Recent Successes

November 30, 2007
Medical Malpractice Defense Verdict
After a jury trial, Joan M. Mielke, Esquire and Neal H. Lewis, Esquire obtained a defense verdict on behalf of a family medicine physician in a medical malpractice case in Fredericksburg, Virginia.  The plaintiff, an elderly woman with significant cardiovascular co-morbidities, alleged our client failed to properly treat her sprained ankle and blisters and failed to educate her about future potential problems, such as pressure ulcers. Plaintiff claimed that the physician’s alleged negligence caused her to lose her left leg in an above-the-knee amputation.

The plaintiff had fallen and injured her ankle while living with her adult daughter who was her primary caregiver. She sought treatment from a hospital emergency room (“ER”) where she was diagnosed with a sprained ankle. Rather than following up with an orthopedist within five days of her ER visit as requested, she presented to our client, a family practice physician, complaining of continued ankle pain and swelling.

Our client instructed and advised her to see a PMR specialist in addition to an orthopedist, and to make these appointments before she left the office.

The plaintiff did not follow the physician’s instructions only later, after further prompting by our client, plaintiff saw an orthopedist.  However, by the time she plaintiff saw the orthopedist three weeks later, she had developed full thickness pressure ulcers around her lower leg.  The orthopedist ordered and started immediate wound care therapy, but the wounds worsened and became infected. After five weeks of wound care therapy, the plaintiff required an above-the-knee amputation of the left leg.

At trial, the plaintiff alleged the blisters were on her ankle when our client examined her and that she ignored the plaintiff’s concerns about the blisters.  The plaintiff further argued that the doctor should have explained that blisters could cause wounds and infection especially considering the patient’s significant cardiovascular co-morbidities.  Plaintiff also argued that the doctor was negligent by failing to provide an urgent referral to an orthopedist, to prescribe wound care for the blisters, to diagnose and treat infection, and to provide the appropriate level of patient education. Specifically, plaintiff argued that the physician should have warned the plaintiff about the development of pressure ulcers and their dangers.

We proved that our client did properly educate the plaintiff and based on her history of noncompliance, proved she simply was not a credible historian.

We showed that plaintiff’s experts ignored the medical records in forming their opinions, but instead relied upon select testimony from the plaintiff’s family members. 

We then presented expert testimony that the plaintiff’s pre-existing conditions, though extensive, did not warrant an urgent orthopedic or other referral in light of the defendant’s well-documented physical findings and that any injury to the plaintiff occurred well after the plaintiff’s visit to our clients.  The jury agreed and returned a defense verdict in less than an hour of deliberations.

October 9, 2007
Court of Appeals Decision
The Virginia Court of Appeals issued an opinion affirming the May 2005 case decision of the Virginia State Health Commissioner to award a Certificate of Public Need to HCA to establish Broadlands Regional Medical Center, a 164 bed general acute care hospital in Loudoun County, Virginia. Jeannie Adams, Esquire argued the case before the Court in Arlington, Virginia on July 18, 2007. This latest opinion marks the most recent successful step in what has now become a six year battle to build Broadlands, spearheaded by Jeannie Adams and Thomas Hancock, Esquire. The facility has been vigorously opposed by Inova Loudoun Hospital Center.

The October 9, 2007 opinion addresses several issues of importance in the administrative law context. First, Inova argued that the Commissioner’s consideration of the Broadlands hospital application was barred by the doctrine of collateral estoppel, a concept never before applied to the COPN process.

In its opinion, the Court established that the standard of review to be used in determining the application of the doctrine of collateral estoppel, is de novo. Applying this standard, the Court concluded that collateral estoppel did not preclude the Broadlands application because the Commissioner noted distinct factual differences in his review which were not “actually litigated” in an earlier interation of Broandlands. Furthermore, the Court held that Inova’s position, if carried to its logical extension would lead to absurd, illogical and nonsensical results in that a medical entity would have one and only one opportunity to apply for a COPN for a particular project, a concept the Court found to be “antithetical to serving the public need as outlined in the COPN statutory scheme.”

