MEDICAL LAW REPORT. Doctor on hold. Dentist regulation: one man is vindicated, another presses on

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1 Pre-Sorted Standard U.S. Postage Paid Baltimore, MD Permit No. 792 Address service requested Virginia Medical Law Report 10 Milk Street, Suite 1000 Boston, MA MEDICAL LAW REPORT V I R G I N I A Volume 5, Number 4 LEGAL NEWS FOR THE MEDICAL COMMUNITY JULY 2008 Doctor on hold Radiologist failed to get info to primary doc before death T BY PETER VIETH he family of a woman who sued a radiologist who failed to get word to her regular doctor about a life-threatening medical condition should have a second chance to try their medical-malpractice against him, the Supreme Court of Virginia decided. Evidence showed that the radiologist was put on hold and eventually hung up and used a fax machine to try to send the warning to the patient s primary care doctor. The treating doctor did not receive the report about the patient s dangerous blood clots until after the patient Dentist regulation: one man is vindicated, another presses on While one Virginia dentist celebrates his apparent vindication in a three-year struggle with the state Board of Dentistry, another plans to take his case to the Supreme Court of Virginia after rejection from the Virginia Court of Appeals in a case of alleged poor record keeping. The exonerated dentist, Dr. Farid A. Zurmati of Fairfax County, did more than simply rebut allegations during his regulatory battle with the Board of Dentistry. He went on the offensive, filing two lawsuits against the prosecutors that he claimed had become his persecutors. He also sued his original accuser for defamation. Although he began the contest facing allegations of dental negligence and verbal abuse in the workplace, by the time Zurmati s case reached the Court of Appeals, the only serious allegation concerned documentation of fees charged by Zurmati. The court found that it was not deceptive for Zurmati to list his customary fee as required on insurance forms, even though patients were informed only about the reduced fee that Zurmati expected to be paid based on his agreements with health insurers. That favorable ruling from the Court of Appeals in June led to an agreement by the state to drop the single remaining record-keeping allegation against Zurmati, according to his attorney. August McCarthy said that the deal calls for Zurmati to drop his lawsuits against state officials while the Board of Dentistry will update or remove records of its allegations from public access on the board s Web site. Every scrap of this has been or will be dismissed, McCarthy said. An assistant attorney general, Christy W. Monolo, confirmed that the case against Zurmati had been resolved, but she said that she could not provide details. Later, a spokesman for the Office of Attorney General said that several issues in Zurmati s cases were still pending and, therefore, the office would have no comment on the matter. The Board of Dentistry in 2005 accused Zurmati of two instances of improper dental treatment, one instance of verbal abuse to a patient, deceptive billing practices, and technical record-keeping violations. After an initial hearing, the board voted to put Zurmati on probation for 18 months and fine him $1,500. After a formal hearing, however, the board found evidence to support only the allegations relating to billing had died from complications of the clots. In its decision, the court was seeking to put the issue of causation before a jury properly. It found that a superseding negligence instruction was error. That s the legal import of Williams v. Le. The case carries a different meaning for radiologists and perhaps other physicians who provide information to primary doctors. One lawyer noted that radiologists will keep a copy of the Williams opinion taped on the wall by the telephone. They will make sure they have the conversation with a primary caregiver, she added. The radiologist s case is one of two medical malpractice cases decided on June 6, giving plaintiffs a string of 11 consecutive victories in medical malpractice appeals. The other case reinstates a jury See ON HOLD, on PAGE 13 Roanoke jury awards $3.5M for negligent bunion surgery BY PETER VIETH A Roanoke jury has returned a $3.5 million verdict for a woman who claimed she was disabled by negligent bunion surgery. The plaintiff, a Clifton Forge resident, blamed her podiatrist for chronic pain so severe that an orthopedist amputated her toes in an unsuccessful effort to relieve the pain. A review of recent outcomes in podiatric surgery cases fails to show any recovery near the range of the Roanoke verdict. I ve certainly never heard of anything close to that [amount], said Carlyle R. Wimbish III, a Richmond attorney who has defended many podiatric cases. The verdict exceeded the plaintiff s original demand of $3 million. The plaintiff is unlikely to ever see the full amount. The Virginia medical malpractice damages cap would reduce the verdict by more than half. The bunionectomy was performed in March of 2003: the applicable recovery limit for that date is $1.65 million. The special damages exceeded that cap amount. Plaintiff s lawyer Patrick T. Fennell said that, with past and future medical expenses and lost See DENTIST, on PAGE 14 See BUNION, on PAGE 13 INSIDE MEDICAID Payments pulled for poor records Page 5 OFFICE PRACTICES Managing the flow of spam Page 6 VERDICTS Disc surgery solves problem, causes another Page 9 ALSO INSIDE: Medication errors prompt lawsuits page 4.

2 2 Virginia Medical Law Report July 2008 Cite this page 5 M.L.R. 50

3 Cite this page 5 M.L.R. 51 July 2008 Virginia Medical Law Report 3 The Supreme Court speaks: Preemption in medical device litigation BY KATHRYN KRANSDORF KATHRYN KRANSDORF For decades, the Food and Drug Administration has been entrusted with the task of ensuring the safety of the pharmaceuticals and medical devices physicians rely on to keep Americans healthy. Yet, even amidst criticism of the FDA s ability to adequately carry out this mandate, the U.S. Supreme Court has forced physicians and patients to place ever greater confidence in the FDA s ability to protect their health and safety. Earlier this year, the Supreme Court held that the Medical Device Amendments of 1976 (MDA) preempt common law tort claims challenging the safety or effectiveness of medical devices approved by the FDA. And it is poised to make a similar decision with respect to prescription drugs during its term. As a greater percentage of the population comes to rely upon medical devices, it is nearly certain that the number of patients affected by defective medical devices will grow as well, 1 making this apparent trend toward protecting manufacturers from these claims one that must be carefully watched. Medical Device Amendments of 1976 Following a series of medical device failures during the 1960s and 1970s, the Federal Food, Drug, and Cosmetic Act was amended to require FDA approval of medical devices. 2 Prior to that time, the task of regulating of medical devices largely fell upon the states. 3 Passed in 1976, the MDA set out a regulatory scheme applicable to medical devices, which includes varying levels of oversight by the FDA depending upon the type of device being considered for approval to enter the marketplace. 4 The MDA also include a preemption provision which prohibits states from establishing requirements that are different from or in addition to those found in the MDA that relate to the safety or effectiveness of medical devices. 5 This preemption provision is addressed in more detail in 21 C.F.R , which explains that State or local requirements are preempted only when the [FDA] has established specific counterpart regulations or there are other specific requirements applicable to a particular device under the [MDA], thereby making any existing divergent state or local requirements applicable to the device different from, or in addition to, the specific [FDA] requirements. 6 This regulation also provides examples where preemption does not apply, including requirements of general applicability where the purpose of the requirement relates either to other products in addition to devices... or to unfair trade practices in which the requirements are not limited to devices. 7 Despite the language of this regulation, the Supreme Court recently found that the MDA s preemption provision applies not only to statutes or laws passed by the states, but to state common law claims as well. The result of this decision is the severing of virtually all opportunities for consumers to seek redress after being injured by an FDA-approved medical device. Riegel v. Medtronic Inc. Medtronic Inc. marketed the Evergreen Balloon Catheter a device that received premarket approval from the FDA. 8 Charles Riegel received an Evergreen Balloon Catheter when he underwent coronary angioplasty. 9 Despite a warning against inflating the Evergreen Balloon Catheter beyond eight atmospheres, Riegel s doctor inflated it to 10 atmospheres, and the balloon ruptured. 10 Riegel developed a heart block, was placed on life support, and underwent emergency coronary artery bypass grafting surgery. 11 Riegel and his wife sued Medtronic, alleging violations of New York common law. This lawsuit brought to the forefront the question of whether tort duties imposed by state common law constitute requirements under the MDA s preemption provision, such that lawsuits making such allegations are barred by the MDA. 12 The Riegel court held that they did. The Supreme Court was not entering completely unchartered territory when it took on this issue in the Riegel matter. In other contexts, the court had previously held that statutory provisions preempting state requirements preempt state common law duties. 13 In explaining why common law duties constitute requirements just as statutes and regulations do, the Riegel court stated that, state tort law that requires a manufacturer s catheters to be safer, but hence less effective, than the model the FDA has approved disrupts the federal scheme no less than state regulatory law to the same effect. 14 The court gave a practical explanation for this holding as well. According to the Riegel court, juries do not have the opportunity to see the benefits of more dangerous designs because in court the jury is shown only the costs or risks associated with a medical device. 15 On the other hand, the FDA may approve a device that presents great risks if that device also offers significant benefits when compared to the available alternatives. 16 If the MDA did not preempt state common law causes of action, the Riegel court explained, one single jury would be given greater power to set standards than the administrative or lawmaking process of that state a distinction that it called perverse. 17 See DEVICES, on PAGE 14 Decision bars woman s surgical device claim BY PETER VIETH A woman who claims that a surgical device malfunctioned during an operation, resulting in severe damage to both her uterus and her colon, may be prevented from suing the manufacturer of the device. A February decision by the United States Supreme Court bars product liability claims against the makers of most medical devices. In that decision, the court reasoned that federal regulations override state law, including tort claims. (See article, above). Following that high court decision, Senior U.S. District Judge Jackson L. Kiser this month dismissed the major claims in the lawsuit filed by Lois Lorraine Adkins. The Pennsylvania woman sued Cytyc Corporation, alleging that she was injured permanently in a procedure using its NovaSure device, designed to correct heavy menstrual bleeding. As explained on Cytyc s Web site, the NovaSure device uses radio frequency energy to permanently remove the lining of the uterus, reducing or eliminating future bleeding. Prior to that procedure, according to Adkins suit, the device is designed to perform a test to ensure that the uterus is strong enough to tolerate the procedure. The suit alleged that, in a pre-surgical test, the device improperly gave a green light for surgery it failed to show conditions that should have precluded the procedure. Adkins doctor went ahead with the surgery, resulting in a thermal burn to her colon, according to the suit. Several additional surgeries allegedly were required, including a hysterectomy and a colon resection with a colostomy. Adkins lawsuit alleged both that the device was faulty and that a manufacturer s representative, who was present during the procedure, failed to ensure that the device was operating correctly and that the gynecologist was following appropriate procedures. Cytyc s lawyers responded by pointing to the recent Supreme Court decision, Riegel v. Medtronic, and argued that Adkins product defect claims were preempted by federal regulation. Judge Kiser agreed. He threw out those portions of the lawsuit relating to the design, manufacturing, and labeling of the device. As the judge remarked in a footnote, the main focus of the suit was on a standard products liability negligence theory, and that theory was effectively destroyed by the intervening Riegel decision. Nevertheless, Kiser ruled that Adkins could go ahead with her claims involving the manufacturer s representative. Because those allegations were not as thoroughly described as the product liability claim, Kiser allowed Adkins lawyers to file an amended complaint to flesh out the case against the representative. Kiser warned, however, that Adkins may shoulder a heavy burden in building a case solely on the actions of the manufacturer s representative. Adkins lawyers will have to show that negligent instruction by the representative, rather than any faults in the device, was the more likely cause of the injuries. One of Adkins lawyers, W. Wirt Brock of Roanoke, said that he was working on an amended complaint and hoping to prevail. We plan to make it stick, he said. Brock acknowledged that the new legal landscape for medical product claims makes it tough for injured patients. He said the Adkins legal team will be closely watching another preemption case now pending before the U.S. Supreme Court that could give liability protection to pharmaceutical makers The Adkins case is scheduled for a jury trial in Danville beginning Dec. 8. trust the healthcare attorneys who always stick with you Your reputation is your livelihood. When it's challenged, you want legal representation you can trust to stick with you until the matter is resolved. Our lawyers make your legal points with intensity and skill. Call Randy Wimbish at (804) and he'll introduce you to our healthcare team. Michael T. Marr Mikhael D. Charnoff Colleen M. Gentile L. Thompson Hanes Margaret F. Hardy Heather Austin-Jones Paige A. Levy Joel M. McCray Robin A. R. McVoy Kenneth T. Roeber M. Pierce Rucker J. Jonathan Schraub Carlyle R. Wimbish, III RICHMOND - BLACKSBURG - FREDERICKSBURG - MCLEAN - RESEARCH TRIANGLE, NC 801 E. Main Street, Post Office Box 1998, Richmond, Virginia (804) , Fax: (804)

