2016 March Virginia Medical Law Report

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LEGAL NEWS FOR THE MEDICAL COMMUNITY
Volume 13, Number 7
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MARCH 2016
Med-mal cap
doesnt apply
Negligent credentialing
suit allowed by judge
By Peter Vieth
A truly unique case
Contrib allowed in med-mal lawsuit

By Peter Vieth
A patients own behavior allegedly misleading a doctor
about his medication history
can be used to defeat a medical malpractice claim, a Virginia
judge has ruled.
Even though the Supreme Court of
Virginia has rejected theories of contributory negligence in medical negligence cases seven times before, a Roanoke judge ruled March 7 the defense
was properly used to defeat a wrongful death claim against an emergency
room doctor.
The doctors lawyers were allowed to
argue the patient intentionally misled
the doctor about medication the patient
had taken in a purported suicide at-
tempt. The result was a jury verdict in

favor of the ER doctor last year.
The trial judge affirmed the verdict over objections of lawyers for the
patients family, who argued the jury
should not have been allowed to consider evidence that the patient was carrying out a suicide plan.
Roanoke Circuit Judge Charles N.
Dorsey explained his reasoning in
a 33-page opinion letter in Harris v.
Schirmer.
Dorseys reasoning was welcomed by
the Medical Society of Virginia, which
represents physicians in the state.
Troubling medical history
The case arose from the death of college student Mark Harris.
The Washington & Lee University student died at Lexingtons Carilion Stonewall Jackson Hospital early
A Virginia judge has ruled that a

patients negligent credentialing
claim against a hospital owner is
outside the states Medical Malpractice Act, effectively removing
any cap on the patients recovery
for that claim.
on April 7, 2011, as the medical staff

sought to stabilize his symptoms, including tremors, fever and nausea.
Lawyers for Harris family sought to
narrow the case to focus on the treatment by Emergency Department physician Patricia L. Schirmer on the night
of April 6, but Schirmers lawyers urged
consideration of Harris long-term medical history.
Harris had struggled for years with
depression which worsened in the 2011
spring semester. A university psychiatrist prescribed various sleeping medications and anti-depressants including
Selegiline.
Harris overdosed twice in March,
once on sleep medication and the next
day on a combination of Selegiline
The Supreme Court of Virginia has not

yet decided whether a patient can sue a
health care facility for negligently allowing a doctor to practice there, but Lynchburg Circuit Judge R. Edwin Burnette
Jr. recognized such a claim as a distinct
cause of action.
Burnette pointed to ample authority
from other jurisdictions and from other
Virginia circuit courts validating actions
for negligent credentialing.
Burnette then went further, deciding
that negligent credentialing and privileging claims are outside the scope of the
Virginia Medical Malpractice Act.
Virginias incremental medical malpractice cap limits the patients malpractice claim to $2.10 million. The lawsuit,
including the credentialing claim, demands $5 million.
Burnettes Feb. 26 opinion is Martin v.
Salvaggio.
The ruling comes in the midst of a separate court battle between the defendant
n See LAWSUIT on PAGE 10
n See MALPRACTICE on PAGE 11
Open wide: Dentist alleges harm from letting in consultant

By Deborah Elkins
A consultant hired by a two-man
dental practice is facing a claim
for treble damages and attorneys
fees under Virginias business conspiracy statutes.
Last month, a Harrisonburg federal
court refused to dismiss the suit filed
by Frederick Broadhead, DMD, against
Diane G. Watterson and her consulting
business, Professional Dental Manage-
ment Inc., which is based in Frederick,

Maryland.
Broadhead
contracted with partner
Harry H. Heard III,
DDS, to buy the practice, Front Royal Dental Care, according
to his complaint. The
two hired Watterson
in 2010 to help develBYRNES
op their practice.
INSIDE
Being a good listener

takes skill, practice
Page 4
But when the dentists business relationship soured, Watterson secretly sided
with Heard and used confidential information obtained during the consulting
relationship to discredit Broadhead, his
suit alleged.
After gaining access to inside information, you dont turn around and target
your client, said Falls Church lawyer Kevin E. Byrnes, who represents Broadhead.
In a Feb. 24 decision, U.S. District
Judge Elizabeth K. Dillon refused to dis-
miss Broadheads claims under Va. Code

18.2-499 and -500. The case is Broadhead v. Watterson.
Dillon enumerated the acts alleged by
Broadhead to support his conspiracy theory.
Broadhead claimed Watterson, either
individually or through PDM, pushed
Heard to start a competing practice, encouraged Heard to tell Front Royals staff
that their jobs were in jeopardy, cast as-
n See DENTIST on PAGE 11
Page 3 | Medical Leave
Page 3 | Suing Doctors
Page 5 | Digitial Medicine
Employee gets double damages

in medical leave case
When doctors bring suit to

challenge decisions of insurers
Telemedicine in Virginia: An Update
Page 2 | Virginia Lawyers Media, March 2016
Virginia Lawyers Media, March 2016|Page 3
Employee gets double damages in medical leave case

By Deborah Elkins
A former employee who claimed
she was fired after requesting
medical leave for psychological
distress has won double damages
under the federal Family and Medical Leave Act.
U.S. District Judge Glen E. Conrad also
awarded attorneys fees and costs of nearly $210,000 in the aftermath of a July 7
award by a Roanoke federal jury. Conrad
approved a lawyers billing rate of $325
to calculate the fee award in LaMonaca v.
Tread Corp. (VLW 016-3-021).
Headquartered in Botetourt County,
Tread manufactures explosives handling
equipment. The plaintiff in the case, Valarie LaMonaca, was the companys human
resources director.
Under pressure both at home and at
work, LaMonaca was distraught following a tense meeting with the firms CEO
in April 2014, according to the judges
summary of the facts.
The CEO contended she resigned
during the Friday meeting, but LaMonaca maintained she said only that she
was considering resigning.
A flurry of text messages and emails
ensued over the following weekend. LaMonaca requested medical leave Sunday
afternoon. After a Monday doctors appointment, LaMonaca received an email
from the CEO saying her employment

had ended the previous Friday.
Conrad denied the companys summary judgment motion last June 22, and a
jury found in favor of LaMonaca on both
interference and retaliation claims under
the FMLA.
After the jury verdict, the lawyers stipulated to a back pay award of $54,468.89
and submitted the issues of liquidated
damages and attorneys fees to Conrad.
Tread asked the judge to toss the jurys
verdict and to either enter judgment for
the company or order a new trial. Conrad
denied both requests.
Treads defense relied heavily on its
contention that Lamonaca quit at the
Friday meeting. The jury decided in favor
of LaMonaca, however, and Conrad said
there was enough evidence to support
that finding.
While the court may have given more
weight to [the CEOs] testimony if it had
been the finder of fact, the court cannot say that the evidence was so overwhelming that no reasonable jury could
have found against Tread on the issue of
whether LaMonaca voluntarily resigned
before she requested FMLA leave, Conrad wrote.
LaMonacas claims survived even
though she had not yet received medical
treatment when she requested leave and
did not indicate how long the requested
absence would be, Conrad said.
When doctors bring suit to

challenge decisions of insurers
By Barry F. Rosen and John R. Paliga
Dolan Media Newswires
Doctors have continued to file lawsuits challenging the adverse decisions of insurers.
In the cases discussed below, the doctors
had mixed success in pursuing two different, novel theories of alleged wrongdoing.
The Rojas case
In Rojas v. Cigna, Cigna determined

that a physician practice had been overcharging Cigna for certain services that
had been provided to Cigna insureds. Cigna demanded repayment from the practice, and then terminated the practice
from Cignas network after the practice
refused to repay the overcharges. The
practice responded by filing suit to stop
Cigna from removing the practice as an
in-network provider.
One of the claims that the practice
made was that Cignas decision to remove
the practice from the network violated
the anti-retaliation provisions in ERISA. ERISA prohibits any discrimination
against an ERISA participant or beneficiary who exercises any right he or she
may have under an ERISA plan.
The practice alleged that it was entitled to the ERISA protection because it
met the definition of beneficiary in ERISA. ERISA regards as a beneficiary any
person who may become entitled to a
benefit under an ERISA plan. The practice claimed that it was entitled to a benefit under an ERISA plan because its patients had assigned to the practice their
rights to payment from the group health
plan and/or Cigna for medical services
that had been provided by the practice.
The 2nd U.S. Circuit Court of Appeals
ruled that the physician practice did not
have standing as a beneficiary under ERISA. According to the court, to be a bene-
ficiary under ERISA, one must be owed a

