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$1,500,000 Result in Psychiatric Malpractice/Negligent Hospital Security Case

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In December 2023, a 41-year-old woman with a history of well-controlled schizoaffective disorder, anxiety, and depression began to experience a psychiatric decline after running out of her prescription medications. She began exhibiting schizoaffective symptoms and stopped grooming, eating, sleeping, and communicating. Her medications were refilled, but she continued to exhibit signs of psychosis in the days that followed. On Christmas Day, the woman’s mother observed the woman experience apparent hallucinations and brought her to a nearby hospital. In the hospital, it was noted that she was experiencing delusions and believed that she was on a ranch in another country. She was placed in an emergency department room with orders for “close watch” precautions (1-on-1 supervision). The woman was evaluated in the emergency department by emergency physicians, hospital psychiatric clinicians, and psychiatric providers from the local Community Services Board, all of whom agreed that the woman posed an imminent danger to herself and should be placed on an involuntary hold in the secure psychiatric unit. However, the hospital’s on-call psychiatrist declined to approve her transfer to the psychiatric unit, opining that she did not meet the criteria for admission, despite never examining the woman, speaking with her, or viewing her hospital records. Accordingly, instead of being taken to the secure psychiatric unit, the woman was kept in an unlocked emergency department room for approximately 10 hours.

During her 10 hours in the emergency department, the woman escaped from her unlocked room twice. The first time, she was stopped by a nurse and brought back to the room, which remained unlocked thereafter. The second time, she was observed escaping by several hospital employees, including a security guard, but was not stopped. She walked out of the hospital building, through the hospital campus, and onto a major road. She wandered down the middle of the roadway for nearly two miles before being struck and killed by a vehicle.

Prior to her death, the decedent worked at a poultry processing factory and served as a caregiver for her aging mother. The beneficiaries were the woman’s mother and adult daughter.

The parties settled for $1,500,000.00. The Plaintiff was represented by Alexandra Humphreys, Esq. of Wharton Aldhizer & Weaver, PLC in Harrisonburg, Virginia.

$400,000 RECOVERY IN NEGLIGENT PRESCRIBING / DRUG REACTION CASE

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In September 2019, the Plaintiff, a 67-year-old retired farmer, was seen by the defendant gastroenterologist for evaluation of his then-asymptomatic Crohn’s colitis. The Plaintiff had a historical allergy to sulfa drugs based on a childhood reaction to a sulfanomide antibiotic, which was noted in his medical records.

The defendant gastroenterologist made the decision to prescribe sulfasalazine, a sulfa drug, to the Plaintiff without viewing the allergies section of the Plaintiff’s chart. When the defendant gastroenterologist’s nurse attempted to enter the sulfasalazine order, a “med warning” appeared, alerting the nurse and defendant gastroenterologist to the Plaintiff’s sulfa drug allergy. The defendant gastroenterologist testified that he then returned to the exam room and discussed the sulfa allergy with the Plaintiff, who allegedly reported that his childhood reaction had been mild. The defendant gastroenterologist chose to proceed with the sulfasalazine prescription, overriding the med warning and prescribing enough sulfasalazine to last six months. The Plaintiff testified that the defendant gastroenterologist advised him that any reaction to the drug would be mild.

Approximately 4 weeks after initiation of sulfasalazine, the Plaintiff suffered Drug Reaction with Eosinophilia and Systemic Symptoms (DRESS), a severe, multi-system drug reaction, characterized by morbilliform cutaneous skin eruption, multi-organ injury, and a long latency period (typically 2-6 weeks). He suffered burn-like lesions to 80% of his body surface, acute hepatitis, leukopenia, neutropenia, and hyponatremia secondary to the sulfa drug reaction. After a nine-day hospitalization, he was discharged home, where his skin continued to peel and slough off his body for several months. During Plaintiff’s recovery period, he developed sepsis due to a skin infection secondary to the drug reaction and was again hospitalized.

Plaintiff alleged that the defendant gastroenterologist breached the standard of care in prescribing sulfasalazine, failing to advise the Plaintiff of the possibility of a severe, delayed reaction, and failing to offer alternative options like mesalamine, a biologic, or a “wait-and-see” approach based on the Plaintiff’s asymptomatic presentation. Plaintiff alleged the defendant gastroenterologist failed to consider the likelihood that the childhood reaction was t-cell mediated, which would result in a more severe reaction if re-exposed to the same allergen.