4 4 Virginia Medical Law Report July 2008 Cite this page 5 M.L.R. 52 Medication errors are prescription for lawsuits BY SYLVIA HSIEH DOLAN MEDIA NEWSWIRES Celebrity cases such as Heath Ledger s death earlier this year from mixing prescription drugs and Dennis Quaid s newborn twins receiving an adult dose of a blood thinner only scratch the surface of a growing number of lawsuits over medication errors. The suits include claims against pharmacies for errors in filling prescriptions, doctors and hospitals for mistakes in dosage, nursing homes for giving the wrong pills to patients and manufacturers for labeling. A lot of errors happen. People are rushed. Pharmacists, hospitals, doctors and nurses have too many patients and not enough time, said Karen E. Terry, a Florida lawyer who recently won a $25 million verdict against Walgreens for improperly filling a prescription, and has two other pending cases against Walgreens. Medication errors are endemic in nursing homes, said Steven Levin, a Chicago medical malpractice attorney who has handled a number of cases against nursing homes and pharmacies. I don t even think we ve seen the tip of the iceberg. A recent study by the Harrison School of Pharmacy at Auburn University, found that dispensing errors are a problem on a national level, and estimated that 51.5 million prescription errors occur during the filling of 3 billion prescriptions each year. The rise in suits is fueled in part by the explosion of new drugs on the market. Indianapolis lawyer Nathaniel Lee, who handles about 50 cases a year involving medication errors, said the number of generic brands is a factor because now there are many different versions of the same drug with similar packaging. In addition, aggressive direct-toconsumer marketing has popularized drugs and put pressure on physicians to prescribe them. The public has a perception that there s a drug for everything and physicians feel they are not really treating unless they prescribe a drug, said Douglas Peters of Detroit. Peters has filed a suit against Walgreens over a medication mix-up. Roseann Termini, a professor at the Villanova University law school, said directto-consumer advertising could arguably lead to greater responsibility being placed on manufacturers and pharmacies for medication errors. Here s a look at the various claims that are arising: Pharmacy errors Some recent verdicts against Walgreens suggest that claims for misfilled prescriptions are on the rise. In October 2007, a jury in Arizona awarded $6 million to the family of a high school coach in a wrongful death suit against Walgreens for failing to warn him that two pain medications created a deadly TABLE OF CONTENTS 3 The Supreme Court speaks: Preemption in medical device litigation combination. In September 2007, a Florida jury awarded $28.5 million to the family of a woman who was given a 10 mg dose of the blood thinner Coumadin by Walgreens instead of the 1 mg dose that she was prescribed. And in October 2006, a Chicago jury ordered Walgreens to pay $31 million to the family of a man who died after being given insulin pills instead of gout medication. The trend in this type of error is going up in direct proportion to big-box pharmacies using production quotas and relying on pharmacy technicians instead of pharmacists, said Peters. Common pharmacy malpractice claims include negligent filling of prescriptions, inadequate training and supervision of pharmacists and staff, and the creation of financial incentives that create a conflict of interest between pharmacists and patients. The pharmacy technician s job is to put pills in the bottle and the pharmacist is supposed to validate that the pills in the bottle correspond with the prescription. Pharmacists are supposed to validate 60 bottles per hour. That s one per minute, so they have financial incentives to meet productivity goals, said Peters. In addition, every state has its own regulations for pharmacy duties, such as a duty to counsel that in some states covers all prescriptions, including refills, and can provide a rebuttable presumption of negligence if violated. Over the last 15 years, the responsibilities of pharmacies have greatly increased, said David Work, former executive director of the North Carolina Board of Pharmacy. In North Carolina and many other states, pharmacies are required to provide not only counseling but drug use review on every dispensing, including refills, and that probably isn t getting done with increases in prescription volume. Lawyers note that pharmacies have insisted on confidentiality agreements for the many settlements they have reached in these types of cases. Health care providers Med-mal claims against hospitals for giving patients the wrong medication or incorrect dose are also on the uptick. Doctors are forced to see 50 to 60 patients, are getting paid very little by Medicaid, and they are going to make mistakes. And nurses aren t given as much training as they should be given, said Terry. Terry is currently representing a patient against both Walgreens and a doctor over a prescription for different doses on alternating days which would have required the patient to break a pill into fifths or eighths. It was ultimately misfilled by Walgreens, resulting in a dosage five to 15 times what was prescribed. Another source of error involves misunderstanding of physician handwriting by those administering the medication, and the failure to call the doctor to confirm the 3 Decision bars woman s surgical device claim 4 Medication errors are prescription for lawsuits 5 Payments pulled for poor records prescription. Nursing homes Medication errors also occur in nursing homes, in some cases due to overburdened staff. Combine insufficient staff with older people taking multiple medications. Anything requiring monitoring or testing is a scary situation when done in a long-term care facility, said Levin. He has handled several cases involving Coumadin dosages which he says are routinely screwed up by nursing homes and will cause cerebral hemorrhaging or stroke in the wrong dosage. He added that insulin Accu-chek doses, which must be reported to physicians, are another source of errors at long-term facilities. Product liability claims Another legal claim is that the drug manufacturers labeling was negligent. Quaid and his wife, for example, have sued Baxter Healthcare Corp. alleging that the packaging and labeling of two similar drugs was unreasonably dangerous, resulting in their newborn twins being administered a blood thinner 1,000 times the dose ordered. Baxter manufactures Hep-lock in 10-ml vials and Heparin in 10,000-ml vials, both in bottles with a blue background. The complaint alleges that Baxter failed to recall Heparin after the company became aware of other infant deaths due to the mix-up, failed to change the drug packaging or warn health care providers of the easily-confused packaging. Lee represents four families of babies, three of whom died from the same mix-up between Heparin and Hep-lock. He has not filed suit yet, but he has met with Baxter s attorney to discuss alternative packaging that would make one of the bottles pink. He is pursuing negligence claims against the hospital in those cases. This article previously appeared in Lawyers USA, another Dolan Media publication. V I R G I N I A MEDICAL LAW REPORT 707 East Main Street, Suite 1750 Richmond, VA LAWS FAX: Publisher & Editor-in-Chief Paul E. Fletcher, ext Executive Editor Deborah Elkins, ext News Editor Alan Cooper, ext News Editor Peter D. 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POSTMASTER: Send address changes to Virginia Medical Law Report, Circulation, 10 Milk Street, Suite 1000 Boston, MA Virginia Lawyers Media All Rights Reserved Photocopying and data processing storage of all or any part of this issue may not be made without prior consent. 6 How to manage the tsunami of spam 7 Verdicts & Settlements