benefit. The court ruled that benefit under ERISA means the actual medical services that patients receive from medical
service providers, but it does not include
the payment for such services.
It did not help the practices case that it
failed to produce copies of any written assignment-of-benefits forms that it alleged
its patients had signed. Nevertheless, the
court assumed for arguments sake that
there had been a proper assignment to
the medical practice, but then ruled that
such an assignment would transfer only
the patients rights to be paid by Cigna,
and no other ERISA rights. The court also
expressed skepticism that patients could
somehow prevent the insurer from exercising its rights to select the members of
the insurers physician network.
Service providers that wish to pursue
ERISA rights on the basis of assignments
from their patients also face another challenge -- the changing language of ERISA
health care plans. An increasing number
of plan sponsors have added language to
their plans to prohibit plan participants
from assigning their benefits and benefit-related claims.
In any case, court decisions have come
down on both sides of this issue. In addition to the Rojas decision, federal appellate courts in Ohio and Georgia have
ruled that health care providers generally
cannot gain beneficiary status under ERISA from assignments of their patients
claims. However, federal trial courts in
New Jersey and Illinois have ruled that
providers can enforce such assignments
and file suit as beneficiaries. The courts
in Maryland have not published any rulings on this issue.
The Michigan Spine case
In Michigan Spine v. State Farm, a
n See SUING DOCTORS on PAGE 12
The lack of a doctors note also was not

fatal to the claim, the judge said. The jury
could have found sufficient information
in LaMonacas emails to trigger further
inquiry by the company, he said.
A doctors testimony about LaMonacas
condition and his recommendation for a
30-day medical leave were sufficient to
show she was unable to work for the statutory standard of more than three consecutive days, Conrad said.
The judge discounted evidence that
LaMonaca applied for other jobs during
her medical leave period.
Conrad rejected Treads effort to set
aside the jurys finding on retaliation.
A reasonable jury could have found
that LaMonaca engaged in protected activity when she requested FMLA leave;
that Tread subsequently terminated her
employment; and that Tread took the adverse employment action because of LaMonacas protected activity, Conrad wrote.
Conrad refused to order a new trial.
While this court may have decided the
issues differently if it had been the designated finder of fact, the court is unable
to conclude that the jurys finding with
respect to either issue was against the
clear weight of the evidence or based on
evidence that was false, Conrad said.
Under the FMLA, LaMonaca was entitled to double her damages award a
bonus termed liquidated damages
unless the employer could show it acted
in good faith and had

reasonable
grounds
for believing it followed the law.
Based on the jurys verdict, the court
is unable to find that
Tread acted in good
faith when it violated
JUDGE CONRAD
the FMLA, Conrad
said. His ruling means
an extra $54,468.89 for LaMonaca.
LaMonacas attorney, Paul G. Beers of
Roanoke, submitted a $259,542 legal bill
for his work on the case. He based the request on an hourly rate of $350.
Conrad cut the rate to $325 after reviewing the parties submissions and fee
awards in similar cases.
Conrad also trimmed the fee request
by eliminating vague time descriptions
intended to cure instances of block billing. The cuts came for entries such as
research, document review, work on
discovery and trial preparation.
Conrad reduced Beers hours by 15 percent and an associates hours by 20 percent for a 13-month period. The approved
fee award was $199,352.76. Costs were
calculated at $10,188.69.
Conrad expressly overruled Treads objection to costs for computerized legal research.
Conrads ruling came Jan. 21. No immediate response was filed by Treads
attorneys.
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Being a good listener takes skill, practice

By Louise Penberthy
Have you ever worked with
someone whos a poor listener?
Probably you have: someone who
never understands what youre
saying, who doesnt seem to pay
attention, who may even interrupt
you constantly.
Alternatively, you may have been surprised by a co-worker telling you that
youre not listening to them. Probably
you have been listening, but you may be
missing cues that people give when they
dont feel heard.
In my work as a mediator and a trainer,
Ive observed many conversations where
people dont seem to be listening to each
other, who in fact may not be listening to
each other. Ive also observed conversations where someone doesnt say outright
that they dont feel heard, that the other
person doesnt seem to be listening. Addressing the problem can be hard.
Heres a process you can use to get a
poor listener to listen to you. Later on, Ill
talk about specific behavioral cues you
can look for to make sure youre really
listening.
If someones not listening to you:
If you have a co-worker whos a poor listener, or whos a good listener but whos
not listening at the moment, heres a process you can use to get yourself heard.
If youre nervous or concerned about
speaking up, prepare yourself by grounding yourself and giving yourself some extra confidence. (I work with many clients
who need to prepare like this; if you dont
need to, you can skip this step.) Visualize
yourself as something strong and stable.
Given where I am, in the Seattle area, I
imagine that Im Mt. Rainier; you could
imagine that youre Borah Peak.
Practice this visualization a few times.

Its fun, and youll be ready to use it immediately whenever you need it.
Prepare a few things you can say when
a co-workers not listening. That way, youll
have them ready to use in the moment,
when its sometimes hard to think of something to say. A good formula is to make a
neutral observation, and follow with a suggestion for doing something different. For
example, You seem to have something on
your mind (neutral observation). Should
we talk at another time? (suggestion for doing something different).
Or, You started to talk before I was
finished (neutral observation). Would it
be okay if I finished what I have to say
before you ask questions? (suggestion for
doing something different).
Or, I notice you keep looking at your
phone (neutral observation). Are you
expecting an important call or text? (a
more subtle suggestion, i.e., politely of
suggesting that they stop looking at their
phone).
Of course, if this co-worker reports to
you, you can be more blunt. You keep
looking at your phone. Are you expecting
an important call? If not, please put your
phone away.
Chances are, your co-worker will start
listening once you say something to them.
Or, if your co-worker does have something
on the mind, or is expecting an important
call, talking at another time would probably work better.
Promise yourself a reward for speaking
up to a poor listener. For example, you
could promise yourself to find your favorite view from the building, and look at
that view for even just five minutes. You
could enjoy one ounce of excellent dark
chocolate. Or you could take a break and
play your favorite game for five minutes.
Whatever you promise yourself as a reward, make sure you give it to yourself,
even if speaking up wasnt as difficult as
you thought.
If a co-worker says
youre not listening
Hearing that youre not listening might

come as an unwelcome surprise. Maybe
youre not in fact listening. Or maybe
youre listening but youre missing cues
that people display when theyre not feeling heard.
Here are some cues you should look for
so you know that a co-worker doesnt feel
heard something. Your co-worker may be:
furling their brow
wrinkling their face
sighing or holding in breath
repeatedly starting to say the same
thing
cutting themselves off short when
you begin speaking
having a set expression on their face
speaking in a tight or stilted voice
smiling overly broadly
saying they dont have anything more
to say when earlier they did.
If you see any of these cues, there are
several things you can do. You can stop
talking and see if your co-worker will finish what they were saying. You can ask,
Did you want to say something more?
You can say, Im sorry, I didnt realize you
were still talking. Please continue.
Whatever you do, wait for your co-worker to continue talking. A good guideline is
to wait at least three times as long as you
think you should. It will feel like a long
time to you, but youll give your co-worker a chance to collect their thoughts and
continue talking.
If a co-worker is a poor listener, prepare
yourself to speak up tactfully, and reward
yourself for doing so. If youre hearing
that you dont seem to be listening, make
sure you are. Better still, look for the
cues that tell you a co-worker doesnt feel
heard, and let them speak.
Amanda Passmore, ext. 12162

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OFFICE MANAGER
Denise M. Woods, ext. 14010
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AUDIENCE DEVELOPMENT MANAGER
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Lawyers Media, 411 E. Franklin Street,
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POSTMASTER: Send address changes
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Louise Penberthy is a mediator in

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2016 Virginia Lawyers Media,
All Rights Reserved
Table of Contents:
3 Employee gets double damages in medical
leave case
3 When doctors bring suit against insurers

4 Being a good listener takes skill and practice
5 An update to Telemedicine in Virgina

6 How to deal with alcohol abuse in the
workplace
6 Dealing with mental illness in the workplace
Photocopying and data processing

storage of all or any part of this issue
may not be made without prior consent.
Telemedicine in Virginia: An Update

