We All Make Mistakes

We all make mistakes. Mistakes happen at home; they happen driving to work, mistakes are made here in the law firm, and mistakes happen in the practice of medicine. A victim seeking compensation arising from a medical mistake, "medical malpractice," faces legal challenges to recovery in Virginia which are unique among tort victims. This is why having an experienced Virginia medical malpractice attorney can make or break a case.

For instance, unlike all other personal injury claims, medical malpractice cases have a cap, or limit, on recovery imposed by Virginia law which applies regardless of the severity of the injury or amount of damages suffered.¹ Also, a medical malpractice case cannot begin until an appropriate expert provides a signed certification confirming that the harm arose from a breach of the applicable standard of care.² Not just any "expert" will do. Virginia requires that the certifying expert have the same or similar clinical experience as the potential defendant "within one year" of the mistake at issue, and that the expert be familiar with the standard of care in Virginia. Finding the medical expert who satisfies these criteria, and who is willing to criticize another professional colleague, is sometimes impossible; and always costs money.

Additionally, obtaining the relevant medical records and identifying the potential providers – and their employers – who may be responsible for mistakes can be daunting. The advent of electronic medical records has reduced human-input to "charting by exception." Translated, this means: 90% of the medical record is complete with presumptive normals (and charting designed to facilitate reimbursement) before the patient ever presents. The providers presumably then override the auto-populated format to document complaints and symptoms relevant to diagnose, treat and communicate the patient's present symptoms.

Questions to Consider

These are just a few of the many challenges imposed to create financial disincentives to pursing malpractice cases in Virginia. The legislative deck is stacked decidedly in favor of healthcare providers from start to finish. To be prepared for, and to overcome, these hurdles, early evaluation and action must be taken to identify issues and claims, and to preserve evidence which may be destroyed or lost in the ordinary course. Following is a list of questions and issues to consider at the outset of each potential malpractice case:

1. Is there information outside of the medical record such as video, voice messaging or text messaging relevant to the claim?
2. Are there laboratory slides, biologic samples, toxicology or orthopedic appliances or devices which need to be preserved?
3. Are there parties or witnesses whose testimony should be preserved?
4. In cases of wrongful death, was an autopsy performed?
5. Is an autopsy necessary?
6. Who should perform the autopsy and where?
7. Who should be invited to attend the autopsy?
8. When does the statute of limitations expire?
9. Limitations periods vary for minors;
10. Limitations periods may extend for retained foreign bodies;
11. Limitations periods may extend for failure to diagnose cancer;
12. Virginia Tort Claims Notice may be required within one year for providers employed by the State;
13. Apologies and "expressions of sympathy" by healthcare provides are inadmissible as evidence of liability by statute!³
14. Evidence of the standard of care required may be offered only through the testimony of expert witnesses;
15. Does the potential defendant have a reported claims history?
16. Does the potential defendant's insurance policy have a "consent to settle" provision?
17. Is there a "better" choice of potential venues to file the claim?
18. Do the injuries and damages justify the expense associated with pursuing the claim?
19. Do the medical records corroborate the plaintiff's understanding of the treatment provided?

Conclusion

Of course this is not an exhaustive itemization of issues, but the statutory framework governing medical malpractice cases demands early understanding and evaluation of the obstacles to recovery. Without exception, the cases are defended vigorously, and they are expensive to prosecute. Hospital systems and insurance underwriters have little fear of defending cases in Virginia where the malpractice cap has effectively eliminated their duty to protect the healthcare providers from multimillion dollar verdicts. The job of an underwriter has already been performed by the Virginia legislature. As illogical as it may sound, the cap on recovery actually serves as a disincentive to the insurance carrier's obligation to resolve the most egregious cases, because, the carrier's attitude becomes: "well, the most we can lose is the cap, and regardless of the merits of the case, there is always a chance we might win."⁴

Each client and each case is unique. Despite the considerations outlined here, we take pride specializing in medical malpractice cases and our ability to understand the consequences suffered by our clients, developing their stories, and leveling the playing field when litigating these cases. Over decades of trying hundreds of malpractice cases, Gentry Locke has developed the staff, the experience and the reputation necessary to bring justice to our clients whose lives have been upended by medical mistakes. Our medical malpractice attorneys are supported by staff including registered nurses familiar with not only the medical issues, but also the litigation tactics and defenses asserted in response to thousands of claims over the years. Each member of our team works together with our clients and our referring counsel toward a resolution which provides accountability for the mistake.

Footnotes

1. Va. Code § 8.01-581.15.

2. The "standard of care" is defined as "the degree of skill and diligence practiced by a reasonably prudent practitioner.." Va. Code § 8.01-581.20(A)

3. Va. Code § 8.01-581.20:1

4. This attitude actually extends another step in cases a carrier expects to lose: "we will appeal and delay any recovery to the plaintiff."

Originally published by June 2024

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.