5 Cite this page 5 M.L.R. 53 July 2008 Virginia Medical Law Report 5 Payments pulled for poor records BY DEBORAH ELKINS A Charlottesville youth psychiatric facility has had nearly $800,000 in Medicaid payments pulled back by the state because the residential center did not adequately document its treatment of troubled teens. After a 2006 audit of payments made under contract with the Whisper Ridge Behavioral Health System, the Virginia Department of Medical In the court s view, the agency could set and enforce its documentation standards before paying for the treatment. Assistance Services determined the residential center had been overpaid $761,136. On July 9, Richmond Circuit Court Judge Melvin R. Hughes upheld disallowance of the payments in Psychiatric Solutions of Virginia Inc. v. Finnerty. The dispute between Whisper Ridge and the state agency that administers Medicaid payments centered on the Therapeutic Group Activities Forms used by the center to document the 21 distinct treatment interventions it had contracted to provide to each resident each week. According to the Richmond court opinion, the DMAS Psychiatric Services Provider Manual requires care providers to maintain records that will fully and accurately document the nature, scope and details of the health care provided. Whisper Ridge used Therapeutic Group Activities Forms with preprinted boxes for Current Events, Men s or Women s Issues, Health Group, or Alternate Group. Each form contained boxes that could be checked to show whether patients had completed 0-30 min, more than 30 minutes, min, and were Active, Minimal or None. DMAS faulted the forms for not being child specific, not providing how the session activities related to patient-specific treatment goals, and not stating the specific duration of the session and level of participation by the child. The agency also found the forms did not all contain dates and signatures of the persons who conducted the planned interventions. The judge acknowledged that the agency did not question the nature of the services provided by Whisper Ridge. But he said that under the standard of review for agency action, it was not unreasonable to find Whisper Ridge s reporting documentation system is wanting when viewed against the standards set out in the agency manual. The treatment center argued that it had substantially complied with the agency s expectations for proof that it met the 21-treatmentper-week standard required under its Medicaid contract. But the judge said the agency had the power by statute to authorize the kind of documentation specified. In the court s view, the agency could set and enforce its documentation standards before paying for the treatment. Keep your finger on the pulse. The power to represent. The people to make it happen. Get the state s best source for medical news and information. V I R G I N I A MEDICAL LAW REPORT As one of Virginia s largest law firms, we remain committed to providing our clients with effective, efficient and innovative solutions to meet their legal needs. Business Corporate Product Liability Defense Intellectual Property Richmond Employment Workers Compensation Commercial Law/Litigation Health Care Regulatory Medical Malpractice Defense State Board of Health Professions & Licensing Norfolk Charlottesville

6 How to manage the tsunami of spam 6 Virginia Medical Law Report Guest Column Does your work day begin with a thousand taps of the Delete key to remove the flood of spam that invades your inbox? Are you getting worn down trying to sort the important s from the torrent of junk? Are you ready to delegate triage to a staff person? Then let s see what we can do to alleviate this growing problem. What is spam? It is unsolicited commercial electronic junk mail. It is stuff that you don t want to read. It may also contain a virus or other malware that can infect your computer, your network and those with whom you transact business by . I am often asked, How did these spammers get my address? That s easy! You provide your with every order you place to purchase products or services online. You put your address on your Web site, and at the end of every you send. Your is listed on every social or business networking site you join, such as LinkedIn, Plaxo, Facebook, Lawguru, etc. The evildoers have software tools called bots which scour the Internet looking for addresses and stuffing them into lists to be bought, sold and traded among the spam giants. All the bot does is look for addresses as it searches. It is relatively easy since has certain consistent formatting. There s a name at the front, symbol, and an ending such as.com,.net,.edu,.org, etc. It s about the same as looking for a phone number or Social Security number. It s easy to recognize the known formatting for those items. Tools and tips We re not going to be able to completely stop spam. It s a bit like catching a cold July 2008 no matter how many times you wash your hands to avoid germs, you re still going to get sick from time to time. But let s consider some tools and techniques to manage spam: First, never reply to spam. All that does is BRUCE confirm that the spammer has reached a DORNER valid address. Please note that this is not the same as sending an unsubscribe to an list which you know to be valid. If you want to stop getting the monthly newsletter from your favorite hobby site, certainly send the unsubscribe request. However, if you receive an that is not from a vendor known to you, be very careful before you reply. Second, it is likely that your Internet Service Provider (ISP) offers a free spam filtering service. They pre-screen your looking for known spam. Just as the spammers use bots to look for addresses, the good ISPs have tools to look for spam. They filter it out and put the junk into a separate mailbox for your scrutiny. These filters aren t perfect. They do make mistakes. I ve suffered from what are known as false positives. This is nothing more than the spam filter making a decision that an from a client is spam and putting it in the segregated spam mailbox. And, yes, I ve incurred the distress of a client or two who calling a day later inquiring as to why I had not responded to their s. Sure enough, when I check through my hundreds of spam messages in the middle of the electronic haystack I find the important message. So from time to time you do have to scan the spam box for valid s. Many of the ISP filtering services permit you to create a white list of known con- Cite this page 5 M.L.R. 54 tacts so that the spam filter will automatically pass s from those contacts directly into your regular inbox. Likewise, if you have certain businesses or people with whom you do not wish to have contact, you may be able to add their address to a black list, which will automatically stuff those s into the spam folder. Virus concerns Spam can be more than an annoyance. It can be downright fatal to your computer. A virus or other malware can be attached or embedded within spam. A recent article in eweek noted that, According to researchers at Symantec, one in every 617 spam messages now contains malicious code. Therefore, it s a good idea to configure your program so that it does not automatically open and display the full contents of every without your permission. How does an infect your computer? Here s an example. The Subject line of the says, Update from the Supreme Court. You assume it s valid and don t notice that the ends in.ru and not the usual.com. That means the is from Russia and there are a lot of spammers sending evil stuff from that region. You click and see there s a document attached. Of course you want to read it. When you open it there s only one line of readable text and you now know it was a waste of time. However, what you didn t notice was that this installed a little bit of soft- ware on your computer. All of a sudden your computer slows down. It takes a long time to open your word processor, save a file or access your time and billing system. This means you computer has been captured by the attached malware. It is now using your computer and your address to spew more spam to everyone in your address book. And those people receiving the spam and malware assume it is valid since it came from you. So be sure to keep your virus protection software installed, running and updated! It will reduce this type of risk significantly. Online services Another method to reduce spam is to use an on-line service. A well known name in this field is Postini. In fact, they were so well known and so well respected that Google bought them. Postini is now the engine behind the massive Google Gmail service. The huge volume of processed through Google Gmail gives them a never ending supply of data to continuously update their filtering process to provide state-of-the-art protection. Spam and the common cold will never be cured. But we can take steps to reduce our exposure to both and to live a more healthy life in both the real and the electronic world. This article originally appeared in Lawyers USA, another Dolan Media publication. Get your medical information online. Coming Soon! The NEW with features, articles, stories of interest and our Archives!

7 Cite this page 5 M.L.R. 55 July 2008 VERDICTS & SETTLEMENTS Virginia Medical Law Report 7 Woman wins dental malpractice claim $175,000 Verdict Plaintiff, a middle-aged white female, sought treatment at a dentist s office regarding custom-fitting for dentures and other issues. Plaintiff had prior high blood pressure and other health issues and disclosed the same to defendant Type of Action: Dental malpractice, intentional infliction of emotional distress, negligent infliction of emotional distress, false imprisonment Injuries Alleged: Oral ulcer, exacerbation of high blood pressure, exposure to risk of serious injury or death Name of Case: Parrish v. Affordable Dentures Dental Laboratories Inc., et al. Court: Chesterfield County Circuit Court Case No.: CL06-14 Verdict Date: April 18, 2007 Tried Before: Jury Name of Judge: Herbert C. Gill Jr. Verdict/Settlement: Verdict Amount: $175,000 Plaintiff s Attorneys: Darren Marshall Hart and Thomas Woodward Ashton, Richmond dentist. Defendant dentist managed a local practice affiliated with a national management company in the business of setting up and managing such dental practices. Defendants engaged in a practice of mass dentistry, calling patients back into the operating area as a group, seating them in open stalls, sequentially delivering anesthesia from stall to stall, and then performing surgery. Defendant dentist used insufficient topical anesthesia prior to injecting the plaintiff with local anesthetic. Plaintiff cried out in pain during the injection and grabbed defendant dentist s arm, but defendant dentist continued to administer local anesthetic by injection. Defendant dentist examined plaintiff, performed oral surgery on the plaintiff without obtaining written consent for such surgery, and failed to diagnose the plaintiff s advanced periodontal disease or tooth decay. On the same day as her surgery, plaintiff was given final custom dentures which did not fit properly, causing plaintiff an oral ulcer. Plaintiff returned to defendant dentist to have dentures fixed, and allegedly was physically restrained from leaving the practice while office staff attempted to force plaintiff to sign a release form. Plaintiff pushed her way free of defendant dentist s assistants and left the practice. Plaintiff pleaded 11 counts against the dentist, the dentist s practice, the dentist s managing company and the national company assisting with management of the dentist s office. Plaintiff claimed that the dentist and the practice negligently treated her, including but not limited to that their failure to diagnose and/or to treat her advanced periodontal disease and tooth decay exposed her to substantial risk of death or serious injury. Additionally, Plaintiff claimed that the defendants provided medical treatment without informed consent. Plaintiff also claimed severe emotional distress, and resulting physical injury, as a consequence of defendants intentional and negligent acts. Defendants demurred in part to the complaint, claiming in part that the plaintiff failed to allege sufficient physical injury to substantiate a claim for negligent infliction of emotional distress. Defendants also claimed that the plaintiff alleged acts which did not rise to the level of medical malpractice. The trial court overruled the demurrer as to all counts. At a two-day jury trial, each side presented extensive expert testimony about $150,000 Settlement A surgical towel was inadvertently left in the plaintiff s body at the completion of abdominal surgery. Its presence was discovered during a routine physical examination some six weeks later and was thereafter surgically removed. The plaintiff was left with a permanent surgical scar but no permanent functional impairment. Settlement was reached with the hospital at which the initial surgery was performed. [08-T-030] the standard of care. Plaintiff also presented evidence of costs incurred as well as costs to treat her previously untreated conditions, which were exacerbated by the defendants actions. At the conclusion of the plaintiff s evidence, many of the outstanding counts were either dismissed or withdrawn, and the national practice management company was stricken as a defendant. Counts of medical negligence (dental malpractice), false imprisonment, intentional infliction of emotional distress, and negligent infliction of emotional distress were sent to the jury. Jury returned a verdict in the amount of $175,000 in favor of the plaintiff and against defendant dentist and dentist s practice. [08-T-072] Towel left in body during abdominal surgery Name of Case: Confidential Court: Confidential Awarded/Settled: Settled Amount: $150,000 plus a waiver of hospital charges for second surgery Attorney for Plaintiff: Robert B. Adams, McLean