Defendants argued that it was reasonable to prescribe the Plaintiff sulfasalazine, as many childhood allergies dissipate over time, and that the DRESS was not related to the Plaintiff’s childhood drug reaction. Defendants further argued that sulfasalazine was the only available treatment for the Plaintiff, because the Plaintiff was averse to immunosuppression and other treatments were less effective.

The parties settled for $400,000.00 prior to trial. The Plaintiff was represented by Alexandra Humphreys, Esq. and Frank Hilton, Esq. of Wharton Aldhizer & Weaver, PLC in Harrisonburg, Virginia.

Psychiatric Malpractice/Suicide Case Settled for $1,000,000

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In the spring of 2020, a 46-year-old man with a history of well-controlled anxiety and depression began to experience an increase in his anxiety due to COVID-19 pandemic-related job and financial fears. His mental health declined over the course of a month, with his passive suicidal ideations progressing to suicidal gestures and attempts, including an attempt to jump out of a moving vehicle, an attempt to throw himself into oncoming traffic, and putting a gun to his head. After expressing to his wife that he would shoot himself if he returned home, the man was admitted to a local hospital’s inpatient psychiatric unit. He made minimal improvements over the first four days of treatment, but continued to experience significant fluctuations in his anxiety levels and mood. On the fifth day of his hospitalization, the psychiatric nurse practitioner overseeing his care charted that while the man expressed a desire to return home, his anxiety was not under control and based on his condition, he could not be safely discharged. That night, a nurse charted further decline in his condition. Despite this, the next morning, the decision was made to discharge the man home. Less than 48 hours after returning home, the man committed suicide by shooting himself in the head.

The man left behind his wife of 20 years and two teenage daughters. Prior to his death, he worked as a high-level software engineer for a Department of Defense contractor and was the beloved head coach of a local baseball team.

Plaintiff alleged that the decision to discharge the man was based on the exhaustion of preapproved insurance funds, rather than clinical readiness for discharge. Defendants alleged that the man’s anxiety and suicidality stabilized during his inpatient treatment, that he appeared markedly improved the morning of discharge, and that the hospital could not hold him against his will if he wanted to return home.

Wrongful death cases involving suicide present unique challenges. One such challenge is the “illegality bar.” Plaintiffs in civil cases in the Commonwealth are barred from recovery where the case involves the voluntary commission of an illegal act by the plaintiff or their decedent. Because suicide is still a common-law crime in Virginia, plaintiffs in these cases must prove that the decedent did not voluntarily and knowingly kill him or herself, but rather was stricken with an irresistible impulse to do so because of a serious mental health condition.

The parties settled for $1,000,000.00 prior to trial. The Plaintiff was represented by Alexandra Humphreys, Esq. and Charles “Frank” Hilton, Esq. of Wharton Aldhizer & Weaver, PLC in Harrisonburg, Virginia.

Daycare Center Left 4-Year-Old Child in a Van for Over an Hour

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Humes J. “Tripp” Franklin, III and Alexandra E. Humphreys Received a $115,000.00 Settlement for Client

This case arose from injuries suffered by a 4-year-old child while trapped in a van outside of her daycare center for over 90 minutes. In January 2020, the four-year-old child was getting picked up from school and vanned to a daycare center by the daycare center’s employees. The daycare center’s staff failed to make sure that each and every child was unloaded from the company van upon arrival. Specifically, when the van arrived at the daycare center, the employees were supposed to conduct a head count and walk around the vehicle in order to confirm that no children were left in the van. Unfortunately, on the day of the incident, the employees failed to perform these tasks. As a result, the 4-year-old child remained trapped inside the van while staff led the rest of the group inside. It was not until 85 minutes later, when the child’s mother arrived to pick her child up, that the daycare center first became aware that the child was missing. For another 13 minutes, the daycare center staff failed to account for the 4-year-old child’s location. It was only after another daycare attendee was heard stating that the 4-year-old was in the van that the 4-year-old was actually found. When the child was removed from the van, the child was red in the face, crying, and their clothes were soiled. Over 90 minutes elapsed between the child being left in the van and their discovery. During that time, the child had no food, no water, no access to a bathroom, and no access to their asthma medication. As a result of this incident, the child was diagnosed with PTSD and manifested dramatic behavioral changes. These behavioral changes included refusing to sleep in their bed alone, following adults when they leave the room so as not to be left alone, ruminations concerning the experience, excessively apologizing, and loud breakdowns in response to events that triggered the experience of being entrapped.