By Julie C. Mayer
With advances in technology, telemedicine is a growing field. It allows practitioners to utilize technology to provide more convenient,
flexible and cost-effective care to
patients. More and more practices
around the commonwealth are utilizing telemedicine.
The General Assembly in Virginia has
defined telemedicine services to mean
the use of electronic technology or media, including interactive audio or video,
for the purpose of diagnosing or treating
a patient or consulting with other health
care providers regarding a patients diagnosis or treatment. Va. Code 32.23418.16 (B). The definition specifically
states that telemedicine services do not
include an audio-only telephone, electronic mail message, facsimile transmission, or online questionnaire.
The Virginia Board of Medicine has
recognized that telemedicine services offer potential benefits in the provision of
medical care, including: facilitating communication between practitioners, other
health care providers and their patients,
prescribing medication, medication management, obtaining laboratory results,
monitoring chronic conditions, providing
health care information and clarifying
medical advice. While telemedicine services offer more convenience and access
to medicine for many patients, practitioners must be aware of the applicable
laws and regulations before utilizing telemedicine services.
Because the General Assembly has not
established statutory parameters regarding the provision and delivery of telemedicine services, the Virginia Board of Medicine published a guidance document to
assist providers in this growing area in
2015. The Board specifically noted that it
is committed to ensuring patient access
to the convenience and benefits afforded
by telemedicine services. However, the
guidance document does not limit the
Board of Medicines ability to investigate,
discipline or regulate practitioners in the
Commonwealth of Virginia. Practitioners
must apply existing laws and regulations
to the provision of telemedicine services
in Virginia.
Establishing the PractitionerPatient Relationship.
The establishment of the practitioner-patient relationship is fundamental to the provision of acceptable medical
care. Virginia Code 54.1-3303(A) provides the requirements of establishing
the relationship. In terms of telemedicine
services, the Virginia Board of Medicine
discourages its use by a practitioner without (1) fully verifying and authenticating
the location, and to the extent possible,
confirming the identity of the requesting
patient; (2) disclosing and validating the
practitioners identity and applicable credentials; and (3) obtaining appropriate
consents from requesting patients. When
obtaining consents, the practitioner
should disclose the delivery models and
treatment methods or limitations, including any special informed consents regarding the use of telemedicine services. A
practitioner-patient relationship has not
been established when the identity of the
practitioner is unknown to the patient.
Guidelines for the Appropriate Use

of Telemedicine Services.
licensed by the regulatory board of the

state where the patient is located, and the
state where the practitioner is located.
Evaluation and Treatment

of the Patient
A documented medical evaluation and

a collection of relevant clinical history appropriate with the patients presentation
must be obtained before providing any
treatment. Treatment and consultation
recommendations made in an online setting will be held to the same standards
of care as those in a traditional setting.
Issuing a prescription based solely on an
online questionnaire is not in comport
with the standard of care.
Informed Consent
Evidence documenting informed consent must be maintained. Appropriate

informed consent should include at minimum: the identification of the patient,
practitioner and practitioners credentials; types of activities permitted using
telemedicine services; agreement by the
patient that it is the practitioners decision to determine whether or not a condition is appropriate for telemedicine;
details on security measures taken and
risks to patient privacy notwithstanding
those measures; a hold harmless clause
for information lost due to technical failures; and requirement for express patient
consent to forward patient-identifying information to a third-party.
Medical Records
Records from telemedicine services

must be maintained, and should include
if applicable: copies of all patient-related
electronic communications (communication with patient, prescriptions, laboratory results, evaluations and consultations,
records of past care, and instructions
obtained or produced in connection with
the use of telemedicine services) and informed consents. The medical records
must be accessible to both the patient
and practitioner in accordance with established laws and regulations.
Privacy and Security of Records
It is important for the practitioner to

recognize that all situations and patient
presentations are not appropriate for
telemedicine services, and it is the responsibility of the practitioner to make
that determination.
To
assist
practitioners, the Virginia
Board of Medicine
has published several guidelines.
Any practitioner utilizing telemedicine

services should maintain written policies
and procedures for documentation, maintenance, and transmission of the records
of encounters. The policies and procedures
should address (1) privacy, (2) health-care
personnel who will process messages, (3)
hours of operation, (4) types of electronic
transactions permitted, (5) required patient information to be included in transactions, (6) archival and retrieval, and (7)
quality oversight mechanisms.
The practice of medicine occurs where the

patient is located at
the time telemedicine
services are used. A
practitioner must be
Prescribing medications via telemedicine is at the professional discretion of

the practitioner. Prescriptions issued using telemedicine services will be administered with the same professional accountability as prescriptions delivered during
Licensure
MAYER
Prescribing
an in-person encounter. All prescriptions

must comply with the requirements set
out in Va. Code 54.1-3408.1 and 54.13303(A).
Telemedicine is growing, both globally
and within the Commonwealth of Virginia. It is estimated that the global market
for telemedicine will be worth more than
$34 billion by the end of 2020. Twenty-nine states, including Virginia, and the
District of Columbia require that private
insurers cover telemedicine services the
same as they cover in-person services.

With telemedicine services continued
growth, it is important for practitioners
to understand the laws and regulations
that apply before they begin to provide
telemedicine services as part of their
practice.
Julie C. Mayer practices law with Hancock Daniel Johnson & Nagle in the firms
Richmond office.
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When alcohol abuse enters the workplace

By Rich Meneghello
Football powerhouse USC fired its
head football coach, Steve Sarkisian, in October 2015 after it was
widely reported that he had been
under the influence of alcohol
during several team events. His termination provides a lesson for any
employer wondering how it should
handle the sometimes-touchy situation involving possible alcohol
abuse by an employee.
What should an employer do if it believes one of its employees is under the
influence at work? It may come as a surprise that the employer does not have the
unfettered right to treat employees with
alcohol problems in any manner it sees
fit. Thats because the federal Americans
with Disabilities Act (ADA) considers alcoholism a protected disability. In other
words, if an employer fires someone because it knows or suspects the person is
an alcoholic, an ADA claim could be forthcoming.
The good news is that some bright line
rules exist for employers to follow in order to make sure they stay out of hot water in situations involving employee alcohol use. Here are the five things to know
about employee alcohol abuse:
1. The ADA specifically says that
alcoholics can be held to the same
performance and conduct standards
as all other employees. The statute
makes clear that a line can be drawn in
the sand. Even the decidedly pro-employee Equal Employment Opportunity Commission (EEOC) recognizes that poor job
performance or unsatisfactory behavior
such as absenteeism, tardiness, insub-
ordination or on-the-job accidents related to an employees alcoholism need

not be tolerated if similar performance or
conduct would not be acceptable for other
employees.
In guidance addressing how employers
should apply performance and conduct
standards to disabled employees, the
EEOC says employers that consistently
enforce their rules can do so even if an
alcoholic employee claims that the reason
for the rules violation was the result of
drinking. However, those employers that
maintain a lax attitude about certain
rules but then cracks down when an alcoholic worker breaks those rules will face
ADA liability.
2. Alcohol can always be prohibited from the workplace. Maybe this
seems like a no-brainer, but the ADA permits businesses to bar the use or possession of alcohol in the workplace. It doesnt
matter if an employee claims that his or
her alcoholism causes him or her to display bad judgment and bring the bottle to
work; an employer can always lay down
the law (consistently) in this regard.
3. A worker can be steered toward
an Employee Assistance Program.
The EEOC provides employers with the
option of referring an employee suspected of having a drinking problem to an
EAP for assistance. This is certainly not
required, and the agency clearly states
that an employer can respond to a performance or conduct issue by walking down
the disciplinary path instead. However, if
an employer wants to help its employee
and believes that rehabilitation might be
good for both parties, then the EAP route
could be ideal.
Some employers may be wary to take
the first step in such a situation for fear
that they might end up being found to
have regarded the employee as disabled
by making an EAP suggestion. However, once the ADA Amendments Act was
passed in 2008, the bar to prove disability

or regarded as disability became incredibly low. In other words, an employee will
often be able to prove disability no matter an employers actions, so this should
not be the primary concern.
As long as an employer can show
through objective, documented informa-
tion that the employee appeared to be

under the influence of alcohol, and it is
not acting solely based on speculation or
innuendo, its putting itself in the best
possible position. Further, an employer
could also refer the employee to an EAP
without concluding why he or she is act-
n See ALCOHOL ABUSE on PAGE 11
Mental illness in the workplace:

There are ways to help workers
By Jeffrey Berlant, MD, PhD.
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It is easy to dismiss or pass over

a decline in morale or productivity.
However, as a business owner or
team leader you are the first line of
defense for your companys workforce health and safety. We all can
have an off day, but if a change in
behavior develops into a pattern, it
can be a sign of a bigger problem
such as depression, anxiety or other types of behavioral illness.
It is helpful to know that, according
to Workplace Mental Health, 30-40 percent of our workforce will experience a
mental health or substance use disorder at some point in their lives. When
you consider the number of people you
work with or employ, it is likely someone on your team will experience a mental health crisis. Are you ready to recognize and address their needs?
Depression costs $44 billion annually.
When a team member is facing mental
health issues, going through a divorce
or experiencing family problems, it may
be hard for them to concentrate on work
or have the motivation to be at work. In
addition to the human factor of caring
for the individual, these types of issues
can cause poor concentration, illogical
thinking, difficulties with decision making, absenteeism and decreased productivity. Psychology Today states that employers see $44 billion annually in lost
productivity due to depression.
Know the signs. Behavioral chang-
es or signs of depression might be as

subtle as increased absenteeism, social
withdrawal, increase in rate of errors,
and negative change in personal appearance and hygiene. Whether the
change in behavior is the result of a
workplace situation or something that
is happening at home, it can adversely
affect quality of work, productivity and
the workplace environment. If these
problems go untreated they can grow
into bigger issues that are more difficult to treat, therefore, early intervention is best.
Stigma busting. The stigma associated with mental illness may cause
people to retreat and withdraw in an
effort to hide the problem from their
colleagues. Stigma busting begins
with knowledge and understanding.
The Partnership for Workplace Mental
Health provides employers and employees online resources and a downloadable tool kit for implementation of the
Right Direction program, an educational initiative that aims to decrease the
stigma associated with depression.
Company sponsored resources.
Employee Assistance Programs are an
excellent resource that many companies offer through the human resource
department. These programs aim to
provide resources for resolving home
and workplace issues that might adversely affect attendance, productivity
and retention.
Most EAPs are activated by one
quick phone call. Commonly, EAPs of-
n See MENTAL ILLNESS on PAGE 12
Child with sleep apnea died of cardiac arrhythmia after surgery