8 8 Virginia Medical Law Report July 2008 Cite this page 5 M.L.R. 56 Delivery video supports brachial plexus claim $1,550,000 Verdict On May 24, 2001, after delivery of the baby s head, a shoulder dystocia was encountered involving the left anterior shoulder. Several attempts were made to deliver the shoulders. The baby was delivered less than two minutes after the delivery of the head. The infant suffers from a permanent brachial plexus injury. A video of the delivery was made by the child s father, which plaintiffs experts testified contradicted the delivery note dictated by the defendant after the delivery. The physician failed to properly utilize appropriate maneuvers in the delivery to minimize the risk and degree of injury to the infant. During her multiple attempts to deliver the infant, she used excessive lateral traction causing severe and permanent injury to the infant s brachial plexus nerves. [08-T-083] Surgery for colon cancer botched in 79-year-old patient $500,000 Settlement During a routine colonoscopy, doctors discovered the 79-year-old plaintiff had an atypical polyp of the sigmoid colon with the possibility of it being cancerous. The polyp was removed and sent for biopsy. Plaintiff underwent a low anterior resection with an end-to-end anastomosis to remove the cancerous polyp. While recovering at home, the plaintiff noted feces discharging from her vagina. Upon evaluation, defendant surgeon noted obvious recto-vaginal fistula. Part of the posterior wall of the vagina was probably caught in the stapling device. Plaintiff s subsequent hospitalization required no food by mouth, causing subsequent fluid and electrolyte imbalances and malfunction of her kidneys. During the redo-anastomosis, it was discovered the plaintiff s rectum had been stapled to the vagina during the initial surgery, requiring an ileostomy which was not closed until ten months later. Plaintiff suffered several subsequent hospitalizations for acute renal failure and wound management. As a consequence of her treatment, the plaintiff is now in Stage 4 (severe chronic) renal failure. At her current VERDICTS & SETTLEMENTS Injuries Alleged: Erb s palsy/brachial plexus injury following shoulder dystocia Name of Case: Rilee Booth, an infant by Michelle Booth and Christopher Booth, her parents and next friends, and Michelle Booth and Christopher Booth, individually v. Kathy O Connell, M.D., and Peninsula Women s Care PC Court: Newport News Circuit Court Case No.: CL T-03 Date: April 18, 2008 Tried Before: Jury Name of Judge: Walter J. Ford Verdict/Settlement: Verdict Amount: $1,550,000 Special Damages: $25, past medicals, life care plan with total future medicals of $24,510 Insurer: MAG Mutual Plaintiffs Attorneys: Lisa P. O Donnell and Amberley G. Jochens, Norfolk rate of renal failure, the plaintiff can expect to be on dialysis within 1.5 years. Prior to surgery the plaintiff already had renal insufficiency. [08-T-069] Injuries: During end-to-end anastomosis surgery on colon to remove polyp, plaintiff had wall of her vagina stapled to her rectum due to operator error of surgical stapling device, resulting in needed redo of anastomosis and for ileostomy which was not closed for 10 months. Subsequent treatment and infections caused worsening acture renal failure, leaving Plaintiff in end stages of renal failure and future need for dialysis. Name of Case: Confidential Court: Confidential Verdict or Settlement: Settlement Date: Feb. 5, 2008, by mediation Special Damages: Past related medical bills $238,972; future expenses $144,208 Settlement Amount: $500,000 Plaintiff s Attorney: Charles J. Zauzig, Woodbridge Complications arise from serious ear infection $2,200,000 Verdict Get medical information online. Medical news and information? Coming Soon! The NEW V I R G I N I A MEDICAL LAW REPORT Name of Case: Alphonzo W. Johns v. Dennis C. Fitzgerald, M.D. and Capital Ear Group, Chartered Court: D.C. Superior Court Case No.: Verdict or Settlement: Verdict Amount: $2,200,000 Name of Judge: Lynn Leibovitz Date: April 23, 2008 Plaintiff s Attorneys: William E. Artz and Andrew J. Waghorn, Arlington The plaintiff, age 72, was referred to the defendant, a specialist in neurotology and otology for ear pain and drainage. The defendant correctly diagnosed the condition as necrotizing otitis externa (NOE), a serious infection that invades ear structures, cranial nerves and bone. If left untreated, this condition can be fatal. It arises in elderly diabetics with immune systems that have been compromised. The appropriate treatment for this condition is a minimum of six to eight weeks of oral antibiotics (Ciprofloxacin is the drug of choice). The defendant initially prescribed 10 days of Cipro and changed his diagnosis to mastoiditis, a condition requiring surgery and topical antibiotic ear drops. The plaintiff was never placed back on oral antibiotics until the infection spread to his skull, throat and the cranial nerves controlling swallowing, taste and facial muscles after the plaintiff was hospitalized under the care of other health care providers. The plaintiff required three hospitalizations, the insertion of a feeding tube and dialysis (the plaintiff had kidney impairment and went on dialysis three years sooner than otherwise would have been required). Plaintiff lost 25 pounds because he could not swallow. His third hospitalization was at Johns Hopkins, where family insisted he be sent. There, he was placed on the correct regimen of treatment and began to recover. The plaintiff had a feeding tube in place for 26 months. Upon removal of the tube, his swallowing was still impaired, but he could eat soft food and liquids. He has a chronic pooling of mucous in his throat as well as a chronic cough. The plaintiff has otherwise recovered from his infection. He has been married for 46 years, has two adult children and has lived in the same house for 71 years. The defense argued that the plaintiff had a chronic middle ear infection and the treatment was appropriate. Defendants insurance carrier, Pro Assurance, made no offer. [08-T-076] corporate law

9 Cite this page 5 M.L.R. 57 July 2008 Virginia Medical Law Report 9 VERDICTS & SETTLEMENTS Disc surgery solves one problem, creates another $650,000 Verdict Eric M. Garver, M.D., a spine surgeon in Bridgeport, Conn., traveled to Richmond in April 2005 to undergo surgery by Dr. Hallett H. Mathews, who installed a Maverick artificial disc device at the L5- S1 level of Dr. Garver s spine. The device consists of two metal plates that fit into the patient s disc space with a ball and socket between them, which is intended to maintain the natural mobility of the disc as an alternative to traditional spinal fusion. A fragment of bone and disc the size of an olive was retrieved from Dr. Garver s spine two weeks after the Mathews surgery by a neurosurgeon in Bridgeport, Conn. That surgeon, Dr. Patrick Mastroianni, testified at the trial that he found the fragment pressing against the nerve root. Removal caused some relief of Dr. Garver s symptoms, but he ended up with a chronic pain syndrome that is poorly controlled even taking multiple drugs every day. His previous condition, with back pain and pain going into his left leg, was cured by Dr. Mathews surgery. At the time of the surgery, Dr. Mathews was a surgeon in private practice who ran one of 32 sites in the United States at which the Maverick device was inserted into selected patients. He also was the principal U.S. investigator for the manufacturer s application to the Food and Drug Administration. The device is still considered experimental while the Medtronic application to the FDA is pending. According to testimony at trial, Dr. Mathews received consulting fees from Medtronic of around $700,000 in 2004 and 2005, although he was not paid anything for the clinical trial itself. Dr. Mathews testified that he gave up his surgical practice at the end of 2006 to work full-time for Medtronic. His current position is Vice President Medical Affairs for Medtronic Spine and Biologics Division in Memphis, Tenn. Mathews is a former member of the board of directors of the North American Spine Society, a group of surgeons who specialize in spine surgery. Judge T.J. Markow, who heard three days of evidence in a lawsuit brought by Dr. Garver, issued a written decision in which he found that Dr. Mathews had violated the standard of care in preparing the disc space for insertion of the Maverick artificial disc. The standard for the surgery, written by the defendant himself and other spine surgeons, required that the disc space be meticulously cleared of materials that might be driven into nerves behind the disc space by insertion of the artificial disc, the judge wrote. In the Garver surgery, Dr. Mathews, while inserting the artificial disc, drove material from the disc space into the patient s S-1 nerve root on his right side. This caused permanent injury to the nerve with pain and difficulty using the right leg. [08-T-084] Injuries Alleged: Chronic pain syndrome Name of Case: Garver v. Mathews Court: City of Richmond Circuit Court Case No.: CL Date: April 25, 2008 Tried Before: Judge Name of Judge: T.J. Markow Verdict/Settlement: Verdict Amount: $650,000 Plaintiff s Attorneys: Patrick Malone, Washington, D.C.; Thomas Albro and Lee Livingston, Charlottesville The Only Effective Prescription for healthcare professionals suffering from anxiety secondary to legal matters Photos? If you have any photos of evidence to accompany your Verdicts & Settlements Reports please submit them to: Dedicated to serving the legal needs of health care providers Sarah Rodriguez Virginia Lawyers Media 707 East Main Street, Suite 1750 Richmond, VA or by attachment to 9200 CHURCH STREET SUITE 320 MANASSAS VA

