-day admission for implantationof stents. Shortly thereafter she had aprocedure to remove the stents. She alsotestified that her hernia was now recur-ring and she was likely headed to yet an-other surgery.

The surgeon was sued for the origi-nal gallbladder surgery. The nurse wasnot named individually because at thetime the lawsuit was filed it was unclearwhether the patient’s messages of con-tinued pain had actually been passed onto the surgeon. Plaintiff pleaded a claimagainst the corporation contending thateither the messages had or had not beenpassed to the surgeon but that either way,the corporation was liable.

Past medical bills were $340,000.There was testimony at trial, some ofwhich came from the defense experts,that the damages caused by the nurse’sfailure to pass the messages would havebeen greatly reduced. The two week delaycaused the need for the multiple abdom-inal surgeries, the later abdominal wallrepair, a massive vertical scar and, argu-ably even the stenting procedure. (Oneof the defense experts testified that mostthe damage to the common bile duct wascaused by the effects of the bile duringthe two week delay.)

The plaintiff’s case was finished by10:30 the second day of trial. The court ad- journed the afternoon of the second day oftrial because of scheduling issues with two

defense experts. The jury received the caseat 12:40 p.m. on the third day of trial andreturned its verdict in favor of the surgeonbut against the practice group (for thenegligence of the nurse) at 3:00 p.m. (Seealso the story, VLW, Jan. 25, 2016).

[16-T-006]

Nurse failed to tell surgeon that patient called him with post-op complaints

Type of action: Medical Malpractice

Injuries alleged: Gallbladder surgery and

follow-up

Name of case: Christine Hommel v. Surgical

Associates of Fredericksburg

Name of judge: Gordon F. Willis

Date resolved: Jan. 6, 2016

Verdict or settlement: Verdict

Amount: $1.85 million

Attorneys for plaintiff: Benjamin W. Glass III and

James Abrenio, Fairfax

Attorneys for defendant: Robert Donnelly and

Robyn Ayres, Richmond

Plaintiff’s experts: Glenn Sanders MD, General

Surgery, Maryland; Michael Leitman MD, General

Surgery, New York; David Gerber MD, hepatobililary

surgeon repaired the injury, North Carolina; Sherri

Smith LPN, nursing standard of care, Midlothian

Defense Experts: Stephen Hill MD, General

Surgery, Roanoke; Christopher Steffes MD, General

Surgery, Detroit

Insurance carrier: The Doctor’s Company

GLASS III ABRENIO

valawyersweekly.com


10/12


11/12


persions on Broadhead’s management

skills, advanced Heard’s false claim that

Broadhead was forcing him out of Front

Royal because of personal greed, dis-

closed confidential information to Heard’s

attorneys and destroyed communications

with Heard.

The allegations supported a plausible

claim that Watterson, in combination

with Heard, “acted intentionally, pur-posefully and without lawful justification

to injure Dr. Broadhead in his business,”

Dillon wrote.

The Front Royal practice was harmed,

the complaint alleged, because Broad-

head had to spend extra time with staff

members to reassure them he was not

going to fire them and the practice was

being properly managed. He also had to

spend money to arbitrate his business

dispute with Heard. His complaint al-

leges damages of $300,000.

Dillon dismissed Broadhead’s claim for

breach of fiduciary duty without preju-

dice, holding that he failed to show the

existence of a duty arising from an agen-cy relationship.

Deal was undone

In 2007, Broadhead and Heard en-

tered into a purchase agreement for

Broadhead to buy the Front Royal prac-

tice. Broadhead made his first payment

in 2007, and was scheduled to make his

second payment in 2012. During the in-

terval, the two dentists practiced togeth-

er as partners.

A multi-year transition period is typi-

cal in the sale of a dental practice, accord-

ing to Byrnes. Negotiating the sale andpurchase of dental practices is a special-

ized matter, he said, and buying a prac-

tice is not as straightforward as it might

appear to practitioners fresh out of den-

tal school. The larger insurance frame-

work may be less complicated than in a

medical practice, malpractice premiums

usually are lower than for physicians and

most practices have a strong good will

value, as many patients attend the same

practice for years.