Wrongful Conception Case Settled for $250,000

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Virginia Lawyers Weekly – Published May 22, 2023

A 34-year-old married man underwent a vasectomy procedure performed by his primary care physician. Two post-vasectomy semen analyses revealed that the vasectomy had failed and the patient was highly fertile. Despite this, a nurse aide, at the direction of a physician, informed the patient that the PVSA results were “good and normal.” When the patient asked for confirmation that “good and normal” meant that the vasectomy was successful, another nurse aide advised him that a physician had reviewed the PVSA results and confirmed the success of the procedure. Relying on the practice’s assurances that he was sterile, the patient resumed sexual relations with his wife, resulting in the conception and birth of a healthy baby.

In Virginia, a plaintiff in a “wrongful conception” case may not recover damages for the cost of rearing a child. Rather, damages that can be presented at trial are limited to the mother’s medical expenses related to the pregnancy and pain and suffering. The medical damages in this case were less than $23,000, with the majority of the settlement representing compensation for pain and suffering.

The Plaintiffs were represented by Alexandra Humphreys, Esq. of Wharton Aldhizer& Weaver, PLC in Harrisonburg, Virginia.

Virginia Supreme Court Revives Sexual Assault Victim’s Claims Against The Church of God for Former Pastor’s Post-Retirement Acts

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On April 29, 2021, the Virginia Supreme Court ruled that the Virginia and international branches of the Church of God could still be liable for the acts of a former Church of God pastor who sexually abused a 13-year-old congregant after his retirement. The decision reverses the Waynesboro Circuit Court’s grant of demurrers as to the plaintiff’s negligent hiring, negligent retention, vicarious liability, and negligent infliction of emotional distress claims against the Church.

In a complaint filed in the Waynesboro Circuit Court, Plaintiff alleged that Jonathan Eugene King engaged in inappropriate sexual behavior, misconduct, and abuse of young women and girls over the course of more than three decades while serving as pastor at various Church of God churches. Between 1967 and 1995, the Church of God received complaints from congregants at Church of God churches regarding Pastor King’s inappropriate conduct and relationships with young girls in his congregations. Despite this knowledge, in August 1995, the Church hired King to serve as pastor at Celebration Church of God in Waynesboro, Virginia. Over the next ten years, at least a dozen women and men made written complaints to designated Church of God officials regarding Pastor King’s continued unwanted and increasingly emboldened sexual behavior toward young, female congregants. In 2002, the Church attempted to address King’s conduct by sending him to a weeklong counseling program. After returning from counseling, King’s sexual misconduct not only continued, but became progressively more serious and forceful. While many complainants begged the Church to take action to stop King from hurting other young women, the Church refused to take preventative action with regard to King, allowing him to continue serving the Church in a position of authority and trust.

During his tenure as pastor of Celebration Church of God, King cultivated a relationship with a minor congregant, Jane Doe, and her family, often inviting Jane and her parents to his home for spiritual advising and fellowship. In 2011, King retired from his position as full-time pastor, but continued to serve the Church in other capacities, maintaining his pastoral license and continuing to provide spiritual counseling to the Church’s congregants, including the Does. In 2016, King sexually molested 13-year-old Jane while she visited his home.

Plaintiff brought claims against the Church of God and various Church officials for negligent hiring, negligent retention, vicarious liability, intentional and negligent infliction of emotional distress, willful and wanton negligence, fraud, and failure to warn and protect. The Church of God filed demurrers as to all counts, asserting that the complaint failed to state any cognizable claim against the Church. The Church argued that it could not be liable to Jane for because King sexually assaulted Jane approximately five years after he retired from full time ministry; because the sexual assault occurred at King’s home and that King was not acting within the scope of his employment; and the assault on Jane was not foreseeable, as more than 10 years had passed since the last documented complaint about King.  The Waynesboro Circuit Court sustained the demurrers and dismissed the case in its entirety. Plaintiff appealed.