10 10 Virginia Medical Law Report July 2008 Cite this page 5 M.L.R. 58 $900,000 Settlement This was a podiatric medical malpractice case in which the plaintiff, then age 53, had a portion of her right forefoot amputated (transmetatarsal amputation) because the doctor s negligent treatment of an infected diabetic foot ulcer that had developed on the ball of the plaintiff s right foot. Plaintiff appeared at the podiatrist s office on Sept. 1, 2005, after having been referred there by her primary care physician. The ulcer had become infected and had an abscess. During the initial examination, the physician noted that the VERDICTS & SETTLEMENTS Nurse admits exceeding scope of practice $1,400,000 Settlement Plaintiff s decedent was a long-haul truck driver. He started having shortness of breath and noticed swelling in his face and ankles. After dropping off his load, decedent went to the emergency room to get checked out. While being examined by the emergency room nurses, decedent explained that he had sleep apnea and that he was taking medication for high blood pressure. Decedent was admitted to a telemetry bed. The next day, the decedent was given breathing treatments as it was suspected that he had COPD (chronic obstructive pulmonary disease). Decedent developed frequent premature ventricular contractions, and was evaluated by a cardiologist. Decedent s sleep apnea and orthopnea, morbid obesity, cardiomyopathy, tobacco use, and acute onset of congestive heart failure (CHF) were noted in his chart. Although decedent was receiving medications to slow down his heart rate, defendant doctor felt that decedent would benefit from implantation of a pacemaker as a backup in case the medications slowed decedent s heart rate too much. Defendant doctor inserted a single chamber pacemaker, but admitted that he did not perform a proper test to insure that the lead wires were securely attached to the internal pacemaker. Decedent was experiencing pain after the procedure and was given Tylenol #3 Name of Case: Confidential Court: Confidential Settlement: $1,400,000 Mediator: John OBrion Plaintiff s Attorneys: Paul R. Thomson III, Roanoke; Harold R. White, Wichita Falls, Texas Settlement Date: August 2007 and a total of 8 mg morphine between 7:30 p.m. on 3/9/04 and 5:30 a.m. on 3/10/04. Defendant doctor evaluated decedent at approximately 8:30 in the morning on 3/10/04, and planned on discharging him if the pacemaker check was normal. Also, defendant doctor cleared decedent to drive his 18-wheeler back to Texas that day. However, the pacemaker check was not normal, and decedent was taken back to the lab for a lead revision. Although there are no nursing notes after 7:05 a.m. on 3/10/04 to indicate decedent s physical condition, the lab record indicated that decedent was in distress, anxious, refusing to lie down, coughing, and breathing faster than normal upon arrival. plaintiff lacked any pedal pulses in the right foot and performed a capillary refill test. He erroneously concluded that the plaintiff had adequate blood flow to the foot. The doctor prescribed the continuation of Cephalexin, an antibiotic, when in fact the plaintiff had been on Pen-Vee K for two to three days, ordered blood cultures from the wound and told the plaintiff to return to his office in 11 days. Plaintiff returned on Sept. 12, and according to the doctor s testimony, her foot was minimally improved. Contrary to the doctor s testimony, the plaintiff testified that her foot was significantly worse on the second office visit. Although the blood cultures taken from the plaintiff s foot Defendant registered nurse was the monitoring nurse for the 3/10/04 lead revision procedure, and evaluated decedent that afternoon. During her evaluation, defendant registered nurse noted that decedent had a history of sleep apnea and cardiomyopathy. Prior to the procedure, defendant registered nurse prescribed and gave decedent two liters of normal saline solution. Also, defendant registered nurse made the decision not to use an end tidal carbon dioxide monitor (ETCO2) to monitor decedent s breathing during the 3/10/04 procedure. Defendant doctor never completed the plan for sedation, nor did he re-evaluate decedent immediately prior to sedation. In fact, defendant registered nurse planned the medications, dosages, and frequency of the sedation without physician instruction or supervision, an act she admitted was outside the scope of her practice, and which plaintiff s experts opined was conduct amounting to the unauthorized practice of medicine. It was plaintiff s contention, based on the holding in Taylor v. Mobil Corporation, 444 S.E.2d 705 (Va. 1994), that defendant registered nurse and her employer were not protected by the medical malpractice damage cap to the extent defendant registered nurse was practicing medicine without a license to do so. This was disputed by the defendants who claimed that all defendants were medical providers, regardless of conduct in this case and damages were were available on Sept. 5, the doctor failed to promptly call the plaintiff to advise her of the lab results and the doctor did not change the antibiotic until the plaintiff returned for her second visit. During that visit, the doctor changed the antibiotic to Cipro, provided a sterile dressing and recommended that plaintiff continue to soak her foot. Plaintiff s condition continued to worsen and her localized infection worsened into system-wide sepsis for which she was admitted to MCV Hospital on Sept. 16. By then, the infection had spread to her entire foot and become gangrenous. After being hospitalized for 10 days, the plaintiff underwent a transmetatarsal amputation of her right forefoot. The plaintiff s three liability experts opined that the doctor violated the standard of care by failing to refer her to a vascular surgeon or a hospital emergency room promptly upon the plaintiff s presentation to the doctor s office; that the doctor failed to timely refer plaintiff for admission to a hospital for IV antibiotics, vascular care and other treatment; that the doctor failed to timely change her antibiotics and prescribe the appropriate antibiotic therapy; that he negligently relied upon the capillary refill test to determine whether the plaintiff had adequate circulation for wound healing; and that he failed to advise the plaintiff to stay off her foot to avoid further tissue breakdown. The defense experts opined that the doctor properly treated the plaintiff and that her condition did not warrant referral to an emergency room or a vascular surgical consultation. They also opined that the doctor prescribed the appropriate antibiotic medication. The defense experts contended that there was adequate circulation present to facilitate proper healing despite the lack of pedal pulses in the plaintiff s foot upon her initial visit. The defendants vascular surgeon opined that the studies done at MCV revealed that the plaintiff had adequate wound healing circulation. That opinion was undercut by plaintiff s vascular expert, who relied upon an angiogram that was performed during the plaintiff s hospitalization and showed that plaintiff had significant occlusion of the arteries in the lower leg. The defense vascular expert countered that the angioplasty was only a prophylactic measure. The defense experts also opined that the doctor did not cause the loss of the plaintiff s foot because, as a diabetic, she limited to the cap. Decedent s estate contended that the combination of underlying respiratory distress with diagnoses of sleep apnea, congestive heart failure, and chronic obstruct pulmonary disease required an anesthesia consult. Also, defendant registered nurse s administration of two liters of fluid worsened decedent s respiratory status. Defendant registered nurse also gave Versed and Fentanyl at dosages that caused decedent to undergo general anesthesia, wherein he stopped breathing and was unconscious at some point after 3:45 p.m. Because defendant registered nurse did not monitor decedent with an ETC02 monitor, when he stopped breathing sometime between 3:45 and 3:48 p.m., his apnea remained unnoticed and untreated, causing him to suffer anoxic brain injury. Furthermore, although staff documented respiratory distress, low blood pressure, and no pulse or respirations as early as 3:48, a code was not called until 12 minutes later at 4 p.m., and decedent was not intubated until 4:05. Such sustained periods without oxygen to his brain resulted in severe brain damage that left decedent in a permanent vegetative state until his death on February 17, This case was settled in mediation for $1.4 million of an available $1.7 million under the medical malpractice cap. [08-T-065] Patient s foot partially amputated after treatment Type of Action: Podiatric medical malpractice Injuries: Transmetatarsal amputation of right forefoot Name of Case: Confidential Court: Petersburg Circuit Court Verdict/Settlement: Case settled with the insurance company approximately 30 days before trial following an initial unsuccessful mediation Special Damages: Incurred medical bills of $146,000; future medical expenses of $30,875; past wage loss of $53,813; future wage loss of $225,000 to age 67 Amount of Settlement: $900,000 Date: Feb. 6, 2008 Experts: Plaintiff s experts included two podiatrists, a vascular surgeon, an orthopedic surgeon, a vocational rehabilitation counselor, a life-care planner and an economist named in rebuttal. The defense experts included two podiatrists, a vascular surgeon, a rehabilitation counselor and an economist. Plaintiff s Attorneys: Walter H. Emroch and Thomas J. McNally, Richmond would likely have lost the foot anyway. To support that opinion, the defense relied upon the generalization that diabetes or diabetic foot ulcers are the number one cause for non-traumatic lower limb amputations in this country. One of the defense experts also contended that the application of a clove of garlic wrapped in a gauze on the wound by her husband the day before she was admitted to the hospital contributed to the worsening of her infection. The defense attempted to undermine the plaintiff s future wage loss claim by arguing that she was not likely to work past age 60 due to her co-morbid conditions that included having suffered a heart attack and undergone triple bypass surgery approximately eight months following her amputation. The defense relied upon old statistical data accumulated by the Social Security Administration concerning future work life expectancies. [08-T-064]