But deals that dentists put together on

their own may come unraveled. Byrnes

said he has handled several disputes

arising from the sale of a dental prac-

tice in recent years.Byrnes represented Broadhead when

he and Heard could not resolve differ-

ences over Heard’s desire to stay on as

a part-owner with the Front Royal prac-

tice. When Broadhead refused to alter

their deal, Heard resigned and set up

a competing dental practice. Broadhead

brought an arbitration against Heard,

which resulted in a settlement.

Surprise witness

When preparing for the arbitration,

Broadhead was surprised to find Wat-

terson on the witness list f or Heard, By-

rnes said. Byrnes said that when Broad-

head tried to subpoena documents from

Watterson, she said she did not haveany to share. Broadhead later obtained

from Heard documents indicating Wat-

terson had taken an active role in aid-

ing Heard to disadvantage Broadhead,

according to Byrnes.

The two dentists settled their dispute

and Heard went on to purchase a dental

practice in Luray. Broadhead filed suit

against Watterson and DPM.

Broadhead’s complaint said discov-

ery in the underlying dispute had re-

vealed copies of emails Watterson sent

to Heard in 2012 and 2013 in which she

discussed “highly negative assessments

of Dr. Broadhead” involving the strained

relationship between the two dentists,the sale of the practice, Broadhead’s

management style and personality, the

opening of Heard’s competing practice

and Broadhead’s ability to successfully

manage the practice after the sale was

completed.

Broadhead alleged he also obtained

copies of emails between Watterson and

a Front Royal staff member in which

she counseled that person about finding

alternative employment.

Watterson “directly injected herself

into the dispute” by drafting a “To Whom

it May Concern” letter, attached to the

complaint. That letter characterized

Heard as the “high producer in the prac-tice,” who “enjoyed significant popularity

in the community at large,” and project-

ed “significant attrition of patients when

they discovered Dr. Heard was no longer

practicing” with Front Royal.

“I had no doubt that Dr. Heard’s de-

parture would not be received well by pa-

tients, especially if they were uninformed,”

the letter continued. The letter said that

“business decisions were made that went

against my advice,” and the “consequences

of those decisions may produce negative

outcomes for years to come.”

“We didn’t really believe she would

interject herself into the underlying lit-

igation,” with the letter, Byrnes said.Fairfax lawyer John P. Sherry, who

represented Watterson, could not be

reached for comment.

Dentist | n continued from page 1

doctor and the healthcare company that

stripped him of privileges last year. The

doctor took Centra Health Inc. to court

over the dispute, and Burnette agreed to

seal that entire case from public view.

Artery repairThe patient’s case arises from 2013 sur-

gery to repair an aneurysm in his com-

mon iliac artery, according to allegations

in the lawsuit filed by James E. Martin.

Surgeon Mark A. Salvaggio recom-

mended open surgery instead of an endo-

scopic procedure, the suit alleged. During

surgery, Salvaggio allegedly cut Martin’s

left ureter, damage that went undiscov-

ered for more than a month.

Martin lost his left kidney as a result of

the alleged surgical mistake, his lawsuit

contended.

An amended complaint named Salvag-

gio, his practice group and Centra Health,

owner of Lynchburg General Hospital.Martin is represented by Les S. Bowers

and Anthony M. Russell of Roanoke.

The suit alleged Centra “credentialed,

privileged, and otherwise permitted Dr.

Salvaggio to perform general and/or vas-

cular surgery at its facilities” even though

Centra knew or should have known Sal-

vaggio was not capable of performing

vascular surgery in compliance with the

standard of care.

Martin claimed he and all Centra pa-

tients reasonably relied on Centra’s asser-

tions that health care providers at its facil-

ities were skilled, competent and qualified.

Centra revoked Salvaggio’s surgery

privileges in January 2015 on grounds

that Salvaggio engaged in “conduct det-

rimental to patient care,” Martin’s suit

claimed. The suit said Centra banned thedoctor from its facilities.

Defensive pleadings

Centra responded to the suit with a

demurrer and a challenge to Martin’s ex-

pert certification. Virginia law requires a

medical malpractice lawsuit be based on

an expert’s written opinion supporting a

malpractice claim.

Burnette noted prior circuit court

decisions recognizing the possibility of

a negligent credentialing claim. Centra

cited no case law to the contrary, he said.