Defense Verdict
On Oct. 31, 2013, plaintiffs decedent, a
5-year-old male with history of chronic severe obstructive sleep apnea underwent a
tonsillectomy and adenoidectomy surgery
(T&A) to seek relief from the ongoing
obstructions in the airway. The patient
tolerated the procedure well, it was uncomplicated and the patient discharged
after appropriate post-anesthesia care
unit observation and evaluation. Several hours later, the plaintiff, decedents
mother, found him unresponsive on the
family room couch and 911 was called.
Despite significant resuscitative efforts,
the decedent was pronounced dead at the
hospital. The Commonwealth of Virginia
Medical Examiner death investigation
found that the decedent died of a cardiac
arrhythmia of unknown etiology.
Plaintiff filed suit in the Fairfax County
Circuit Court, alleging that the decedent
was not an appropriate patient for outpatient T&A because he had severe obstructive sleep apnea. Plaintiff claimed that
the anesthesia given that morning, pain
medication given later in the day and the
decedents history of obstructive sleep apnea led to a respiratory/pulmonary compromise and arrest that led to his death.
Defendant denied the allegations and the
NAGLE
KNAACK
case was tried on Nov. 30, 2015.

Plaintiffs standard of care expert, Patricia Yoon, M.D., a pediatric otolaryngologist from Denver, testified that the
defendant breached the standard by not
scheduling the T&A surgery as inpatient,
per American Academy of Otolaryngology literature suggesting that patients
like the decedent should be admitted for
overnight monitoring. Plaintiffs cause
of death expert, Jonathan Arden, M.D.,
a forensic pathologist, testified that his
review of the records and post-mortem
investigation led him to conclude that the
decedent had a respiratory compromise
that led to respiratory/pulmonary arrest
and ensuing death.
Defense standard of care experts,
Gregory Zachmann, M.D., a general
otolaryngologist from Roanoke, and
Joseph Hutchison, M.D., a general oto-
laryngologist from Lynchburg, testified

that the defendant physicians care and
plan for the T&A surgery were appropriate and reasonable for the patient in
that case. They also testified that the
Virginia standard of care for general
otolaryngologist practice is not set by a
piece of literature that has a recommendation that physicians consider doing
such procedures as inpatient, and that
this patients situation did not indicate
the need for inpatient admission following the surgery. Defense causation
expert, Anthony Casalaro, M.D., a pulmonologist, testified that there was no
evidence in the medical records or the
medical examiners report (nor the autopsy) that showed evidence of a pulmonary or respiratory cause of death.
Defense causation expert, Simeon
Boyd, M.D., a pediatric geneticist from

the University of California, Davis, testified that genetic testing from DNA
samples kept by the medical examiners office found gene mutations that
show the decedent had a rare inheritable cardiac conduction disorder called
Brugada Syndrome, which is known to
cause sudden cardiac death, even in individuals who have no prior evidence of
cardiac pathology. The geneticist also
testified that the genetic disorder uncovered through the DNA testing was
consistent with the findings of the medical examiners investigation.
After a five-and-a-half day trial, the
jury deliberated for approximately 90
minutes and returned a verdict for the
defendant.
[15-T-199]
Type of action: Medical malpractice

wrongful death
lost wages $208,000; future lost wages $175,000
Court: Fairfax County Circuit Court
Offer: None
Tried before: Jury
Verdict or settlement: Defense Verdict
Judge: Brett Kassabian

Date resolved: Dec. 9, 2015
Attorneys for defendant: Richard L. Nagle and

James N. Knaack, Fairfax
Special damages: Past medical bills $89,000; past
Insurance carrier: The Doctors Company
Demand: $2,200,000
The Verdicts & Settlements page is a forum for lawyers in Virginia to share results of recent cases. It is intended as a tool
to help in determining case values for trial or settlement. Submissions are provided by one of the lawyers in the case.
Virginia Lawyers Weekly reserves the right to edit submissions for style, language and length.
Patient underwent amputation after failed knee replacement

$1,750,000 Verdict
Plaintiff was a 74-year-old woman with
diabetes, previous stroke and cardiac
catheterization with stent placement, who
underwent a bilateral knee replacement
surgery. Her orthopedic surgeon lacerated
the popliteal artery on the first knee. Injury was diagnosed in the recovery room,
but a vascular surgeons attempt at a repair failed and the patient underwent amputation on post-op day four.
The carrier refused to make an offer for
months, arguing the plaintiffs demand
of $1.7 million was too high for Augusta
County. One week before trial, negotiations
started, but the carrier stopped with an offer of $500,000. The plaintiffs last demand
before trial was $850,000. The carrier withdrew the offer the day before trial.
On pretrial motions, evidence of risks
of procedure, known complication, and
similar misleading terms were excluded
from evidence. The court excluded evidence the defendant had never had this
complication before.
On the first day of trial, the local newspaper published a front-page banner
headline story about the lawsuit. The story was also posted online the day before
trial, prior to jury selection. The paper
LIVINGSTON
GRIFFIN
published the defendant surgeons outstanding low complication rates for knee
surgeries and his high
ranking for low complications, information
which had been excluded from trial on a
motion in limine. The
BROOK
story was brought to
counsels attention after the court had
granted 17 motions to strike jurors for
cause. With a panel of over 60, an impartial jury was seated.
Each party had two standard of care
experts, and the plaintiff also called a
vascular surgeon, who undermined defense causation arguments based on the
treating vascular surgeons notes saying
the patient had significant peripheral

vascular disease which complicated part
of a bypass procedure designed to bypass
the injury and save the leg.
The plaintiff was a pastor, was very resilient and minimized her damages. She was
largely confined to a wheelchair, even with
her prosthetic leg. After she had the abovethe-knee amputation on the right, she
could not rehab her left knee that had been
replaced, and it froze on her. Before her injury, the plaintiff had founded a Meals on
Wheels chapter when she lived in Penn-
sylvania and was a friend to a neighbors

child with cerebral palsy. After becoming
disabled, she had to call on her neighbor occasionally to help her when she fell or had
difficulties with personal care.
After the jury deliberated for four
hours and came back with alarming questions, the plaintiff reduced her demand to
$750,000. The carrier did not respond.
The jury returned a verdict of $1,750,000
after a five-day trial, almost a full day of
which was deliberations.
[15-T-204]
Demand: $750,000
Injuries alleged: Above-knee amputation
Offer: $500,000
Name of case: Reeder v. Boatright
Verdict or settlement: Verdict
Court: Augusta County Circuit Court
Amount: $1,750,000
Attorneys for plaintiff: Lee Livingston, Yvonne T.
Griffin and Lisa Brook, Charlottesville
Case no.: CL14-1056

Tried before: Jury
Date resolved: Dec. 15, 2015
Plaintiffs experts: Dr. Heather W. Brien, M.D.,

vascular surgery; Dr. Jeffrey Garske, M.D., orthopedic surgery; Dr. Sonny Bal, M.D., orthopedic surgery;
Susan Riddick-Grisham, life care plan
Special damages: The patient had $360,731.97 in

medical bills and a life care plan of $534,149.60 to
$688,549.40, depending on various options
Defendants experts: Dr. Gary G. Poehling,

M.D., orthopedic surgery; Dr. John W. Mann, M.D.,
orthopedic surgery
Judge: John J. McGrath Jr.
Closure device slipped out of place during heart surgery