11 Cite this page 5 M.L.R. 59 Virginia Medical Law Report 11 July 2008 VERDICTS & SETTLEMENTS Rectal bleeding caused by cancer rather than hemorrhoids $1,000,000 Verdict A 44-year-old male plaintiff presented to his long-time family practice physician in January and February 2001 with complaints that included rectal bleeding. He underwent a flexible sigmoidoscopy by the defendant that revealed hemorrhoids, which were neither bleeding nor inflamed. A Hemoccult test conducted at a complete physical exam prior to the flexible sigmoidoscopy was positive for bleeding. In May 2002, the plaintiff presented with a complaint of bleeding in his underwear almost every other day. The defendant did an anoscopy and this time saw a slightly inflamed hemorrhoid. There was no testing for the occult bleeding and the hemorrhoid was not bleeding at the time. Again, he felt the explanation for the bleeding was the hemorrhoid. The plaintiff presented several more times in 2002 for other ailments but there was no follow up on the bleeding. In March 2003, he again presented, this time with a complaint of blood in the High PSA not reported, prostate cancer metastasizes $1,450,000 Settlement Plaintiff was 50 when he retired from the Army as lieutenant colonel and came under the care of an HMO. During the nine years he was a patient of the HMO he was never counseled on prostate cancer screening. For reasons unknown to the patient or provider, his PSA was measured during routine blood work for high cholesterol. PSA came back at 5.6 (0-4 is normal); the patient was never advised of the elevated PSA and there was no follow-up. Twenty-one months later the patient changed providers and his PSA was checked during a routine physical and the PSA came back over 32. By that time the cancer had metastasized and was incurable. The patient s life expectancy is two to five years. At the time of settlement the patient was 65. [08-T-107] Injuries Alleged: Failure to diagnose prostate cancer Name of Case: Doe vs. HMO Date: May 2008 Tried Before: Mediation Name of Mediator: Robert L. Harris Sr. Verdict/Settlement: Settlement Amount: $1,450,000 Special Damages: Insignificant, plaintiff retired Plaintiff s Attorneys: Gary Mims and Steve Frei, Reston stools and a change in bowel habits. The defendant gave a Hemoccult test, which was positive. This time, however, the diagnosis was irritable bowel syndrome. The plaintiff returned in October 2003 with more of the same complaints and testified that he asked for a referral to a gastroenterologist. The defendant denied that plaintiff made this request and thought that his complaints were more of the same and that he had effectively ruled out a serious cause of bleeding with his 2001 flexible sigmoidoscopy. Plaintiff s insurance changed and he saw a new internist in January 2004, who made an immediate diagnosis of Stage 3 rectal cancer. The plaintiff underwent radiation and chemotherapy and two surgeries, one of which was to remove a portion of his rectum. The second surgery was to reverse an ileostomy that was performed as part of the first surgery. The surgery left him impotent and with permanent but variable bowel dysfunction. Plaintiff sued, alleging that the diagnosis of hemorrhoids was not reasonable and that he should have been referred to a gastroenterologist or colorectal cancer surgeon to investigate the cause of the bleeding when no source was actually found. Plaintiff s evidence was that early detection and diagnosis would have led to a removal of a polyp or early cancer. The removal would have been done during a colonoscopy or small procedure known as trans-anal excision, neither of which would have carried the risk of impotence or bowel dysfunction. Plaintiff s counsel took the deposition of only one of the four defense experts, preferring to cross exam the experts cold and on the basis of depositions they had given in other cases. As a result, several of the defense experts contradicted each other on significant portions of the de- Type of Injuries: Three year-diagnosis of hemorrhoids turned out to be rectal cancer Name of Case: Confidential Court: Fairfax Circuit Court Case No.: Law Name of Judge: R. Terrence Ney Verdict/Settlement: Jury verdict Amount: $1,000,000 Date: Jan. 31, 2008 Special Damages: Medical bills approximately $72,000 Attorney for Plaintiff: Benjamin W. Glass III, Fairfax fense case. Also, while defendant argued that there were no Virginia internists testifying for the plaintiff, all of the defense experts conceded that the issues in the case were simple and that the standard of care for diagnosing rectal bleeding is universal among physicians and states. There were no meaningful settlement discussions. The case had previously been non-suited when NCRIC, the insurance carrier that defended the case the first time, decided on the eve of trial that it didn t have the coverage for the years alleged in the complaint. The defendant then submitted the claim with Princeton Insurance Company, which accepted the claim but declined to make an offer. The verdict was immediately paid. [08-T-031] Excess lateral traction alleged during delivery Defense Verdict Plaintiffs, a mother and father, filed suit on behalf of their 6-year-old son who suffered from a permanent Erb s palsy. Plaintiffs alleged that two obstetricians failed to recognize the mother was at risk for having a shoulder dystocia and did not discuss a cesarean section with her before delivery. They further alleged the delivering obstetrician used excessive lateral traction when delivering the baby, causing injury to the right C5, C6 and C7 nerve roots in the baby s brachial plexus. Ralph Northam, a pediatric neurologist, saw the child at age one and performed an MRI, which showed a stretch injury to C5. Two years later, the child underwent surgery that included a right shoulder pectoralis release, latissimus teres major transfer and shoulder spica casting. He also had extensive physical and occupational therapy both before and after surgery. Nevertheless, the child continued to have limitations in his range of motion on the right and difficulty performing many activities of daily living. His physical difficulties also caused problems with fine motor skills at school. Plaintiffs presented expert testimony from Richard Stokes, an obstetrician in Reston and Daniel Adler, a pediatric neurologist in New Jersey. Plaintiffs also presented testimony from Dr. Northam. Dr. Stokes testified that the defendants should have recognized that the mother had several risk factors for a large baby and was at risk for experiencing a shoulder dystocia. He also felt that the defendants should have discussed a c-section with the mother, especially after she appeared to have an arrest of labor. Additionally, Dr. Stokes testified that the delivering physician applied too much lateral traction to the baby s head and neck during the delivery. Drs. Adler and Northam testified that excessive lateral traction at the time of delivery caused permanent injuries to the brachial plexus resulting in the permanent injury. Plaintiffs also presented testimony from Betty Over- Injuries Alleged: Permanent injury to brachial plexus/erb s palsy Name of Case: Confidential Court: Chesapeake Circuit Court Case No.: Confidential Verdict Date: Jan. 17, 2008 Tried Before: Jury Name of Judge: J. Warren Stephens (Retired) Verdict/Settlement: Defense verdict Special Damages: $43, plus life care plan of approximately $50,000 Insurer: The Doctors Company Defense Attorneys: Kimberly A. Satterwhite and Tracy Taylor Hague, Richmond bey, a life care planner from Richmond. Defendants presented expert testimony from Colman Feore and Edmond Schoeffler, two obstetricians from Richmond, and Edwin Myer, a now-retired pediatric neurologist from Medical College of Virginia. Drs. Feore and Schoeffler testified that the defendants complied with the standard of care for reasonably prudent obstetricians in Virginia. They testified that shoulder dystocia is an obstetrical emergency that cannot be prevented or predicted. They testified that there was no clinical indication for a c-section and that the delivering physician used only gentle traction as indicated in her delivery note. They and Dr. Myer testified that the child s injuries were due to the maternal forces of labor and supported those opinions with quotations from the medical literature. After a four-day trial, the jury returned a defense verdict in just over an hour. [08-T-104]! 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12 12 Virginia Medical Law Report July 2008 Cite this page 5 M.L.R. 60 VERDICTS & SETTLEMENTS Patient breaks leg, cuts Forceps delivery forehead in fall from bed results in brain injury $310,000 Verdict $2,100,000 Settlement In 2003 the plaintiff s mother finished an uncomplicated prenatal course and went into labor with her first child. The pregnancy was full term. The course of labor was essentially uneventful with the exception of the position of the fetus. There was no emergent indication for the use of operative instruments such as nonreassuring fetal heart rate patterns. The plaintiff alleged the standard of care required that the patient be clearly informed of the risks of forceps rotation versus cesarean section (both maternal and fetal risks). There were two parts to this claim. One was that when manual rotation of the fetus was unsuccessful, the first choice should have been a cesarean section as being safer for the baby. This should have been clearly explained to the mother, particularly since one of the defendants had no experience with the particular rotational forceps, which she had never used before this delivery and has not used since. It was claimed that it was not merely enough to inform the patient that another physician more experienced in the use of the particular forceps was going to be in attendance, but needed to clearly explain that the defendant would be the physician rotating the fetal head with the rotational forceps. The second requirement was that the mother needed to be informed of the risks to the fetus with the use of rotational forceps, including potential skull fracture and brain injury and that there was relatively no risk to the fetus in performing a cesarean section. During the rotation maneuver, the defendant became uncomfortable with rotation and temporarily stopped the procedure. The standard of care required that the procedure be abandoned and proceed immediately to cesarean section at the time. Finally, the defendant applied excessive force to the fetal skull in the utilization of the forceps. Injuries: Traumatic brain injury from application of forceps at birth Name of case: Confidential Court: Richmond Circuit Court Verdict/Settlement: Settlement Special Damages: Medicals: $94,574.38; future life care plan: $5,276, Amount: $2,100,000 ($1,350,000 for the infant, $750,000 for the mother for emotional distress) Plaintiffs Attorneys: Charles J. Zauzig III, Woodbridge; Stephen W. Bricker and Melissa G. Ray, Richmond It was the opinion of both plaintiffs expert obstetrician and pediatric neurologist that the child suffered a brain injury from excessive force of the forceps. Plaintiff s pediatric neurologist expert indicated that the skull fracture seen on imaging was evidence of the amount of force, but that the mechanism of the brain injury was caused by bilateral and diffuse edema which in turn caused infarcts and diffuse damage to the brain. The pattern of neurologic injuries was consistent with this mechanism of injury in that the child was relatively normal at birth. Once edema affected the brain cells, which takes time, the child developed neurological symptoms including seizures. The infant suffered and will continue to suffer permanent cognitive and motor deficits, all of which will substantially interfere with activities of daily living for life. When the child becomes an adult, he will continue to require assistance with dressing and supervision for safety, meals and finances. The opinion is that he will never be a fully independent adult and will need to be in a group home setting. [08-T-082] A 91-year-old female nursing home patient was allowed to fall from her bed to the floor. As a result of the fall, she sustained a forehead laceration and a nondisplaced left femur fracture. The forehead laceration required 10 sutures. No surgery was required for the femur fracture. Before the fall, the patient was non- ambulatory, did not bear weight on either leg, had contractures in all four extremities, was bed bound and largely confined to a fetal position, and was a hospice candidate. The nursing home admitted it was negligent for allowing the fall to occur. The patient died almost two and one-half months after the fall. The case was tried as a survival action only. [08-T-071] Type of Action: Nursing home neglect; fall Tried Before: Jury Name of Case: Diana Dove, as Administrator of the Estate of Virginia Thompson, deceased vs. American Healthcare, LLC and American Healthcare X, LLC t/a Heritage Hall-Blacksburg Medicals: $18, Court: Montgomery County Circuit Court Plaintiff s Attorney: Robert W. Carter Jr., Appomattox Name of Judge: Robert M.D. Turk Last Pre-Trial Offer: $100,000 Verdict or Settlement: Verdict Amount: $310,000 with interest Exciting changes going on in your practice? New hospital affiliation or promotion?alert your colleagues in the medical community. Run a professional announcement in the next issue of the Virginia Medical Law Report! Call Sherma Mather at , ext or sherma.mather@valawyersmedia.com E V A S HE T ATE D ou T A n w La 8 t a 200 y, rne 26 TE P E S E MB R VIRGINIA LAWYERS WEEKLY Annual Golf Tournament Williamsburg Country Club Sponsorships available! Call for more information

