

Increased Malpractice Damage Cap In Virginia Is Still Unfair To Victims
Virginia Medical Malpractice Attorney Speaks Out Against July 1 Increase in Virginia's Medical Malpractice Damage Limitation
Fairfax, VA, June 27, 2008 – Benjamin W. Glass, III, legal advocate for victims of medical negligence in Virginia, is speaking out again against the newest increase in the state’s arbitrary damage cap.
Virginia’s cap on medical malpractice damages increases to two million dollars, effective July 1st and will be the limit for all economic and non-economic damages related to a medical negligence injuries including medical expenses, lost income, and pain and suffering. Even in cases where a doctor's negligence causes millions of dollars in medical bills, a patient's recovery is limited to 2 million dollars for incidents occurring after July 1, 2008.
“As medical costs continue to rise, more and more victims of malpractice will continue to be impacted by Virginia’s arbitrary limit,” says Ben Glass. What people don't realize is that in many cases the health insurance company paying the bills is legally entitled to recover what they paid from the victim, “leaving patients and their families to foot the bill for the carelessness of their healthcare providers is blatantly unfair.”
The Virginia General Assembly created the damage caps in the 1970's to help protect providers from unreasonably high medical malpractice premiums. However, there was never any evidence in Virginia that malpractice premiums were tied to large verdicts and a number of natoinal studies have shown that damage caps have no impact on malpractice insurance premiums. And doctors in Virginia are not even required to have malpractice insurance. Despite these facts the state Supreme Court has repeatedly upheld the constitutionality of the caps.
People who sustain injuries worth less than $2 million can obtain a full recovery,” Glass said. “But in catastrophic cases were the damages exceed $2 million it’s a different story. This type of ‘solution’ puts the entire burden of solving this non-crisis onto those who have been most seriously injured by the physicians.”
A large portion of the cost of the ‘solution’ is put on Virginia’s tax payers since damage caps increase litigation costs. Fewer insurance companies will pay a fair settlement as they know that even if the case goes to trial they won’t be required to pay more than $2 million. Fewer cases are settled and more injured parties are forced to file suit and go to trial.
About Ben Glass
Ben Glass is a personal injury attorney in Fairfax, Virginia. He has been representing individuals against the insurance companies since 1983. He has authored numerous consumer publications, including The Truth About Lawyer Advertising and The Ultimate Guide to Personal Injury Claims in Virginia. He is a frequent lecturer to the legal community. Visit his web site at www.BenGlassLaw.com.
For More Information Contact:
Ben Glass
703-591-8929
ben@benglasslaw.com
The Supreme Court of Virginia has ordered a new trial for the estate of a woman who died from a pulmonary embolism after information about her life threatening condition was not acted upon by her physicians.
In May 2005 Tawanda Williams was referred to a local radiologist for a sonogram of her calf after she reported calf pain to her doctors at Kaiser Permanente. The radiologist, Vienna physician Cong Le, interpreted the study and concluded that Williams suffered from deep vein thrombosis, a potentially life-threatening condition involving blood clots in her leg. While dangerous, deep vein thrombosis is very amenable to treatment.
According the Supreme Court’s opinion, released June 6, 2008, Le reached an operator at Kaiser and, after identifying himself and asking to speak to Dr. McClain, he was put on hold so long that he “lost confidence to get in touch with [Dr. McClain] at that moment.” He stated that he was unable to leave a voicemail or talk to a human being. Dr. Le testified that previously he had problems communicating with the doctors at Kaiser by telephone. Dr. Le hung up and faxed a report to Dr. McClain.
The information that Tawanda Williams had life threatening blood clots was not acted upon by her doctor and she died six days later.
The Virginia Supreme Court said that “the evidence proved without contradiction that the communication problems in this case were begun and put in motion by Dr. Le’s failure to make direct contact with Dr. McClain, a member of his team, or Williams.” Reversing the trial court’s decision to allow the jury to determine that Dr. Le’s negligence was “cut-off” by Dr. McClain’s failure to read the report that had been faxed to him, the Supreme Court ordered a new trial.
Benjamin W. Glass, III, one of the attorneys who represented the estate said that this case “presents a patient’s worst nightmare—a test is done which shows a condition that is life-threatening but very treatable—but none of the doctors act on the request. Dr. Le should have called back and told the Kaiser operator that he had an emergency on his hands and he should also have called Tawanda Williams and told her to get to an emergency department. He had a time-bomb on his hands yet he failed to communicate the urgency of the situation to the Kaiser operator.”
Glass and his co-counsel, Frank Kearney of Washington, D.C. expect that a new trial will be held in the Spring of 2009. The Supreme Court's opinion is here.