Defense Verdict
This medical malpractice case involved
the percutaneous placement of a device to
close a hole in the atrial septum of the
plaintiffs heart. The device slipped out
of position during the placement procedure, eventually leading to significant
neurologic injury. At trial, plaintiff alleged multiple theories of negligence that
challenged the defendant physicians
measurement of the hole, placement and
deployment of the device, and efforts to
retrieve the device after it moved out of
the septum and into the left atrium. Related claims against other co-defendants
were resolved and dismissed before trial
and the case went to trial against the interventional cardiologist only.
The plaintiff was a 48-year-old cabinet
finisher. He previously underwent triple
bypass surgery and had a complex medical history including Type II diabetes,
COPD, hypertension and high cholesterol. However, he maintained an active lifestyle without significant limitations prior
to the procedure, and he was employed
full-time.
During routine follow-up after the bypass surgery, plaintiffs treating cardiologist diagnosed an atrial septal defect
a hole in the atrial septum. The cardiologist referred plaintiff to the defendant
physician, an interventional cardiologist
with experience treating these defects.
The defendant physician planned to close
BYRNE
PETERSON
the ASD percutaneously by delivering a

closure device known as an atrial septal
occluder through a catheter placed in the
groin and threaded up into the heart.
During the ASD closure procedure, the
ASO embolized, migrating out of the atrial septum and into the left atrium. Despite efforts by the defendant physician
to retrieve the ASO with snares, it further embolized into the left ventricular
outflow tract. The defendant physician
consulted with a cardiothoracic surgeon
and they decided that the plaintiff would
require open-heart surgery to retrieve
the occluder and close the defect.
Following open-heart surgery to remove the device, the plaintiff had an embolic stroke, which he attributed to the
ASO blocking the left ventricular outflow
tract. Among other things, his debilities
include difficulty swallowing, profound
gait disturbance necessitating a walker
or wheelchair, and difficulty with speech.
He also had compartment syndrome in
his dominant hand, leading to strength
deficits and loss of sensation. He is no
longer able to work and is separated from

his spouse.
The plaintiffs expert interventional cardiologist offered the opinion at trial that
the defendant physician was negligent in
three ways: 1) inaccurate measurement
of the ASD; 2) improper placement of the
ASO; and 3) negligent efforts to retrieve
the ASO when it embolized. In essence the
plaintiffs theory was that the device must
have been too small, causing it to embolize.
The opposing experts offered conflicting
theories and analysis of the measurement
of the size of the device and the reasons
why the device came out of position and
could not be readily retrieved.
The defense argued that the defendant
physician accurately sized the hole, but
variations in the anatomy and heart tissue were such that the device did not stay
in place despite accurate sizing and skill-
ful deployment. The defendant physician

offered expert testimony by two preeminent interventional cardiologists, both of
whom have participated in peer-reviewed
studies on percutaneous ASD closure.
Both sides relied on medical literature
in support of their positions, and used animation and other medical illustrations
to educate the jury. A complicating issue
in the case involved the fact that certain
echocardiographic imaging studies maintained by the hospital where the procedure was performed were no longer available at the time of the lawsuit.
The trial lasted five days. The court
gave the jury an Allen charge after several hours of deliberation. Ultimately,
the jury returned a unanimous verdict
in favor of the defendant physician after
approximately five hours of deliberation.
[15-T-205]
Verdict or settlement: Defense verdict
Injuries alleged: Complications from cardiac

procedure causing stroke leading to significant
neurologic injury and profound disability
Attorneys for defendant: Sean P. Byrne & John E.

Peterson Jr., Glen Allen
Tried before: Jury

Date resolved: Nov. 20, 2015
Special damages: Past and future medical expenses, lost wages and a life care plan of more than
$2,000,000; pain and suffering damages of more
than $5,000,000
Demand: Ad damnum was $2,500,000
Defendants experts: John W. M. Moore, M.D.,

interventional cardiology; Deepak Talreja, M.D.,
interventional cardiology
Plaintiffs experts: Abram C. Rabinowitz, M.D.,
interventional cardiology; Gene O. Neri, M.D.,
neurology
Insurance carrier: MagMutual Insurance Company
Wrongful death case brought over delayed communication

$1 million settlement
This medical malpractice case alleged
Injuries alleged: Wrongful death
the wrongful death of a 75-year-old due to

delayed communication of cancer diagnosis.
Court: Newport News Circuit Court
[15-T-208]
WATERMAN
Verdict or settlement: Settlement

Amount: $1,000,000.00
Attorney for plaintiff: Avery T. Sandy Waterman Jr., Newport
News
Hospital patient died from complications of sickle cell disease

Defense Verdict
Decedent was 19 years old and suffered from sickle cell disease. She presented to Virginia Hospital Center-Arlington on May 29, 2011, with signs and
symptoms consistent with sickle cell vaso-occlusive pain crisis. On the morning
of May 31, she was transferred to the
ICU with plummeting oxygen saturation
levels and respiratory distress. Chest
X-rays and CT scan showed significant
bilateral basilar airspace disease. The
patients course continued to worsen and
she died on June 9, 2011.
Plaintiff presented evidence that the
patient was suffering from acute chest
syndrome, which is a serious complication
of sickle cell disease. Plaintiffs expert intensivist/pulmonologist testified that the
standard of care required the defendants
on May 31 and/or June 1 to have obtained
a hematology consultation and to have ordered a special blood transfusion known
as an exchange transfusion in order to
MITCHELL
BANKS
properly treat the

patients acute chest
syndrome. Neither hematology consultation
nor exchange transfusion took place until
June 3, 2011. Plaintiffs expert witnesses
testified that had defendants met the stanALTMAN
dard of care and timely obtained exchange
transfusion and hematology consultation,
the patient would not have died.
Defense experts testified that un-
der the circumstances the standard

of care required neither hematology
consultation nor exchange transfusion prior to the time that those steps
were, in fact, taken. Defendants pulmonology expert testified that the patient was suffering from severe pneumonia, likely due to an aspiration
event, which took her life in spite of
appropriate care by defendants. Defendants sickle cell disease expert
testified that even with earlier ex-

wrongful death
change transfusion, the patient nonetheless would have died.

Plaintiff presented rebuttal expert
testimony that the patient did not have
pneumonia.
The case was submitted to the jury on
day six of trial. The jury returned a defense verdict on day seven. Plaintiff has
filed a petition for appeal with the Supreme Court of Virginia. The court has not
yet heard oral argument on the petition.
[15-T-217]
Tried before: Jury
Demand: No formal demand made but mediation

requested, which defendants declined. Plaintiff
sued for $10,000,000 and asked the jury for
$3,100,000 in closing argument.
Judge: Louise M. DiMatteo
Offer: None
Date resolved: June 3, 2015
Verdict or Settlement: Defense verdict
Special damages: Medical bills for final hospitalization $179.389; funeral and burial expenses $19,303;
grief counseling $675; sorrow; mental anguish; solace; loss of companionship, comfort, guidance, advice
Attorneys for defendant: Susan L. Mitchell, Matthew D. Banks and Judd P. Altman, Fairfax Insurance
carriers: The Doctors Company
Court: Arlington County Circuit Court
Nurse failed to tell surgeon that patient called him with post-op complaints
$1.85M verdict
A 62-year-old female had blood work
done to evaluate an inflamed tick bite.
Testing showed elevated liver function
results. Further investigation lead to a
discovery of a large gallstone. Surgery
was recommended and was performed in
September 2012 in Fredericksburg.
At surgery the surgeon took an intraoperative cholangiogram, preplanned to make
sure she had no other gallstones in the
common duct. The surgeon saved one image from the intraoperative cholangiogram
and it was, according to plaintiffs experts,
abnormal. Plaintiffs case against the surgeon was that in light of the cholangiogram
he should not have proceeded with cutting
what he believed to be the cystic duct because the cholangiogram predicted that he
was about to create a major biliary injury.
The surgeon and his experts testified that
the cholangiogram image he took did not tell
the entire story because it was but a moment in time. The surgeon testified that
what he saw on the screen before taking the
picture showed a normal cholangiogram.
At surgery, the surgeon inadvertently
removed a large segment of the common
hepatic duct and the right and left hepatic ducts, leaving bile to drain into the patients abdomen. Neither the surgeon nor
the pathologist noticed the extra biliary
tree parts post-operatively.
The patient went home that day and
traveled to her second home in North
Carolina, with the surgeons permission.
There were then a series of phone calls
back to the surgeons office. On the afternoon of surgery the patients husband
called and spoke to a nurse. He told the
nurse that his wife was in a great deal of
pain. He requested a change of medication
from the Percocet to Vicodin. The nurse
told him this was normal post-op pain and
that Vicodin wasnt going to help. The surgeon never heard about this call.
On the fifth post-operative day, the
patient called again, this time complaining that the Percocet wasnt covering the
pain, she could not eat anything and she
had left shoulder pain. She spoke with a
different nurse who told her this was all
normal. That nurse did not tell the sur-
GLASS III
ABRENIO
geon either. Instead, she ordered the Percocet stopped and, using the surgeons
DEA number, called in a new prescription
for Vicodin to the pharmacy. The pain continued for another nine days but because
the patient was under the impression that
the nurse had spoken to the surgeon, and
that the surgeon said this was normal,
she did not call back to the office.
Two weeks after surgery, the patient
started spitting up bile and now felt even
worse. It was later determined that she
had four liters of bile, causing bile peritonitis and adhesions in her abdomen.
She called the surgeons office and spoke
to the same nurse she had spoken to on
day five. The nurse told her to go to the
emergency room and bring your records
with you when you come for your follow
up visit with the surgeon next week.
Again, she didnt tell the surgeon of the
call even though at trial she testified that
this sounded a little weird to her.
The patient was evaluated at Wake Med
in NC, emergently transferred to a hospital
where, after initial testing, a surgeon who
did not have much experience in repairing
major biliary injuries like this, took her to
surgery, creating a massive vertical scar.
While in surgery that surgeon began
sending photos to a liver transplant surgeon, who told him to place drains, close,
and transfer the patient to his service.
That initial surgery was about 6 hours
because there were by now massive adhesions and it took a long time to locate
what remained of the right and left hepatic ducts. The common bile duct was
found with a surgical clip on it (as one
might expect after the misidentification).
While she was in the hospital for her
first surgery, the surgeon who did the
gallbladder surgery called and left several messages on the patients cell phone,
telling her how sorry he was and how he
had to apologize because no one in his office told him about her calls.
Several months later she had a definitive repair in a 12-hour surgery by the
transplant surgeon (David Gerber, MD),
who created a much smaller horizontal
incision. Gerber had to go inside the liver to locate what remained of the right
and left hepatic ducts. He also had to deal
with both the massive adhesions from the
bile peritonitis and the adhesions from
the first exploratory surgery. Evidence
at trial was that had Dr. Gerber seen her
first, she would have avoided the massive
vertical incision and scarring.
A year later she had a huge abdominal
mesh implanted because of the hernia
caused by the combination of the large
vertical (caused by the surgeon who had
little experience doing this type of a repair) and smaller horizontal incisions
which basically crisscrossed. That also
was about an eight-hour operation. She
went about 2 years before stricturing
down her repaired anastomosis between
what remained of her right and left hepatic ducts and her duodenum. That was
an eight-day admission for implantation
of stents. Shortly thereafter she had a
procedure to remove the stents. She also
testified that her hernia was now recurring and she was likely headed to yet another surgery.
The surgeon was sued for the original gallbladder surgery. The nurse was
not named individually because at the
time the lawsuit was filed it was unclear
whether the patients messages of continued pain had actually been passed on
to the surgeon. Plaintiff pleaded a claim
against the corporation contending that
either the messages had or had not been
passed to the surgeon but that either way,
the corporation was liable.
Past medical bills were $340,000.
There was testimony at trial, some of
which came from the defense experts,
that the damages caused by the nurses
failure to pass the messages would have
been greatly reduced. The two week delay
caused the need for the multiple abdominal surgeries, the later abdominal wall
repair, a massive vertical scar and, arguably even the stenting procedure. (One
of the defense experts testified that most
the damage to the common bile duct was
caused by the effects of the bile during
the two week delay.)
The plaintiffs case was finished by
10:30 the second day of trial. The court adjourned the afternoon of the second day of
trial because of scheduling issues with two
defense experts. The jury received the case
at 12:40 p.m. on the third day of trial and
returned its verdict in favor of the surgeon
but against the practice group (for the
negligence of the nurse) at 3:00 p.m. (See
also the story, VLW, Jan. 25, 2016).
[16-T-006]
Type of action: Medical Malpractice
James Abrenio, Fairfax
Injuries alleged: Gallbladder surgery and