13 Cite this page 5 M.L.R. 61 July 2008 On Hold continued from PAGE 1 Bunion continued from PAGE 1 wages, the claimed specials totaled $2.25 million. Fennell said his client had demanded $1.5 million. No offer was ever made by the defendant, Troutville podiatrist Jennifer K. Feeny. Feeny s attorney, Paul C. Kuhnel of Roanoke, denied any negligence and contended that the plaintiff s pain condition was not necessarily the result of any negligence. After the bunionectomy, the plaintiff was diagnosed with complex regional pain syndrome, also known as reflex sympathetic dystrophy. She was treated by verdict against a gynecologist who allegedly forgot to remove a woman s ovaries during a hysterectomy. A nightmare Benjamin W. Glass III, one of the plaintiff s lawyers in Williams, termed the scenario a patient s worse nightmare. A test is done which shows a condition that is life-threatening but very treatable but none of the doctors acts on the [information], Glass wrote in a summary of the case. According to the court s opinion, the patient had an ultrasound study that showed a deep vein thrombosis in her leg, a condition that put the patient at risk for pulmonary embolism. Pieces of the blood clot in the leg could break off, travel to the lungs and cause death. The defendant radiologist telephoned the primary care doctor. After making his way through an automated telephone system, he spoke to an operator. He introduced himself and asked to speak to the primary care doctor. The operator said she would have to locate that doctor and put the radiologist on hold. The radiologist testified that he was on hold long enough that he lost confidence in being able to get in touch with the primary care doctor at that time. He was unable to leave a voic or talk to an operator. Instead, he prepared a report and had it faxed to the doctor s office. The primary care doctor did not get the warning report until after the patient s death. The plaintiff settled with other defendants and went to trial against the radiologist, who sought to shift the blame to the primary care doctor. At the defendant s request, Fairfax Circuit Judge Jonathan C. Thacher instructed the jury on superseding cause, allowing the radiologist to argue that the other doctor s failure to notice the radiology report was the ultimate cause of the patient s death. Citing a 10-year-old case, the Supreme Court held that such an instruction was error unless the jury could find that the defendant s negligence did not contribute to the harm in the slightest degree. Writing for the court, Justice Donald W. Lemons said the evidence proved without contradiction that the communication problems were put in motion by [the radiologist s] failure to make direct contact with [the other providers]. Stephanie E. Grana, who represents plaintiffs in medical malpractice cases, said that the Williams case highlights the perils of the superseding cause instruction. I think trial judges are going to be very careful about giving this instruction, Grana said. She pointed out that the Virginia Model Jury Instructions listing for this instruction does not say, Rarely given. She suggests that the editors might consider adding that warning in light of Williams. Grana also noted the likely impact of this decision on radiological practices. She envisions copies of the opinion taped to the wall next to the telephone and fax machine in radiology offices. This is going to be a decision that radiologists will think about, she said. The case signals that radiologists need to go the extra mile and have that mouth-to-mouth discussion with the treating doctor. As Glass put it, the defendant radiologist should have called back and told the operator that he had an emergency on his hands and he should also have called [the patient] and told her to get to an emergency department. He had a timebomb on his hands yet he failed to communicate the urgency of the situation to the operator. Virginia Medical Law Report 13 Med-mal cases in the Supreme Court, DATE CASE ISSUE OUTCOME WINNER January 12, 2007 Holmes v. Levine Instruction on proximate cause Verdict for defendant reversed Plaintiff March 2, 2007 Doherty v. Aleck Sufficiency of evidence Verdict for plaintiff reinstated Plaintiff April 20, 2007 Reifman v. Gorsen Exclusion of exhibit Defense verdict affirmed (order) Defendant April 20, 2007 Budd v. Punyanitya Exclusion of treatise Defense verdict affirmed Defendant June 8, 2007 Ogunde v. Prison Health Services Sovereign immunity for private prison health provider Dismissal reversed and remanded Plaintiff September 14, 2007 King v. Cooley Exclusion of treater s opinion testimony Plaintiff s verdict affirmed Plaintiff November 2, 2007 Dagner v. Anderson Qualification of expert Defense verdict remanded Plaintiff January 11, 2008 Lloyd v. Kime Exclusion of expert testimony Summary judgment for defendant reversed and remanded Plaintiff January 11, 2008 Coston v. Bio-Medical Applications Need for expert on negligence Summary judgment for defendant reversed and remanded Plaintiff February 29, 2008 Hicks v. Mellis Reinstatement of discontinued action Dismissal reversed Plaintiff February 29, 2008 UVA Health Services v. Morris Charitable immunity Foundation not immune Plaintiffs February 29, 2008 Brown v. Hoffman Sufficiency of evidence Defense verdict reversed and remanded Plaintiff April 18, 2008 Bostic v. About Women, Inc. Proper foundation for treatise Defense verdict reversed and remanded Plaintiff June 6, 2008 Williams v. Le Intervening causation instruction Defense verdict reversed and remanded Plaintiff June 6, 2008 Webb v. Smith Need for expert on causation Reversed, final judgment for plaintiff Plaintiff Note: Only decisions on medical malpractice cases involving patients or their representatives versus medical care providers. U.Va. orthopedic foot specialist Shepard Hurwitz, who ultimately amputated a portion of her foot in an effort to control the pain. It was a desperate attempt to alleviate some of her pain, said Fennell. Fennell described the 49-year-old plaintiff as an active, energetic person who would build barns on her own and who worked on a factory floor. Fennell said the defense did not contest that her foot pain led to total disability. The plaintiff s podiatric expert was Ilene S.H. Terrell of Fredericksburg. Dr. Hurwitz, the treating orthopedic surgeon, also testified on the standard of care for the plaintiff. The defense countered with Mechanicsville podiatrist Laurence G. Rubin and orthopedic surgeons William Andrews of Lynchburg and John Bowman of Richmond. JUST WHAT THE DOCTOR ORDERED VIRGINIA MEDICAL LAW REPORT Your source for medical legal news and information Medical News and Feature Articles Verdicts & Settlements Risk Management Updates on HIPAA, Medicare and other Federal & State Regulations Medical Case Stories Medical Practice Management And, Much More! For advertising information Call Sherma Mather at