In its April 29, 2021 opinion, the Supreme Court revived the negligent hiring, negligent retention, vicarious liability, and negligent infliction of emotional distress claims against the Church.

          i.     Negligent Hiring and Negligent Retention.

The Court ruled that Plaintiff’s claims that the Church negligently hiring or negligently retained King after his retirement from his role as full-time pastor could go forward. The Court noted that the reports of King’s “inappropriate conduct” received by the Church prior to 1995 were insufficient to put the Church on notice that King posed a particular and specific risk of sexual abuse. However, it found that when viewed in conjunction with subsequent reports of unwanted conduct of a sexual nature, the totality of the allegations showed that “King’s conduct was [] progressing,” such that the Church knew or should have known that King posed a specific danger of sexual battery to congregants. Accordingly, the Church could be held liable for negligent hiring and negligent retention of King to the extent they utilized King as an agent after his retirement in 2011, including in a part-time or volunteer capacity.

The court also rejected the Church’s arguments that the sexual assault on Jane was too temporally remote to impose negligent hiring or negligent retention liability on the Church. The Court noted that the allegations, including a pattern of progressively emboldened misconduct and the failed attempt to reform King’s conduct through counseling, were sufficient at the pleading stage to show that King posed a foreseeable, continued risk, despite the passage of more than a decade since the last reported instance of misconduct.

         ii.     Vicarious Liability.

The Court also found that the Church could be vicariously liable for King’s post-retirement sexual assault, noting that “it is certainly possible to retire from full time ministry as a pastor and, nevertheless, retain a role within the church as an employee, volunteer, or agent.” The Court rejected the Church’s argument that it could not be vicariously liable for the sexual assault because at the time of the assault, King was motivated solely by his own desires, bringing his act outside the scope of employment. The Court found the allegations that King regularly offered physical gestures of comfort to his spiritual advisees and that he sexually touched Jane after first initiating contact under the guise of offering non-sexual comfort were sufficient to create a presumption that King was motivated both by his employer’s business and his own, rather than a purely personal motive. Noting the well-established pleading standard for vicarious liability, the Court also found that the allegations that King’s role with the Church included off-property spiritual advising and that he was alone with Jane at the time of the assault under the guide of offering spiritual advice were sufficient to establish, at the pleading stage, that King was acting within the scope and course of his agency with the Church when he assaulted Jane.

The Court held that Plaintiff could also recover damages for negligent infliction of emotional distress from the Church assuming she met her burden of proof on either negligent hiring/retention or vicarious liability.  The Court affirmed the lower court’s dismissal of the other counts against the Church.

The case is captioned Jane Doe, By and Through Her Father and Next Friend, Jack Doe v. Michael L. Baker, et al. Additional Party Names: Church of God, Int’l Gen. Assembly, Jonathan Eugene King, No. 200386, 2021 WL 1684889, at *1 (Va. Apr. 29, 2021). The full opinion is available at http://www.courts.state.va.us/opinions/opnscvwp/1200386.pdf.  Jane Doe is represented by Humes J. Franklin, III and Alexandra Humphreys of Wharton Aldhizer & Weaver. The appeal was handled by Jeff Adams and Lucas Pangle of Wharton Aldhizer & Weaver on behalf of Jane Doe.

 

 

Virginia’s Largest Verdicts of 2018

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Virginia Lawyer’s Weekly has published their list of Virginia’s Largest Verdicts in 2018.  Wharton Aldhizer & Weaver’s med-mal verdict in Augusta County is listed as number six.

Smith v. Baca and Augusta Emergency Physicians, Ltd.

Forty year old mother of two teenagers, happily married to her high school sweetheart, had a sudden onset stroke at her parents’ home with slurred speech, facial droop, difficulty walking, flaccid arm and leg.  911 was called by her mother specifically for stroke response.  The patient could be heard slurring her speech in the background of the recording.  The patient could not be airlifted because of weather.  Symptoms subsided during transport but resumed before arrival at the hospital.  The emergency doctor diagnosed migraine headache and prescribed a migraine cocktail.  He also ordered a head CT that left TPA as an option to treat ischemic stroke.  Forty minutes later the symptoms broke through and the doctor prescribed another migraine cocktail.  The doctor did not consult a neurologist or utilize the hospital’s telestroke neurology consultation system within the 4.5 hour window to order TPA, a clot busting drug for ischemic strokes.  The patient’s symptoms continue to worsen until an MRI is ordered 50 minutes after the TPA window closed.  The MRI showed a massive posterior circulation stroke.  The patient was transferred to MCV.  Following placement of an EVD and two attempts at craniotomy, the patient succumbed to brain stem herniation, the family having to make the decision to discontinue life support.  Significantly, the ER doctor changed his note the day of her transfer to add information making it appear that he had considered stroke and TPA – notations that were not originally in the note.  Also, the doctor testified falsely in his deposition that he had passed both parts of his board exam on his first attempt.