Here is a summary of some recent verdicts and settlements in Virginia. Each case is different. Past results by any lawyer are not indicative of future results. Virginia is a conservative jurisdiction and juries tend to be very tough.
Here are the most recent summaries.
Graham Harrison, suffered from Tourette Syndrome which prevented him from working on a full time basis. He applied for partial disability benefits under a disability insurance policy his employer had with Prudential Insurance Company of America. His treating physician, a neurologist and specialist in Tourette Syndrome had recommended that he consider reducing his work schedule to less than full time to accommodate his condition which have led to chronic anxiety, a disrupted sleep pattern and agitation. His doctor felt that a four day work week with a mid week break would benefit him immensely.
Prudential denied the request for benefits. Prudential's position was that since he had suffered Tourette's Syndrome for many years his records did not document a significant recent change that would warrant a change in his work patterns. Prudential also felt that if he could work four days there was no reason that he could not work five days in a week.
At first Prudential relied on the opinion of its "medical director", Jill C. Fallon, M.D., a doctor who was Board Certified in occupational medicine but had absolutely no expertise in neurology or Tourette's Syndrome. This doctor did not even examine the claimant.
Prudential also looked at the wrong definition of disability in denying the claim.
Mr. Harrison appealed the denial of benefits and included additional reports from his well qualified physicians. On appeal, Prudential showed the file this time to Albert Kowalski, M.D. another one of its employed physicians. Not only did Dr. Kowalski not have Board Certifications in neurology or psychiatry, he had absolutely no experience in the treatment of Tourette Syndrome and indeed had not had any clinical practice since 1987. Dr. Kowalski did not examine the claimant. Despite the lack of qualifications and any current experience in actually seeing patients, Dr. Kowalski was of the opinion that the claimant's condition should have improved over time.
On the basis of Dr. Kowalski's opinion, Prudential denied the claim. In denying the appeal Prudential once again quoted the wrong definition of disability. The plaintiff again appealed and this time consulted with yet another expert in Tourette Syndrome. He was evaluated by Oliver Sacks, M.D. a clinical professor of neurology at Albert Einstein College of Medicine and an adjunct professor of neurology at the New York University School of Medicine. Dr. Sacks had authored numerous books and articles on Tourette Syndrome. It was Dr. Sacks' opinion that Mr. Harrison could maintain his effort and function very effectively for only two days at a time and then must take a break of a day to recover. He cannot function on a "standard" five day week. On the basis of this letter Prudential reversed its original decision and awarded benefits to the plaintiff. Prudential however continued to misstate policy provisions and indeed quoted language that appeared nowhere in the plan.
Two months after approving the claim Prudential began re evaluating the claim. This time Prudential took the position that the plaintiff's disability was caused at least in part by a mental psychoneurotic or personality disorder and that benefits were limited to 24 months. Prudential advised the claimant that his claim would most likely terminate the next month.
The problem with Prudential's denial of benefits this time was that there was no 24 month limitation in this policy.
Prudential also referred the file to Stephen N. Gerson, M.D. Dr. Gerson was Board Certified in psychiatry and geriatric psychiatry but listed his major professional activity as "administration." There was no evidence in the file that Dr. Gerson had any experience in the treatment of Tourette's Syndrome. He did not examine the claimant. It was Dr. Gerson's opinion that the various treating physicians and the claimant himself were simply making a "preference" for not working a five day work week. Shortly thereafter Prudential terminated benefits yet again.
Mr. Harrison filed suit under ERISA.
The court reversed Prudential's denial. The court found that "In the worst light, such conduct [misquoting policy provisions] indicates a conscious attempt on the part of Prudential to manufacture a reason for denying plaintiff benefits."
The court also found that the decision to terminate benefits was not supported by substantial evidence. The court said that Prudential had ceased on one piece of information that one of the doctor's had relayed to it to terminate benefits. The court found that Prudential had not relied on any new information to terminate benefits after it had previously approved benefits on the same information. The court also was critical of Prudential for using doctors who had no expertise in Tourette Syndrome and who never examined the claimant.
Fairfax, Virginia attorney Ben Glass represents doctor, dentists, lawyers and business executive in long term disability benefit claims.
A boy from Freehold, New Jersey who was disabled from birth has been awarded over $19 million by a Monmouth County, New Jersey jury in a medical malpractice suit, according to the boy’s attorney, Brian Drazin.
Drazin said the money will allow Bonnie Kowalski, his 10-year-old client Brandon’s mother, to pay for his care for the remainder of his life, equip their home to accommodate his disabilities, and purchase a wheelchair-accessible van to transport him. Drazin said that, being completely disabled, Brandon is completely reliant on others to care for him.