14 14 Virginia Medical Law Report July 2008 Cite this page 5 M.L.R. 62 Dentist continued from PAGE 1 and record keeping. After an appeal to Fairfax County Circuit Court, only the billing issue and one minor record-keeping issue remained in the case. McCarthy, Zurmati s lawyer, said that he was shocked by the persistence of the regulators in their pursuit of Zurmati. He was steamrolled. He had the board coming after him based on some completely unfounded allegations and they kept coming after him, McCarthy said. It took a herculean effort to fight the allegations, according to McCarthy. He was just one man with one lawyer and he completely vindicated himself. McCarthy notes that a practitioner has an uphill fight on an appeal of regulatory action. The standard is whether there was any substantial evidence to support the board s regulatory action. That s a very hard standard, he said. They give great deference to the board. A three-judge Court of Appeals panel, in an opinion written by Judge Elizabeth A. McClanahan, concluded [t]here was no substantial evidence to support the Board s finding that Zurmati was charging insurance companies more than the amounts he disclosed to patients. While that decision apparently signals the end of Zurmati s struggle with state regulators, he still has a court fight underway against a former office manager who, he claims, set the entire process in motion. In a defamation lawsuit in Fairfax Circuit Court, Zurmati accuses Alicia Gailliot of deliberately bringing false allegations to the dentistry board. Zurmati alleges that, based on romantic rejection, Gailliot vowed to make his life a living hell. She went to work for another dentist who was a member (and later president) of the Board of Dentistry. She allegedly reported that Zurmati verbally abused patients and was violent in the workplace. Zurmati claims she recruited a Devices patient to make false allegations against Zurmati and used an office employee to get copies of confidential documents. Gailliot s lawyer, Ben Glass, said that the outcome of the regulatory battle is not likely to affect the defamation case. One critical issue, he said, is whether Gailliot made her complaint based on malice or bad faith. If not, a statute may provide immunity. I don t think the outcome of the case affects whether she had malice in the first place, Glass remarked. As for the allegations made by Gailliot, Glass said, We have witnesses who support her side of the story. Glass said the case could prove interesting because a Virginia statute states that confidential information from a health regulatory board investigation shall not be available for discovery or court subpoena or introduced into evidence in any civil action. Glass said that it s not clear how the evidence of what his client said could be considered by the court. continued from PAGE 3 The Riegel court did not stop there. It also held that the MDA s preemption clause does not simply bar state requirements applicable only to the medical device at issue, or even only to medical devices generally. 18 Rather, the court broadly read the preemption provision to allow it to prohibit state requirements applicable to all products and all actions in general. 19 The Riegels argued that 21 C.F.R (d)(1) specifically states that state or local requirements are only preempted in cases where the FDA has established specific counterpart regulations or where there are other specific requirements applicable to a particular device under the MDA suggesting that such a broad interpretation of the preemption clause was not permissible. The court refused to determine whether that regulation should be consulted when considering the meaning of the MDA s preemption clause. 20 It also chose not to make a decision regarding the FDA s distinction between general requirements that directly regulate and those that regulate only incidentally. 21 The Riegel court ultimately held that claims brought under State common law with respect to medical devices approved by the FDA are barred by the MDA. Where Riegel May Take Us The Riegel decision is not the first time that the Supreme Court has held that state law claims are preempted by the FDCA. For years, it has been the opinion of the court that the FDCA impliedly preempts fraud-on-the-fda claims brought under state law. 22 But the Riegel decision sweeps broader than those earlier opinions, effectively eliminating any means of recourse that an injured individual may have against medical device manufacturers. In addition, it appears that the Supreme Court s consideration of the preemption of claims brought under state laws will not end with Riegel. During its term, the Supreme Court will consider whether the FDCA preempts state common law claims with respect to the regulation of prescription drugs. 23 Given the significant number of pharmaceuticals on the market, and the greater number of people that rely on them, a similar decision in the context of prescription drugs is certain to bring with it effects felt more strongly than those that spring from the Riegel decision. Aside from leaving injured patients with practically no means of recourse against medical device manufacturers, the Riegel decision also eliminates many of the benefits that the tort system although imperfect brings to the medical arena. The threat of litigation prevents risky behavior and encourages the creation of safer products. 24 It provides compensation to those who have been injured, allowing them to pay for care they otherwise may be unable to afford. 25 It discourages deception, encourages disclosure, and, through discovery, provides a means by which information about industry practices may be uncovered. 26 Absent the tort system, many of these benefits will likely fade away. In addition, the Riegel court has placed even greater responsibility in the hands of a government agency that has long been subject to harsh criticism with respect to how it carries out its obligations. 27 The FDA s ability to properly and effectively regulate medical devices is necessarily limited. The number of medical device applications received by the FDA will only increase as approval is sought for a greater number of medical devices a near certainty given the advances in technology that are being made. The necessary result of this increase will be an increase in the number of man-hours required to ensure a thorough and proper evaluation of these applications, increasing the burden placed upon that agency. And even if the FDA were capable of keeping up with the applications it receives, its analysis of those applications is limited to the information submitted. This information may not and most likely does not include all of the information available to the manufacturer of the medical device. The FDA utilizes a least burdensome approach, as required by Congress, which requires manufacturers to send the FDA only that data necessary to determine safety and effectiveness. 28 Even if the FDA did receive every scrap of information available about a medical device, some risks such as those that only manifest themselves after an extended period of time or that affect small portions of the population may be discovered only after the device has entered the marketplace. 29 This is not information Moreover, Glass argues that the defamation suit, if allowed to proceed, could have a chilling effect on patients and others who want to report misconduct against a health care provider. He noted that most insurance policies do not cover claims of deliberate conduct. Why would you even make a complaint against a health care provider with that risk there? he queried. Cautionary tale Another dental regulation case decided the same day by the Court of Appeals, Doe v. Virginia Board of Dentistry, sounds a cautionary note for practitioners health and legal before the health boards. Proceeding under the pseudonym John Doe, the dentist was undermined on most of his appellate arguments. The Court of Appeals refused to consider four of Doe s six points because he had not raised those issues when the case was still before the Board of Dentistry. The court seemed to suggest that doctors who disagree with procedures used in their board hearings that the FDA would have been aware of at the time it originally approved the drug or device, and is not information it could have taken steps to obtain during its review of the application. The tort system particularly through discovery provides manufacturers with the ability to gather information on newly discovered problems, allowing them to create safer and more efficient products. Physicians will likely feel the impact of this trend as well, although the form of those impacts are not yet known. For example, if plaintiff's can no longer seek recourse from the manufacturers of medical devices or prescription drugs, will they begin to pursue claims against the physicians that used the device or prescribed the medication? Will physicians become saddled with greater reporting requirements for device errors, intending to allow the FDA to track errors and perhaps strip devices or drugs of FDA approval burdening physicians with even more paperwork than they already endure? Will physicians be prohibited from off-label uses of medical devices and pharmaceuticals, thereby limiting their options for treating their patients? Each of these potential side-effects 1 William H. Maisel, MD, MPH, Safety Issues Involving Medical Devices: Implications of Recent Implantable Cardioverter-Defibrillator Malfunctions, 294:8 JAMA 955, 955 (Aug. 24/31, 2005); William H. Maisel, MD, MPH, Medical Device Regulation: An Introduction for the Practicing Physician, 140:4 Ann. Int. Med. 296, 296 (Feb. 17, 2004). 2 Riegel v. Medtronic Inc., 128 S. Ct. 999, , 169 L. Ed. 2d 892, 897 (2008). 3 Id. at 1002, 169 L. Ed. 2d at Id. at 1003, 169 L. Ed. 2d at U.S.C. 360k(a) C.F.R (d) C.F.R (d)(1). 8 Riegel, 128 S. Ct. at 1005, 169 L. Ed. 2d at Id. 10 Id. 11 Id. 12 Id. at 1007, 169 L. Ed. 2d at d. at , 169 L. Ed. 2d. at Id. at 1008, 169 L. Ed. 2d at Id. 16 Id. at 1004, 169 L. Ed. 2d at 899. FOOTNOTES would be well-advised to file motions for reconsideration when they discover procedural problems, instead of rushing off to file an appeal at the next level. One issue that was considered involved two dental hygienists who participated in the board s decision. Doe argued that, since not all board members were dentists, an expert was required to explain the standard of care to the non-dentist decision makers. Writing for the entire Court of Appeals, Judge Robert J. Humphreys reviewed the laws that include dental hygienists in the regulation of dentists. [T]hese statutes contemplate that all Board members are competent to participate in Board matters., he wrote. The court found adequate support for the dentistry board s finding that Doe s diagnosis lacks an adequate medical history and consists of gross generalizations lacking the detail needed to describe the course of treatment. On another issue, Doe complained about procedures in his initial, informal hearing before a discipline committee. The Court of Appeals said the issue was moot. In essence, the court ruled, whatever happened in the informal hearing was annulled when Doe requested a formal hearing, where the evidence is heard over again with no regard for what happened in the first hearing. Doe this month filed a notice of appeal to request a review by the Supreme Court of Virginia. The John Doe pseudonym was allowed under the general confidentiality provisions that apply to health care regulation cases. Nevertheless, the decision gives a clue to the dentist s identity. Humphreys decision notes that the case against Doe started with a newspaper article about a malpractice suit filed by a former patient. Based on that article and documents available on the dentistry board Web site, John Doe is Dr. James M. Coleman of Williamsburg. Coleman s attorney did not return a call for comment. Peter Vieth of the preemption trend stands to impact physicians in serious ways. If the Supreme Court s decision in Riegel triggers a trend toward preempting state common law claims, it stands to bring with it numerous undesirable consequences. By removing the opportunity for consumers to seek redress for injuries that result from medical devices under state laws, manufacturers need only pass a single hurdle FDA approval before finding themselves largely in the clear and free of the risk of litigation. Consumers injured by a medical device are left with no recourse. They are essentially left to the mercy of the medical device manufacturers and the FDA an agency that has long been criticized for its inability to properly protect the American public. Ultimately, it may be the case that the MDA enacted to ensure the protection of the public from unsafe medical devices will become the agent for protecting the manufacturers of those devices instead. Kathryn Kransdorf practices law with the Glen Allen office of Hancock, Daniel, Johnson & Nagle. 17 Id. at 1008, 169 L. Ed. 2d at Id. at 1010, 169 L. Ed. 2d at Id. at 1010, 169 L. Ed. 2d at Id. at 1011, 169 L. Ed. 2d at Id. 22 See, e.g. Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341, 121 S. Ct (2001). 23 Levine v. Wyeth, 2006 VT 107, 944 A.2d 179 (2006)(petition for writ of certiorari granted at 128 S. Ct. 1118, 169 L. Ed. 2d 845 (2008)). 24 Lawrence O. Gostin, JD, The Deregulatory Effects of Preempting Tort Litigation, 299 JAMA 19, 2314 (May 21, 2008). 25 Id. at Id. at Gregory D. Curfman, M.D., et al., A Pivotal Medical-Device Case, 358; 1 New Engl. J. Med. 76, 77 (Jan. 3, 2008). 28 Maisel, Medical Device Regulation, at David A. Kessler and David C. Vladeck, Health Regulation and Governance: A Critical Examination of the FDA s Efforts to Preempt Failureto-Warn Claims, 96 Geo. L.J. 461, 466 (Jan. 2008); Maisel, Medical Device Regulation, at 298.

15 Cite this page 5 M.L.R. 63 July 2008 Virginia Medical Law Report 15 News You Need to Run Your Business A BIMONTHLY PUBLICATION The Business Law Bulletin of Virginia is published in even-numbered months, beginning BusinessLawBulletin OF Pre-Sorted Standard U.S. Postage Paid Baltimore, MD Permit No. 792 in April Volume 1, Number 1 NEWS YOU NEED TO RUN YOUR BUSINESS APRIL 2008 Fired CFO gets copies of ll documents he wrote ilege in an effort to short-circuit his Other courts, such as those in Wisconsin and New York, have rejected request. This privilege protects any er chief financial offiho sued after being and a client. the privilege. communication between a lawyer access to the information, upholding entitled to copies of Rush filed a motion to compel production of the information. tise on the law of evidence. For the The judge cited a well-known trea- ments he authored, and reviewed or One of the requests sought all privilege to attach to the information, the element of confidentiality he worked at the documents created, received and reviewed or maintained by Mr. Rush must be maintained. urt of Virginia during his employment. That made the difference for this issue of This particular request caught the Wooldridge, and he wrote the privilege does not apply to the informa- dence law, the attention of Fairfax Circuit Judge Robert W. Wooldridge Jr., who wrote tion in this case, since no effort was nior Living that the Supreme Court of Virginia made to keep it confidential from d a breach has yet address whether the attorney-client privilege applies On the other hand, the privilege Rush while he worked at Sunrise. tion suit McLeanrator of to documents created while he were not intended for his eyes while against a former officer or director as may still apply to documents that g com- worked at the defendant company. he was CFO or were not reasonably O for 22 Other jurisdictions have handled accessible to him. d for the issue, Wooldridge said, with results going both ways. Courts in a sought, the judge appointed Fairfax Given the volume of material curiion, few states, such as Colorado and lawyer Joel M. Birken as a special ny Delaware, have given the ex-employee the documents, figuring he al- material enumerated in Rush s re- commissioner to review all the other u- ready knew the content of his own quests. That information will subject PAUL FLETCHER For more information on advertising, call Sherma Mather at , x 14011, or sherma.mather@ valawyersmedia.com Address service requested Lawyers Weekly 10 Milk Street, Suite 1000 Boston, MA VIRGINIA VITAL TOPICS Eachissue includes timely articles on the issues that affect practically every business, suchas: employment law immigration law real estate business law intellectual property technology new state and federal legislation running an office

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