While a 2001 opinion held that a patient

must plead reasonable reliance on a hospi-

tal credentialing process to advance a claim,

Burnette said Martin had met that test.“The Court finds that the plaintiff

states with sufficient particularity a

claim for negligent credentialing and

privileging. Therefore, Centra’s Demur-

rer will be overruled,” Burnette said.

Centra also sought to use the expert

opinion requirement to force the cre-

dentialing claim out of the case. Centra

questioned whether the plaintiff’s expert

opinion extended to credentialing.

Centra urged Burnette to take a pri-

vate look at Martin’s expert report. The

law provides that a judge may conduct an

in camera review of the certifying expert

opinion for good cause.

Burnette ruled there was no need for

him to examine the scope of the expert

opinion because he determined the cre-

dentialing claim fell outside the malprac-

tice sphere.

Burnette looked to language in the

Medical Malpractice Act defining “mal-

practice” and “health care.”“A cause of action for negligent creden-

tialing and privileging does not fit within

the bounds of this statutory language,”

the judge wrote.

The action was not based on “health

care” because the alleged negligent

credentialing and privileging acts by

Centra would have long preceded the

medical treatment provided to Martin,

Burnette said.

“Rather this tort action is based on

corporate negligence in the credentialing

and privileging process of physicians,”

the judge said.

“This Court holds negligent credential-

ing and privileging as a separate causeof action does not fall within the scope of

the Virginia Medical Malpractice Act and

therefore expert certification … is not

required for this particular part of the

plaintiff’s claim,” Burnette wrote.

Burnette overruled Centra’s motions

for in camera review and to dismiss.

“This holding should not be viewed

as relieving the plaintiff from other-

wise complying with the requirements

of the Virginia Medical Malpractice Act

with respect to his remaining claims

other than negligent credentialing and

privileging,” Burnette said.

A case to watch

Centra was represented by Daniel T.

Sarrell and Elizabeth G. Perrow of Roa-

noke. They did not respond to a request

for comment.

The Virginia Hospital & Healthcare

Association declined to comment on Bur-

nette’s ruling that a credentialing claim

was outside the scope of the malpracticestatutes.

“I am not in a position to comment on

this case or speak to the issue at this

time,” said VHHA vice president and gen-

eral counsel R. Brent Rawlings.

“We will likely monitor as the issue

progresses through the courts,” he said.

In the related case, Bowers said he

sought to intervene and to open the file

on Salvaggio’s dispute with Centra.

In that separate civil action, Salvaggio

claimed Centra sought to eliminate com-

petition by purchasing his practice and

then firing him without cause.

Centra won an order sealing the case

before filing its response to Salvaggio’sclaim.

Lynchburg Circuit Court Clerk Eu-

gene C. Wingfield confirmed an order was

entered on Oct. 29 “for the sealing of all

pleadings and other materials until fur-

ther order of this court.”

Bowers said he learned that, after he

sought to intervene in the case on behalf

of Martin, Burnette put a hold on the pro-

ceedings to allow Salvaggio and Centra to

mediate their dispute.

Online court records indicate Burnette

ordered the case stayed on March 8.

Malpractice | n continued from page 1

ing erratically; just be sure to documentthe thought process and actions.

4. A “last chance agreement” is a

possibility. Another similar option is re-quiring the employee to sign a last chanceagreement once caught violating com-pany policies. Again, the EEOC makesclear that this is not a requirement, butrather an option. Generally, under suchan agreement an employer agrees notto terminate the worker in exchange foran employee’s agreement to receive sub-stance abuse treatment, refrain from

further alcohol use, and avoid further

workplace problems. A violation of suchan agreement usually warrants termina-tion because the employee failed to meetthe conditions for continued employment.Counsel can help draft an ADA-compli-ance last chance agreement.

5. An employee can be fired if he or

she raises alcoholism for the first time

in the face of impending termination.

As noted above, an employer can imposethe same discipline that it would for anyemployee who fails to meet its standardsor who violates a consistently-applied con-

duct rule. So even if the employee raises

an unknown alcohol problem at time oftermination, the employer can still pro-ceed with the action if it would have beenimposed on a nonalcoholic employee.

However, if an employer intends to ap-ply some lesser form of discipline, and theemployee first raises alcoholism at thattime, reasonable accommodations (afterimposing the lesser form of discipline)should be considered. If the employeementions the alcoholism but makes noovert request for accommodation, ask ifthe employee believes an accommodationwould prevent further problems withperformance or conduct. If the responseis “yes,” or if the employee raises it of hisor her own accord during the disciplinary

meeting, begin an “interactive process.”