After a trial which began on February 11, the jury deliberated for two days before finding that Arvind Palav, an obstetrician, was negligent and awarded $19.25 to the boy on Monday, March 17.
Drazin said that during her pregnancy, Palav misdiagnosed Kowalski after she contacted him on September 11, 1997, complaining of pain in her abdomen. He delayed in determining she was hemorrhaging and lost a great deal of blood, according to Drazin.
Palav also failed to perform the necessary tests on Kowalski and didn’t recognize that the unborn child could be in “fetal distress” and ignored the warnings of a nurse who discovered the problem, according to Drazin.
Drazin said that Brandon, who was delivered by C-section, had to be resuscitated and was in intensive care for four months. He now suffers from severe brain damage and cerebral palsy and is also legally blind.
Over 10 defendants were named in the original complaint, which included Riverview Medical Center in Red Bank, New Jersey and the chairmen of the obstetrics/gynecology and general surgery departments of the hospital. According to Drazin, some were dismissed quickly after he found that they had no part in the delays.
Once deliberations began, Judge Louis Locascio narrowed the issues to that Palav and a surgeon who performed exploratory surgery on Kowalski were the only defendants remaining in the case.
In Illinois a jury has rejected the medical malpractice claim the family of a woman who was left in a persistent vegetative state after undergoing a surgical procedure for carpal tunnel syndrome filed against two anesthesiologists.
According to the attorneys for the family of Christina McCray, she received too much sedation during a July 6, 2001 surgical procedure in Maryville, Texas at Anderson Hospital, causing her to suffer sever brain damage.
The defendants in the case were Anesthesiologist Timothy Kurt and Gregory Collins. According the lawyers of McCray’s family, they did not properly supervise and monitor the anesthesia of McCray. They asked the jury to award approximately $20 million to the family as compensation for health care costs and non-economic damages.
McCray, 32, worked as a crane operator and had two sons, age 10 and 12 at the time of the operation. She is currently residing in a nursing home in Belleville, Texas.
There were 11 days worth of testimony heard by the jury and they deliberated for about two hours on Thursday, February 28 before reaching their decision.
A typical tactic used by Virginia medical malpractice insurance companies to defend claims ateries are mistakenly clamped or sutured or cut in surgery is to say "well, the anatomy was abnormal," and that's why it happened.
The Virgnia Supreme Court recently held that a trial court was wrong in dismissing a case where there was conflicting evidence that there was abnormal anatomy.
Clifford Lewis Fanucci, Sr., died after undergoing hand-assisted laparoscopic surgery for a cancerous growth on his kidney. Daniel Mark Hoffman, M.D. clamped the right renal artery instead of the left renal artery during surgery. When he discovered his error, he unclamped the artery but it tore, killing his patient.
There was conflicting evidence at trial about whether Fanucci's anatomy was unusual. Doctors who came in to repair the torn right renal artery that they found nothing abnormal. The pathologist who did the autopsy said he found nothing unusual about the position of the right renal artery, either.
The only doctors to testify that there was anything 'unusual' about the right renal artery were the defendant and his partner!
The Supreme Court reversed the decision of the trial court and ordered a new trial.
Comment from Virginia Medical Malpractice Attorney Ben Glass: the actions of the trial judge are frightening and demonstrate just how difficult a jurisdiction Virginia is for medical malpractice cases. As I read the opinion, there was basically guess-work on the part of the defendant and his partner as to how or why he managed to clamp the wrong artery. There was no real 'evidence' on this issue. In fact, the only real 'evidence' from two indepedent doctors who actually saw the right renal artery was that the anatomy was normal. To me this case is not even close and there is no way the judge should have stopped the jury from making the decision.
This was enourmously expensive for both parties. Even if the judge felt the case should not have been decided by the jury he should have allowed them to decide it later. Then, he could have reversed the jury's decision, but at least the Supreme Court could have reinstated the jury's verdict.
The judge was wrong.. now the parties wait at least another year, spend another $$75,000 or so to retry the case.
The Virginia DUI Defense Book will be emailed to you in just a few minutes. Just click on this link to go to the order form (it's free.)
Dan Kennedy has done something he has never done before--co-authored a book with an attorney!
Is it possible that there is one single, super-powerful secret of success of far greater importance than all others?
There is (and it was left out of the popular bestseller, The Secret.
In this 172 page book marketing guru's Dan Kennedy and Ben Glass explore the world of successful entrepreneurs to seek out and explore the secret that the most successful people on earth have.