The attorneys representing the plaintiff were Frank Hilton, Tripp Franklin and Alexandra Humphreys.

Appeals Court Affirms Decision Striking Down Incumbent Protection Act

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Wharton, Aldhizer & Weaver, PLC, is pleased to announce that the United States Court of Appeals for the Fourth Circuit affirmed a lower court decision striking down Section 24.2-509(B) of the Code of Virginia, commonly known as the Incumbent Protection Act, in its entirety.

The Incumbent Protection Act granted incumbent politicians who stand for re-nomination the power to dictate the method of nomination used by their parties. WAW represented two political party committees and three grassroots political activists who challenged the Act. These plaintiffs alleged that the Act infringes on their First Amendment right of free association. In January 2018, District Court Judge Michael Urbanski found the Act unconstitutional. Nearly a year later, the Court of Appeals for the Fourth Circuit affirmed that decision, holding:

a state may not force a political party to hand control over its nomination method to a single, self-interested individual; the private interest of an incumbent in winning reelection cannot, and certainly not in the manner chosen here, predominate over the associational rights of political parties.

The Plaintiffs were represented before the Court of Appeals by Jeffrey R. Adams and Lucas Pangle of Wharton, Aldhizer & Weaver, PLC, located in Harrisonburg and Staunton, Virginia, and John C. Wirth of Nelson, McPherson, Summers & Santos, L.C., located in Staunton, Virginia.

Lead attorney Jeff Adams described the Court’s decision as “a victory, not just for political parties and their members, but for every citizen of Virginia. We all have an interest in a political system that is fair, open, and respects fundamental constitutional rights.”

Wharton, Aldhizer & Weaver, PLC is a full-service law firm with offices in Harrisonburg and Staunton. The firm serves individuals and businesses in the Shenandoah Valley and the Mid-Atlantic states in the areas of: bankruptcy, commercial and civil litigation, corporate finance, employment law, health care law, intellectual property matters, medical malpractice, real estate and land use, tax planning, wills, estate planning, and administration.

Family wins $3.5M Med-Mal Verdict in Augusta

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A jury in Augusta County recently handed down a $3.5 million verdict in a medical malpractice suit involving the family of a woman who suffered a fatal stroke that went misdiagnosed.

Family wins $3.5M Med-Mal Verdict in Augusta
By:  Virginia Lawyers Weekly

A jury in Augusta County recently handed down a $3.5 million verdict in a medical malpractice suit involving the family of a woman who suffered a fatal stroke that went misdiagnosed.

The $3.5 million award is unusual for a normally conservative area such as Augusta.

Once the medical-malpractice damages cap in Virginia Code § 8.01-581.15 is applied, though, the family will only be able to recover $2.15 million of the $3.5 million awarded.

Staunton attorneys Frank Hilton, Tripp Franklin, and Alexandra Humphreys represented the woman’s family in the case against Dr. Antonio Baca, the emergency room physician at Augusta Health that treated the woman, and Augusta Emergency Physicians.

“We’re happy we came away with a good result from the case,” Franklin said. “But cases like this are tough, particularly on the family. It’s also tough knowing the jury awarded the kind of damages they did in a case like this, but because of the cap we’re not able to recover almost $1.5 million of it. We obviously tried to prepare the family ahead of time for that, but it doesn’t make things easier.”

Stroke went misdiagnosed

The woman, who was 40 years old and a mother of two children, began complaining of a bad headache one evening in June 2015. Eventually she began slurring her speech, had difficulty walking and then experienced paralysis on one side of her body. She was transported from her location in Highland County via ambulance to Augusta Health in Fishersville.

Upon her arrival at the hospital, Baca ordered a CT scan and began treating the woman for a migraine. However, an MRI conducted hours later revealed the woman had suffered an ischemic stroke.