follow-up
Attorneys for defendant: Robert Donnelly and

Robyn Ayres, Richmond
Name of case: Christine Hommel v. Surgical

Associates of Fredericksburg
Plaintiffs experts: Glenn Sanders MD, General

Surgery, Maryland; Michael Leitman MD, General
Surgery, New York; David Gerber MD, hepatobililary
surgeon repaired the injury, North Carolina; Sherri
Smith LPN, nursing standard of care, Midlothian
Name of judge: Gordon F. Willis

Date resolved: Jan. 6, 2016
Amount: $1.85 million
Defense Experts: Stephen Hill MD, General

Surgery, Roanoke; Christopher Steffes MD, General
Surgery, Detroit
Attorneys for plaintiff: Benjamin W. Glass III and
Insurance carrier: The Doctors Company
Verdict or settlement: Verdict
valawyersweekly.com
Man died during series of tests set by cardiologist

Defense Verdict
Jody Houston, a 54-year-old avid kayaker and stock trader, presented to the defendant cardiologist on March 25, 2013, with
a history of chest pain for two months,
gastric reflux, high cholesterol, a lifetime
of cigarette smoking, and an abnormal
EKG during a EGD a week prior. In fact,
the EGD had to be aborted due to concerning ST changes after the administration of
anesthesia. Given Houstons risk factors
for coronary artery disease (CAD), the defendant scheduled him for a nuclear stress
test the next day, an echocardiogram in
five days, and then a follow-up appointment in a week to review the diagnostic
test results and discuss treatment options.
Houston underwent the nuclear stress
test on March 26. He performed well. He
achieved his max heart rate, reached 12.5
METs, and had no complaints as he exercised strenuously for 10 minutes. During
the recovery phase, however, he complained of 8/10 burning chest pain, which
resolved in minutes on its own. The de-
Lawsuit |
test. Plaintiffs cardiology expert testified

that Houstons burning chest pain and sinister ST elevations on the EKG were redflags for severe CAD which warranted immediate catheterization and intervention,
namely stenting or bypass surgery.
Defendants theme was that Houstons
strong performance on treadmill did not
MITCHELL
LEWIS
fendant determined that the EKG results

from the stress test were borderline, that
the nuclear images did not show ischemia,
and so he kept to his plan for Houston to
have an echo on April 1 and then return
for follow-up. On March 31, 2013, however,
Houston was found dead in his basement
couch by his son. At autopsy, the medical examiner found severe multi-vessel
CAD, including 90 percent occlusion in the
mid-left anterior descending artery and
mid-circumflex artery.
Houstons widow sued the cardiologist
alleging that he was negligent by not immediately sending Houston for a cardiac
catheterization after the nuclear stress
suggest severe cardiac disease, there

were no ST elevations on the EKG, and
that the cardiologist met the standard of
care by continuing his work-up.
After four days of evidence, the jury deliberated for 2.5 hours before returning a
defense verdict.
[16-T-024]
Type of action: Medical Malpractice Wrongful death
Demand: $2,300,000.00
Injuries alleged: Wrongful death of a

54-year-husband and father of three
Verdict or settlement: Defense Verdict
Name of case: Rein, personal represenative of the

Estate of Houston v. Cardiologist
Court: Alexandria City Circuit Court
Case no.: CL 15-1492
Tried before: Jury
Offer: none
Amount: $0
Attorneys for defendant: Byron Mitchell and
Kristina Lewis, Fredericksburg
Plaintiffs experts: Marc Cohen, MD (cardiologist, New Jersey); F. Lee Tucker,MD (pathologist,
Roanoke)
Date resolved: Feb. 11, 2016
Defendants experts: Sam Ahuja, MD (cardiologist, Maryland); Mark Wick, MD (pathologist,

Charlottesville)
Special damages: Lost services, solatium
Insurance carrier: Professionals Advocate
Name of judge: Hon. Lisa B. Kemler
n continued from page 1
and a stimulant. The second incident was

a suicide attempt, he later told doctors at
the University of Virginia.
Discharged from U.Va., Harris was
given a prescription for Selegiline and
told that he would have to allow a twoweek washout period if he switched to
another anti-depressant. The hiatus was
intended to avoid a possibly dangerous
overlap of medication.
Harris resumed taking Selegiline on
March 31 and discontinued its use on
April 3. He told the school psychiatrist he
did not like the way the medication made
him feel.
Harris sought some medication on his
own. He ordered two bottles of dextromethorphan, an often-abused cough suppressant. On April 6, after a conversation
with his girlfriend about their relationship, he took a heavy dose of the dextromethorphan.
A mixture of Selegiline and dextromethorphan can produce serotonin syndrome, a potentially fatal condition.
The two sides clashed over whether
Harris was trying to take his own life.
He was just getting high, said his
familys attorney, Anthony M. Russell.
This wasnt a kid who wanted to die or
was suicidal, he said.
The hospital encounter
Harris later sought medical help, his

lawyers said.
Feeling ill and having researched the
possibility of a drug interaction, Harris
asked a fraternity brother to take him
to the hospital, Russell said. When Mark
arrived at the Lexington hospital that
evening, he told the staff he had taken
600 milligrams of dextromethorphan,
Russell added.
Those details were not explicit in the
judges opinion letter.
On examination at the ER, Harris
behavior was abnormal, but he was
alert and able to follow commands,
Dorsey said.
Schirmer the doctor asked Harris
if had taken any Selegiline or Vyvanse,
the two drugs involved in Harris last
ER visit.
The doctors notes indicated Harris
said he had not taken Selegiline regularly for months.
The doctor testified that Harris denied
taking any Selegiline for months, according to Russell.
The distinction was critical, Russell said.

Challenged about his Selegiline use,
Harris said he had not taken any since
he left the hospital, referring to his ER
visit two weeks prior.
In fact, he had taken Selegiline just
three days before.
Schirmer concluded a reaction between
dextromethorphan and Selegiline was
unlikely. Without treatment for serotonin
syndrome, Harris died within hours. He
was 20 years old.
Bolstering the defense theory that
Harris intentionally concealed his use of
Selegiline were several statements he reportedly made at the hospital. He said, I
got it right this time and, I knew what
I was doing.
Schirmer also said Harris told him he
was sorry he had not died in his earlier
suicide attempt.
Lawyers for the medical providers contended Harris was attempting to commit
suicide on April 6 and deliberately misled
Dr. Schirmer to that end, Dorsey wrote.
The jury was instructed on the elements
of contributory negligence, which would
bar any recovery by the patients family.
Virginia is among a handful of states
where a tort victim is denied all compensation if his own fault contributes in any
degree to his injury.