Sample Chapters Include:
A Word About Heroes
It's Not Allstate's Fault
A Conversation You Must Have With Yourself Before You Begin
Nine Success Strategies You Must Know
"Abundance" Doesn't Care
Real World Tips to Get It All Done
Secrets of Renegade Millionaires Discovered
Read More and Find Out How you Can Get Your Own Copy
BenGlassLaw announces the start of another blog, this time devoted to car accident claims in Fairfax County, Virginia.
You can reach this blog at www.FairfaxAccidentAttorney.com
The October 2007 BenGlassLaw Newsletter is available here.
Here is the Personal Injury Yellow Page Ad from Fairfax, Virginia Attorney, Ben Glass
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Virginia's DUI and DWI expert, attorney Bob Battle, has co-authored a fantastic new book that is free to anyone who has been arrested for drunk driving in Virginia. The Virginia Drunk Driving and DWI book is available here.
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You can review Virginia personal injury and accident verdicts and settlements here.
Here is the BenGlassLaw June newsletter
The plaintiff’s vehicle was rear ended by a dump truck in Norfolk. She suffered injuries to her neck that prevented her from working as a dump truck driver. Read more.
Because the negligence occurred in California Virginia’s medical malpractice cap, which would have limited recovery to $1,000,000.00, did not apply. Read the entire story here.
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You can ge the official Joint Pretrial Statement of the $65,000,000 dry cleaners lawsuit here.
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Click on the link below to be taken to a page of summaries of reported Virginia accident and injury case verdicts and settlements. You probablhy won't find a case exactly like yours but you may find something close enough to get a 'good idea' of what your case is worth. Remember, that each case is unique.
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Click the link below to go to the PDF version of our Virginia personal injury newsletter
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Click the link below to see a summary of Virginia personal injury and car accident verdicts and settlements. While each case is different, you may see a case similar to yours. An experienced personal injury attorney can help you evaluate your case. Get our free personal injury book.
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Mary Washington Hospital in Fredericksburg, Virginia has settled five medical malpractice lawsuits filed against it after patients were injured
or died after receiving allegedly contaminated heart surgery medication.
This lawsuit is not over as two defendants, Central Admixture Pharmacy Services Inc. and B. Braun Medical, the pharmaceutical service's parent company, have not settled and apparently will go to trial.
A total of nine lawsuits were originally filed as families or patients alleged death or injury as a result of the bad medication. The surgeries were performed in 2004 and 2005.
The families were represented by Stephanie Grana of the Richmond, Virginia, law firm of Cantor Arkema.
Those interested in learning more about medical malpractice cases in Virginia should order Why Most Medical Malpractice Victims Never Recover a Dime.
Click the link below to see a directory of medical malpractice verdicts and settlements in Virginia. While each case is different, you may see a case similar to yours. Get our free Virginia Medical Malpractice Book.
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The BenGlassLaw October 2006 newsletter highlights Ben and Sandi's journey to China to adopt 6 year old Emma. Here's the newsletter.
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There is an alarming trend in this country of physician defendants making complaints to state Boards of Medicine about experts who give testimony against them. This new case from Florida makes clear that physicians who make these complaints to the Board of Medicine can be liable for defamation and other torts and cannot hide behind peer-review privileges.
Read more about this defamation case filed by a medical malpractice expert witness.
Former employee Daniel Donatelli outlines more questionable claims practices at the world's largest disability insurance company.
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Fairfax, Virginia personal injury and medical malpractice attorney Ben Glass has teamed up with the preeminent provider of law firm newsletters in the country, Newsletters Ink to present the "Effective, Ethical and Outside the Box Marketing Conference" in four locations this Fall.
This unique two day seminar is devoted wholly to teaching consumer lawyers to effectively and ethically promote and build their practices. The program teaches the change in mindset, (i.e. you shouldn't be copying what other lawyers do) followed bylooking at the "outside of the box" techniques that other entrepreuners use to build businesses and asking "how could we use that in our practice?"
The program's featured speakers include Cindy Speaker and Tom Foster . Speaker has a wealth of experience leading the marketing of large personal injury law firms and Foster is one of the country's preeminent web designers for small law firms.
Ben Glass is the creator of the Great Legal Marketing Ultimate Personal Injury Practice Building Toolkit.
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The Supreme Court of Virginia has ruled that medical experts must state opinions "within a reasonable degree of medical probability" but that a lawyer's failure to make a timely objection to an improperly phrased question means that objection is waived.
Cosmetic plastic surgeon George Bitar, MD was sued in Fairfax, Virginia Circuit Court for medical malpractice arising out of a "tummy tuck" operation. The jury found in favor of the patient and Dr. Bitar appealed the verdict.