Franklin said he believes had an MRI been done earlier after the woman’s arrival, or even if Baca had consulted with a neurologist or utilized any of the other stroke protocols available, he and his team could have introduced a tissue plasminogen activator (TPA) that could have saved the woman’s life.

“Normally you have about a four-and-a-half-hour window from the time the patient begins experiencing symptoms of an ischemic stroke to introduce the TPA,” Franklin said. “In this case, she began experiencing symptoms shortly after 9 p.m., and even after the hour transport in the ambulance she arrived at the ER with about two-and-a-half hours before the TPA window closed. By the time the doctors had discovered what was happening, it was too late.”

The woman was transferred to MCV Hospital in Richmond where she later died.

A conservative area

In terms of the money awarded, Franklin confirmed that juries in Augusta did not have a history of large verdicts in medical malpractice cases.

“Augusta is a pretty conservative area,” Franklin said. “As far as we could tell, there hadn’t been any other medical malpractice verdicts in Augusta that were larger.”

Franklin was unsure if this verdict sets any precedent moving forward for Augusta or even that part of the state. The medical malpractice cap in Virginia continues to rise by $50,000 every year until the maximum amount that can be recovered reaches $3 million. That’s not set to happen until 2031.

But Franklin did mention a similar case that was filed against the same medical group in July also in Augusta. According to the Staunton News Leader, that case is seeking $5 million in damages. Franklin, Hilton and Humphreys put their final demand in this case at $1.9 million prior to trial.

“There’s just no way to tell what kind of jury you’re going to get or what you feel like they’re going to award,” Franklin said. “The facts of each case are so different, so you just never know. But it is something to definitely keep an eye on moving forward.”

Incumbent Protection Act Struck Down by Federal District Court

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Wharton, Aldhizer & Weaver, PLC, is pleased to announce that the Federal District Court for the Western District of Virginia struck down Section 24.2-509(B) of the Code of Virginia, commonly known as the Incumbent Protection Act.

The Incumbent Protection Act grants incumbent politicians who stand for re-nomination the power to dictate the method of nomination used by their parties. WAW represented two political party committees and three grassroots political activists who challenged the Act. The Plaintiffs alleged that the Act infringes on their First Amendment right of free association.

The Court agreed, holding that:

At bottom, the Act provides express statutory benefits to incumbents at the expense of political parties’ associational rights. Defendants have not shown any state interest that justifies such an intrusion into the 6th Congressional Committee’s constitutional protections. Virginia law allows political parties to conduct a variety of nomination methods, and the Constitution does not permit a state to grant incumbents power to take away that authority to further their individual interests. The Act fails constitutional muster.

The Plaintiffs were represented in court by Jeffrey R. Adams and C. Frank Hilton of Wharton Aldhizer & Weaver, PLC, located in Harrisonburg and Staunton, Virginia, and John C. Wirth of Nelson, McPherson, Summers & Santos, LC, located in Staunton, Virginia.

Lead attorney Jeff Adams described the Court’s decision as “a victory for the First Amendment freedom of association and the right of citizens to hold their elected officials accountable.”

Adams expressed his gratitude to expert witness Jeffery A. Jenkins, Pd.D., the Provost Professor of Public Policy, Political Science, and Law and the Judith and John Bedrosian Chair of Governance and the Public Enterprise at the University of Southern California. According to Adams, “it has long been clear that the Incumbent Protection Act cannot withstand Constitutional scrutiny. The critical questions in this case were: who has standing the challenge the Act, and when? Professor Jenkins testified that the Act distorts the electoral process to the advantage of an incumbent politician, whether or not it is actually invoked by the incumbent. The Court relied on Professor Jenkins’ clear, convincing and uncontradicted testimony in finding that the 6th Congressional Committee has standing to challenge the Act.”

Wharton Aldhizer & Weaver PLC is a full-service law firm with offices in Harrisonburg and Staunton. The firm serves individuals and businesses in the Shenandoah Valley and the Mid-Atlantic states in the areas of: bankruptcy, commercial and civil litigation, corporate finance, criminal law, domestic relations, employment law, health care law, intellectual property matters, personal injury, plaintiffs medical malpractice, real estate and land use, tax planning, wills, estate planning, and administration.  For more information, please visit www.wawlaw.com.

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