The jury decided in favor of the medical
providers. Harris family would get nothing under the verdict.
The jury decision triggered post-trial
legal arguments heard by Dorsey.
The one rare case
Dorsey reviewed prior fruitless efforts

by Virginia medical defendants to cast
blame on their patients. Seven times such
cases had made their way to the Supreme
Court of Virginia; seven times the court
said contributory negligence did not apply.
One problem is that, under the case
law, a patients own negligence must be
contemporaneous with that of the medical provider.
Given the existing jurisprudence, of
course, such a case would need to present
truly unique facts. The facts of the present case certainly reach that threshold,
Dorsey wrote.
[I]f there are cases under Virginia law
where contributory negligence should be
permitted in a medical malpractice action,
this is one of these cases, the judge said.
Dorsey said his task was not to embrace either partys theory of the case,
but to decide whether more than a scintilla of evidence existed to allow the jury
to consider contributory negligence.
The suicide theory was backed by evidence that, taken in its totality, satisfied
that standard, Dorsey said.
The negligence was sufficiently contemporaneous, Dorsey decided. The two
actions were inextricably causally linked
together, with Marks untruthfulness
leading to Dr. Schirmers ruling out serotonin syndrome as a likely cause of
Marks condition, Dorsey said.
The judge distinguished all seven prior
cases considered by the Supreme Court.
Dorsey also rejected the defense contention that all evidence outside of the basic emergency room presentation should
be excluded. The additional evidence was
relevant and not unfairly prejudicial, the
judge said.
Russell the lawyer for Harris family said the doctors testimony about
what Harris said in the emergency room
should have been excluded under Virginias Dead Mans Statute.
That law forbids uncorroborated testimony about what a decedent said before his
death that undercuts the plaintiffs claim.
We take extreme objection to the characterization that Mark lied to Dr. Schirmer, Russell said.
An appeal is planned, Russell said. I
feel strongly about this case, he said.
Mark and the family have not only
been victims of the medical community,
but now victims of the legal arena as well,
and were going to do anything and everything we can to rectify the situation,
Russell said.
Representatives of doctors and hospitals will be watching.
The case was obviously tragic for all involved, said Richmond attorney W. Scott
Johnson, who spoke for the Medical Society of Virginia.
Nevertheless, he said health care providers have to rely on an accurate history from a patient. If they dont get the
straight story, the diagnosis and treatment may be ineffective.
I think sometimes patients get frustrated when people ask the same question again and again. They may be trying
to tease out information that could be
valuable in diagnosing and treating the
patient, Johnson said.
Schirmer and the hospital were represented by Joel M. McCray of Richmond, who did not respond to a request
for comment.
Dentist |
persions on Broadheads management

skills, advanced Heards false claim that
Broadhead was forcing him out of Front
Royal because of personal greed, disclosed confidential information to Heards
attorneys and destroyed communications
with Heard.
The allegations supported a plausible
claim that Watterson, in combination
with Heard, acted intentionally, purposefully and without lawful justification
to injure Dr. Broadhead in his business,
Dillon wrote.
The Front Royal practice was harmed,
the complaint alleged, because Broadhead had to spend extra time with staff
members to reassure them he was not
going to fire them and the practice was
being properly managed. He also had to
spend money to arbitrate his business
dispute with Heard. His complaint alleges damages of $300,000.
Dillon dismissed Broadheads claim for
breach of fiduciary duty without prejudice, holding that he failed to show the
existence of a duty arising from an agency relationship.
Deal was undone
In 2007, Broadhead and Heard en-
Malpractice |
doctor and the healthcare company that
stripped him of privileges last year. The
doctor took Centra Health Inc. to court
over the dispute, and Burnette agreed to
seal that entire case from public view.
Artery repair
The patients case arises from 2013 surgery to repair an aneurysm in his common iliac artery, according to allegations
in the lawsuit filed by James E. Martin.
Surgeon Mark A. Salvaggio recommended open surgery instead of an endoscopic procedure, the suit alleged. During
surgery, Salvaggio allegedly cut Martins
left ureter, damage that went undiscovered for more than a month.
Martin lost his left kidney as a result of
the alleged surgical mistake, his lawsuit
contended.
An amended complaint named Salvaggio, his practice group and Centra Health,
owner of Lynchburg General Hospital.
Martin is represented by Les S. Bowers
and Anthony M. Russell of Roanoke.
The suit alleged Centra credentialed,
privileged, and otherwise permitted Dr.
Salvaggio to perform general and/or vascular surgery at its facilities even though
Centra knew or should have known Salvaggio was not capable of performing
vascular surgery in compliance with the
standard of care.
Martin claimed he and all Centra patients reasonably relied on Centras assertions that health care providers at its facil-
tered into a purchase agreement for

Broadhead to buy the Front Royal practice. Broadhead made his first payment
in 2007, and was scheduled to make his
second payment in 2012. During the interval, the two dentists practiced together as partners.
A multi-year transition period is typical in the sale of a dental practice, according to Byrnes. Negotiating the sale and
purchase of dental practices is a specialized matter, he said, and buying a practice is not as straightforward as it might
appear to practitioners fresh out of dental school. The larger insurance framework may be less complicated than in a
medical practice, malpractice premiums
usually are lower than for physicians and
most practices have a strong good will
value, as many patients attend the same
practice for years.
But deals that dentists put together on
their own may come unraveled. Byrnes
said he has handled several disputes
arising from the sale of a dental practice in recent years.
Byrnes represented Broadhead when
he and Heard could not resolve differences over Heards desire to stay on as

ities were skilled, competent and qualified.
Centra revoked Salvaggios surgery
privileges in January 2015 on grounds
that Salvaggio engaged in conduct detrimental to patient care, Martins suit
claimed. The suit said Centra banned the
doctor from its facilities.
Defensive pleadings
Centra responded to the suit with a

demurrer and a challenge to Martins expert certification. Virginia law requires a
medical malpractice lawsuit be based on
an experts written opinion supporting a
malpractice claim.
Burnette noted prior circuit court
decisions recognizing the possibility of
a negligent credentialing claim. Centra
cited no case law to the contrary, he said.
While a 2001 opinion held that a patient
must plead reasonable reliance on a hospital credentialing process to advance a claim,
Burnette said Martin had met that test.
The Court finds that the plaintiff
states with sufficient particularity a
claim for negligent credentialing and
privileging. Therefore, Centras Demurrer will be overruled, Burnette said.
Centra also sought to use the expert
opinion requirement to force the credentialing claim out of the case. Centra
questioned whether the plaintiffs expert
opinion extended to credentialing.
Centra urged Burnette to take a private look at Martins expert report. The
law provides that a judge may conduct an
Alcohol abuse |
ing erratically; just be sure to document
the thought process and actions.
4. A last chance agreement is a
possibility. Another similar option is requiring the employee to sign a last chance
agreement once caught violating company policies. Again, the EEOC makes
clear that this is not a requirement, but
rather an option. Generally, under such
an agreement an employer agrees not
to terminate the worker in exchange for
an employees agreement to receive substance abuse treatment, refrain from
further alcohol use, and avoid further
workplace problems. A violation of such

an agreement usually warrants termination because the employee failed to meet
the conditions for continued employment.
Counsel can help draft an ADA-compliance last chance agreement.
5. An employee can be fired if he or
she raises alcoholism for the first time
in the face of impending termination.
As noted above, an employer can impose
the same discipline that it would for any
employee who fails to meet its standards
or who violates a consistently-applied conduct rule. So even if the employee raises
a part-owner with the Front Royal practice. When Broadhead refused to alter
their deal, Heard resigned and set up
a competing dental practice. Broadhead
brought an arbitration against Heard,
which resulted in a settlement.
Surprise witness
When preparing for the arbitration,