The doctor's complaint was that the patient's expert witness, while outlining details of the malpractice, failed to couch his opinions using the "magic phrase" "within a reasonable degree of medical probability." Dr. Bitar's lawyers waited, however, until after the expert had left the courtroom to make the objection.
The Supreme Court ruled that the objection had to be made while the expert was testifying, not later. The Court upheld the malpractice verdict against Dr. Bitar.
The complete medical malpractice opinion from the Supreme Court of Virginia is here.
As many of you know, Ben and Sandi Glass will be traveling to China later this fall to adopt “Emma” a six year old girl currently living in an orphanage. She will be coming “home” to a family that includes six other brothers and sisters.
Ben and Sandi have teamed up with Love Without Boundaries, a world-wide group of volunteers dedicated to the belief that “every child counts.” Love Without Boundaries provides these children with HOPE by providing nutrition, medical care, education and loving foster families.
Sandi Glass has handcrafted jewelry which is available exclusively at the Love Without Boundaries web site. Visit the site and click on the “store” link or go directly to the store here. . All proceeds go to fund the work of Love Without Boundaries.
Finally, a useful consumer guide to lawyer advertising. "The Truth About Lawyer Advertising" is an excellent reference tool for consumers who are overwhelmed with lawyer ads on TV, the Yellow Pages and the Internet.
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JUDGE ORDERS STAY OF DEFAMATION CASE PENDING BOARD OF DENTISTRY REVIEW
Fairfax, (VA) Circuit Court Judge Kathleen H. MacKay today ordered a stay of a defamation lawsuit filed by a local dentist against three former employees of his practice.
The Virginia Attorney General’s office had asked for a stay of the $700,000 Fairfax County lawsuit filed late last year in which the dentist alleges he was defamed after one of the employees filed a complaint against him with the Virginia Board of Dentistry.
The Virginia Board of Dentistry will take up the matter in a public hearing currently scheduled to take place on June 16, 2006. The stay will be in effect at least until that date.
In the lawsuit, Farid A. Zurmati, DDS, owner of Kingstowne Family and Cosmetic Dentistry, alleges that a former office manager “made numerous allegations against [him]” that were false and defamatory and that as a result, he has suffered “personal humiliation, mental anguish and injury to his business.” The lawsuit also alleges that the former employees conspired with each other to willfully injure Furmati’s reputation. The former employees have vigorously denied the allegations.
Benjamin W. Glass, III, attorney for one of the former employees said: “My client made a confidential complaint to the board of dentistry after she witnessed several incidents in the office. We are pleased that Judge McKay stayed the lawsuit pending a full hearing by the Virginia Board of Dentistry. Citizens should feel free to file confidential complaints regarding patient safety without fear of being sued. This lawsuit will have a real chilling effect on the Board of Dentistry’s efforts to investigate complaints filed against Virginia dentists and will likely frighten other consumers who are contemplating making these types of complaints.”
The defendants and the Commonwealth of Virginia have also moved to dismiss the case entirely. The motion will be taken up after the stay is lifted, later this year. No trial date has been set.
Mr. Glass is a medical malpractice and personal injury attorney in Fairfax, VA. Pleadings in this case are available. The case is Zurmati v. Gailliot, Fairfax, VA Circuit Court, No. CL-2005-5555
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TV screenwriters could not have written a more sordid tale of corporate malfeasance. Here's the story of how one judge stood up to a major corporation, and then how Trial Lawyers for Public Justice fought to have an order unsealed which exposed this expert witness.
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The newest issue of our popular free newsletter.
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Medical liability reform back on the minds of many Virginia legislators (and not a few national legislators as well.) This package will help doctors get the full consent of their patients and offers an opportunity for legislators (state and national) to sign up their own families right now. Just click on the link below.
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Our firm, together with my friend, Rob Jenner, of Janet, Jenner and Suggs, of Baltimore, Maryland represented the family of a 74 year old man killed when he drove his car into the back of a tow truck that had stopped in the "fast lane" of southbound 495 in Prince George's County, Maryland.
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Our client was hit and injured by a falling 500 pound garage door. He suffered fractures to his shoulder, ribs, back, femur and heel.
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In August we reached a settlement in a case where the plaintiff's fibromyalgia was triggered by a car accident that occurred in Tyson's Corner, Virginia. Click the link below to reaq more.
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In July we reached a settlement on behalf of the estate of a man who's broken neck went undiagnosed for over a day after he entered the hospital. He had been involved in a minor accident and taken to the hospital with back pain. When he later developed neck pain, no one paid attention to his complaints.
Click on the link below to read more.
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