The Court also analyzed Inova’s allegation that the COPN review process concerning Broadlands was irreparably and incurably tainted by ex parte communications urging approval of the Broadlands project. The Court clearly established the standard of review for its review of the Commissioner’s conduct in the proceedings, holding that it must be “plain that the agency’s conclusions were determined by the improper evidence and that a contrary result would have been reached in its absence.” In so holding, the Court rejected Inova’s argument that it must only show that the improper evidence could have had a significant impact on the Commissioner’s ultimate decision. The Court also affirmed the appropriateness of the remedy ordered by Circuit Court Judge T. Markow in the form of a remand back to the Commissioner which resulted in the May 2005 approval decision.

The Court further adopted a test first articulated by the United States Court of Appeals for the District of Columbia for determining whether an administrative process has been irreparably tainted by outside contacts. The Court held that the test is whether the extraneous factors intruded into the “calculus of consideration” of the individual decision maker, and found that legislative contacts made in Broadlands did not intrude into the calculus of consideration of the Commissioner. In short, Inova was unable to produce evidence of a nexus between any of the communications it alleged were improper, and the Commissioner’s decision to approve Broadlands. For more information, click here.

Events

March 31, 2008 and April 9, 2008
Two-part audio series
"The Patient Safety and Quality Improvement Act:
  The New Frontier in Patient Safety"

This two part audio conference presented by attorneys, B. Page Gravely, Jr. and Molly Huffman, will familiarize participants with the PSQIA, the proposed rules governing its implementation, the potential applications of a PSO and the roadmap for gaining certification. For more information, click here.

February 25, 2008
We've Moved our Fairfax Office
All of our phone numbers have remained the same but we are now located at:

3975 Fair Ridge Drive
Suite 475 South
Fairfax, Virginia 22033
Office: 703.591.3440
Fax: 703.591.7646

February 11, 2008
General Assembly
"High Court Med-Mal Cases Prompt Legislative Response"
published Virginia Lawyers Weekly by Alan Cooper

The General Assembly is well on its way to answering a recent Supreme Court of Virginia case that identified a hole in the Medical Malpractice Act.

The court noted that the phrase "professional services" was not defined. Lobbyists representing both doctors and trial lawyers have hashed out an agreement that likely will pass.

. . . The court's comment that the phrase "professional services" was not defined in the act created concern among healthcare providers over whether allegations of negligence would be covered by their medical malpractice or comprehensive general liability policies, according to W. Scott Johnson, a lobbyist for the Virginia Health Care Association and other health related entities. For more information click here to download a PDF of the complete article.

October 3, 2006
Medical Malpractice Graduate Course (LAWE 762) A Law School Course That Examines the Intersection of Law and Medicine in Medical Malpractice Litigation.

When & Where: Spring Semester 2007. University of Richmond School of Law. Sean P. Byrne, a director in the firm and an adjunct assistant professor of law in the University’s School of Law and an adjunct assistant professor in the School of Continuing Studies will be teaching this course which is open to law students, physicians, risk managers, and other health care professionals. For more information, click here.

Special Recognition

May 14, 2007 - HDJN is honored to have been chosen as one of two finalists in the small employer category for The Greater Richmond Area Employer of Choice Award (and the only law firm). The Richmond Times-Dispatch announced the finalists and winners on May 12, 2008. We understand Richmond Magazine also will be advertising the competition and results in June, so keep an eye out for it. Congratulations CRT (small employer category), SnagAJob (medium employer category) and VCU (large employer category) who are the winners of this year’s award.

March 23, 2007 – We congratulate Richard L. Nagle for being selected for inclusion on the Washington DC Super Lawyers list for 2008! This is quite an honor as only 5% of Washington, D.C. area attorneys have been named to the list.

December 5, 2007 - Richard L. Nagle was listed in the December issue of the Washingtonian as a defense attorney that Washington's plaintiff lawyers privately say they least like to see. In the fifth year of compiling a list of top lawyers the Washingtonian came up with some 800 attorneys or about one percent of the estimated 80,000 lawyers around Washington. Congratulations on being in the top 1 percent of Washington's best!

New Additions to the Firm

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