This process will help determine if an ac-commodation is needed to correct the prob-lem. The employer can ask the employeeand his or her health care provider (throughthe employee) about the connection betweenthe alcoholism and the performance or con-duct problem. The employee’s input can besought as to what accommodations may beneeded. A common reasonable accommoda-tion in these scenarios is a modified workschedule to permit the employee to attendan on-going self-help program, but the ulti-mate choice rests with the employer so longas it believes the proposed accommodationis designed to succeed.

Rich Meneghello practices law in

Portland, Oregon.

Alcohol abuse | n continued from page 6


12/12


medical practice sued under the Medi-

care Secondary Payer Act (MSP) because

State Farm refused to pay for the medical

services of its insured patient.

In general, the MSP provides a private

cause of action against the primary payer

(that is, the insurance company) for dam-

ages if the primary payer fails to provide

payment or reimbursement for payments

made by Medicare. The MSP statute wasenacted to make Medicare coverage sec-

ondary to any coverage provided by pri-

vate insurance programs, and the MSP

private right of action was added to en-

force Medicare’s status as secondary.

In this case, the insured patient had been

injured in an automobile accident, and the

medical practice filed a claim for approxi-

mately $26,000 for treatment that it pro-

vided to the insured. The insured was also

covered by Medicare, and the medical prac-

tice also submitted its claims to Medicare.

State Farm denied coverage on the ground

that the injuries resulted from the in-

sured’s preexisting condition. Notably, thebasis for State Farm’s denial had nothing

to do with whether the insured was eligible

for Medicare. Medicare made a conditional

payment of $5,000 to the practice.

In an earlier, separate case, the 6th

U.S. Circuit Court of Appeals, the feder-

al appellate court with jurisdiction for

Michigan, had ruled that medical provid-

ers cannot maintain a private right of ac-

tion under the MSP against group health

plans that deny coverage for any reason

other than Medicare eligibility. Curious-

ly, when that same appellate court three

years later considered the arguments in

Michigan Spine, it found that MSP reg-

ulations warranted limiting the earlier

ruling to lawsuits against group health

plans. Therefore, it ruled that a privatecause of action under the MSP may pro-

ceed against a non-group health plan,

such as State Farm, that denies coverage

on a basis other than Medicare eligibility.

Consequently, the Michigan Spine case

arguably opens two doors, albeit that one

door is open wider than the other. First,

medical practices can sue primary insurers

under the MSP and cite Michigan Spine

if they are not paid for providing treat-

ment to Medicare-eligible patients that

are covered under non-group health plans.

Second, medical practices can also now at

least argue that the Michigan Spine deci-

sion should be expanded to cover denials of

payment by group health plans, because al-

lowing different outcomes under the MSP

for group health plan and non-group healthplan denials is nonsensical.

Barry F. Rosen and John R. Paliga

practice law in Baltimore.

Suing doctors | n continued from page 3

fer confidential short term counseling,

substance use treatment referrals and

resources for health living as well asother services. Each program differs

and can be tailored to match the com-

pany’s needs and employer’s desire. Not

only do EAPs address mental health

but many also offer financial planning,

legal referrals and career counseling.

Additionally, EAPs offer a host ofworkplace resources that can help with

retention and attract quality workforce

candidates. Many programs are equipped

to advise employers on safety, communi-

cation and absence management. In re-

cent years, employers have accessed EAP

resources to assist them with adapting to

the needs of veterans. In times of crisis,

EAPs offer resources for handling layoffs

and other workplace stressors.

It is not always easy to get someone toaccess the resources that they need. The

first step is often as simple as starting

a conversation and showing interest. Be

prepared to listen non-judgmentally, of-

fer support and provide direction to the

resources available to help.

Jeffrey Berlant, MD, is medical di-

rector of Optum Idaho, a health care

company that manages the outpatientbenefits for the Idaho Behavioral Health

Plan for Idaho Medicaid members and

the Idaho Department of Health and

Welfare.

Mental illness | n continued from page 6

Visit the Virginia Medical LawReport website at vamedicallaw.com

2016 march virginia medical law report

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