Broadhead was surprised to find Watterson on the witness list for Heard, Byrnes said. Byrnes said that when Broadhead tried to subpoena documents from
Watterson, she said she did not have
any to share. Broadhead later obtained
from Heard documents indicating Watterson had taken an active role in aiding Heard to disadvantage Broadhead,
according to Byrnes.
The two dentists settled their dispute
and Heard went on to purchase a dental
practice in Luray. Broadhead filed suit
against Watterson and DPM.
Broadheads complaint said discovery in the underlying dispute had revealed copies of emails Watterson sent
to Heard in 2012 and 2013 in which she
discussed highly negative assessments
of Dr. Broadhead involving the strained
relationship between the two dentists,
the sale of the practice, Broadheads
management style and personality, the
opening of Heards competing practice
and Broadheads ability to successfully

manage the practice after the sale was
completed.
Broadhead alleged he also obtained
copies of emails between Watterson and
a Front Royal staff member in which
she counseled that person about finding
alternative employment.
Watterson directly injected herself
into the dispute by drafting a To Whom
it May Concern letter, attached to the
complaint. That letter characterized
Heard as the high producer in the practice, who enjoyed significant popularity
in the community at large, and projected significant attrition of patients when
they discovered Dr. Heard was no longer
practicing with Front Royal.
I had no doubt that Dr. Heards departure would not be received well by patients, especially if they were uninformed,
the letter continued. The letter said that
business decisions were made that went
against my advice, and the consequences
of those decisions may produce negative
outcomes for years to come.
We didnt really believe she would
interject herself into the underlying litigation, with the letter, Byrnes said.
Fairfax lawyer John P. Sherry, who
represented Watterson, could not be
reached for comment.
in camera review of the certifying expert

opinion for good cause.
Burnette ruled there was no need for
him to examine the scope of the expert
opinion because he determined the credentialing claim fell outside the malpractice sphere.
Burnette looked to language in the
Medical Malpractice Act defining malpractice and health care.
A cause of action for negligent credentialing and privileging does not fit within
the bounds of this statutory language,
the judge wrote.
The action was not based on health
care because the alleged negligent
credentialing and privileging acts by
Centra would have long preceded the
medical treatment provided to Martin,
Burnette said.
Rather this tort action is based on
corporate negligence in the credentialing
and privileging process of physicians,
the judge said.
This Court holds negligent credentialing and privileging as a separate cause
of action does not fall within the scope of
the Virginia Medical Malpractice Act and
therefore expert certification is not
required for this particular part of the
plaintiffs claim, Burnette wrote.
Burnette overruled Centras motions
for in camera review and to dismiss.
This holding should not be viewed
as relieving the plaintiff from otherwise complying with the requirements
of the Virginia Medical Malpractice Act
with respect to his remaining claims
other than negligent credentialing and
privileging, Burnette said.
an unknown alcohol problem at time of

termination, the employer can still proceed with the action if it would have been
imposed on a nonalcoholic employee.
However, if an employer intends to apply some lesser form of discipline, and the
employee first raises alcoholism at that
time, reasonable accommodations (after
imposing the lesser form of discipline)
should be considered. If the employee
mentions the alcoholism but makes no
overt request for accommodation, ask if
the employee believes an accommodation
would prevent further problems with
performance or conduct. If the response
is yes, or if the employee raises it of his
or her own accord during the disciplinary
meeting, begin an interactive process.
This process will help determine if an accommodation is needed to correct the problem. The employer can ask the employee
and his or her health care provider (through
the employee) about the connection between
the alcoholism and the performance or conduct problem. The employees input can be
sought as to what accommodations may be
needed. A common reasonable accommodation in these scenarios is a modified work
schedule to permit the employee to attend
an on-going self-help program, but the ultimate choice rests with the employer so long
as it believes the proposed accommodation
is designed to succeed.
A case to watch
Centra was represented by Daniel T.

Sarrell and Elizabeth G. Perrow of Roanoke. They did not respond to a request
for comment.
The Virginia Hospital & Healthcare
Association declined to comment on Burnettes ruling that a credentialing claim
was outside the scope of the malpractice
statutes.
I am not in a position to comment on
this case or speak to the issue at this
time, said VHHA vice president and general counsel R. Brent Rawlings.
We will likely monitor as the issue
progresses through the courts, he said.
In the related case, Bowers said he
sought to intervene and to open the file
on Salvaggios dispute with Centra.
In that separate civil action, Salvaggio
claimed Centra sought to eliminate competition by purchasing his practice and
then firing him without cause.
Centra won an order sealing the case
before filing its response to Salvaggios
claim.
Lynchburg Circuit Court Clerk Eugene C. Wingfield confirmed an order was
entered on Oct. 29 forthe sealing of all
pleadings and other materials until further order of this court.
Bowers said he learned that, after he
sought to intervene in the case on behalf
of Martin, Burnette put a hold on the proceedings to allow Salvaggio and Centra to
mediate their dispute.
Online court records indicate Burnette
ordered the case stayed on March 8.
Rich Meneghello practices law in

Portland, Oregon.
Suing doctors |
medical practice sued under the Medicare Secondary Payer Act (MSP) because
State Farm refused to pay for the medical
services of its insured patient.
In general, the MSP provides a private
cause of action against the primary payer
(that is, the insurance company) for damages if the primary payer fails to provide
payment or reimbursement for payments
made by Medicare. The MSP statute was
enacted to make Medicare coverage secondary to any coverage provided by private insurance programs, and the MSP
private right of action was added to enforce Medicares status as secondary.
Mental illness |
fer confidential short term counseling,
substance use treatment referrals and
resources for health living as well as
other services. Each program differs
and can be tailored to match the companys needs and employers desire. Not
only do EAPs address mental health

In this case, the insured patient had been
injured in an automobile accident, and the
medical practice filed a claim for approximately $26,000 for treatment that it provided to the insured. The insured was also
covered by Medicare, and the medical practice also submitted its claims to Medicare.
State Farm denied coverage on the ground
that the injuries resulted from the insureds preexisting condition. Notably, the
basis for State Farms denial had nothing
to do with whether the insured was eligible
for Medicare. Medicare made a conditional
payment of $5,000 to the practice.
In an earlier, separate case, the 6th

but many also offer financial planning,
legal referrals and career counseling.
Additionally, EAPs offer a host of
workplace resources that can help with
retention and attract quality workforce
candidates. Many programs are equipped
to advise employers on safety, communi-
U.S. Circuit Court of Appeals, the federal appellate court with jurisdiction for
Michigan, had ruled that medical providers cannot maintain a private right of action under the MSP against group health
plans that deny coverage for any reason
other than Medicare eligibility. Curiously, when that same appellate court three
years later considered the arguments in
Michigan Spine, it found that MSP regulations warranted limiting the earlier
ruling to lawsuits against group health
plans. Therefore, it ruled that a private
cause of action under the MSP may proceed against a non-group health plan,
such as State Farm, that denies coverage
on a basis other than Medicare eligibility.
Consequently, the Michigan Spine case
arguably opens two doors, albeit that one

door is open wider than the other. First,
medical practices can sue primary insurers
under the MSP and cite Michigan Spine
if they are not paid for providing treatment to Medicare-eligible patients that
are covered under non-group health plans.
Second, medical practices can also now at
least argue that the Michigan Spine decision should be expanded to cover denials of
payment by group health plans, because allowing different outcomes under the MSP
for group health plan and non-group health
plan denials is nonsensical.
cation and absence management. In recent years, employers have accessed EAP
resources to assist them with adapting to
the needs of veterans. In times of crisis,
EAPs offer resources for handling layoffs
and other workplace stressors.
It is not always easy to get someone to
access the resources that they need. The
first step is often as simple as starting
a conversation and showing interest. Be
prepared to listen non-judgmentally, of-
fer support and provide direction to the

resources available to help.
Barry F. Rosen and John R. Paliga

practice law in Baltimore.
Jeffrey Berlant, MD, is medical director of Optum Idaho, a health care

company that manages the outpatient
benefits for the Idaho Behavioral Health
Plan for Idaho Medicaid members and
the Idaho Department of Health and
Welfare.
Legal solutions that

allow you to focus
on your patients.
Our Firm offers
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counsel in a wide range of legal
services to the Health Care
Industry from Risk Management,
Medical Malpractice Defense,
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One Team. Proven Results.
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Medical Law Report

LEGAL NEWS FOR THE MEDICAL COMMUNITY

Volume 13, Number 7

Address service requested

A truly unique case

Contrib allowed in med-mal lawsuit

tempt. The result was a jury verdict in

Troubling medical history

A Virginia judge has ruled that a

on April 7, 2011, as the medical staff

The Supreme Court of Virginia has not

n See LAWSUIT on PAGE 10

n See MALPRACTICE on PAGE 11

Open wide: Dentist alleges harm from letting in consultant

ment Inc., which is based in Frederick,

Being a good listener

miss Broadheads claims under Va. Code

n See DENTIST on PAGE 11

Page 3 | Medical Leave

Page 3 | Suing Doctors

Page 5 | Digitial Medicine

Employee gets double damages

When doctors bring suit to

Telemedicine in Virginia: An Update

Page 2 | Virginia Lawyers Media, March 2016

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Virginia Medical Law Report

Virginia Lawyers Media, March 2016|Page 3

Employee gets double damages in medical leave case

from the CEO saying her employment

When doctors bring suit to

The Rojas case

In Rojas v. Cigna, Cigna determined

ficiary under ERISA, one must be owed a

The Michigan Spine case

In Michigan Spine v. State Farm, a

n See SUING DOCTORS on PAGE 12

The lack of a doctors note also was not

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6 Dealing with mental illness in the workplace

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Telemedicine in Virginia: An Update

LEGAL NEWS FOR THE MEDICAL COMMUNITY