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.

$3.5 Million Verdict Obtained by Wharton, Aldhizer & Weaver, PLC

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Wharton, Aldhizer & Weaver, PLC attorneys, Frank Hilton and Humes J. “Tripp” Franklin, III, obtained a $3.5 Million verdict for their client in a medical malpractice case  on August 24, 2017.

The plaintiff’s spouse, a 45-year old 10th grade biology teacher, wife and mother of two, died in 2012 after a deep vein thrombosis in her leg was misdiagnosed and led to a pulmonary embolism while being treated in Crewe, VA.  Trial lasted 7 days and involved testimony from 23 witnesses, including 12 medical experts from multiple fields of medicine including orthopedics, forensic pathology, hematology and emergency medicine.

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: medical malpractice, civil litigation, domestic relations, complex criminal defense, bankruptcy, commercial and corporate finance, employment law, health care law, intellectual property matters, real estate and land use, tax planning, wills, estate planning and administration.

Hilton is a senior partner in the firm with over three decades of complex litigation experience; Franklin serves as the firm’s managing partner.  Local media in Crewe is reporting this as the longest trial and largest verdict in county history.

Humes J. “Tripp” Franklin, III Received a $175,000 Settlement for Client

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Personal Injury Case – $175,000 Settlement

Settlement/Verdict:   $175,000 Settlement

A 76-year old woman was a passenger in a vehicle that was involved in a collision at a traffic intersection.  The driver of her vehicle failed to yield the right of way and her vehicle was struck by a cargo van on the passenger’s side.  Liability was not an issue.

She was unconscious immediately following the accident and was transported by helicopter to the University of Virgina.  As a result of the accident, she suffered a laceration to the back of her head and a subarachnoid hemorrhage which caused confusion and short-term memory loss.  She was hospitalized overnight and also required 24-hour care for several weeks after returning home.

C. Frank Hilton & Humes J. “Tripp” Franklin, III Received $500,000 Settlement

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Family doctor failed to test slow-growing lump on patient’s back

Medical Malpractice Verdict – Family doctor failed to test slow-growing lump on patient’s back – $500,000 Settlement
By:  Virginia Lawyers Weekly

The decedent was an 84-year-old woman in good health who was living alone, cutting her grass with a push mower and driving her car until August 2011. Since approximately June 2007, she was treated by her primary healthcare provider. According to her family, she had a large “lump” on her back for approximately 10 years. During the time she treated with the PCP, she mentioned the lump to her family doctor on more than one occasion (although not charted) and he would tell her “it’s nothing to worry about” or “it is just a calcium deposit.” Her family remembered first noticing it as a golf ball sized lump, which gradually got bigger over the years. The PCP’s records made no mention of the mass whatsoever; however, he did reference physical examination of the decedent and noted on more than one occasion “lungs clear to auscultation and percussion.” This indicated he would have had occasion to see the mass on her back during routine office visits.

Since approximately 2005, the decedent received treatment for lumbar and cervical spine pain from a chiropractor. On three occasions in 2005, 2008 and 2009, the chiropractor noted the palpable mass on the left thoracic spine. In 2009, he sent his X-ray films out to a radiology consultant because of his concern for the mass. The radiologist interpreted the mass as being “a triangular soft tissue density overlying the dorsal spine which may correspond with the density medial to the aortic knob. The possibility of a paraspinal lesion should be considered and additional imaging is respectfully suggested.” The radiologist also stated, “An MRI of the upper thoracic spine is respectfully suggested. Previous chest films should be used for comparison purposes.”

Upon receiving the radiologist’s recommendations, the chiropractor immediately faxed the report to the PCP and requested that he order an MRI. At the same time he, he sent a release to the local hospital requesting copies of any records or reports for anything related to the spine. That same day he received a facsimile reply stating, “nothing spine related.”

On June 11, 2009, the decedent had an MRI. The hospital faxed a copy of the MRI results to the PCP and the chiropractor on June 15. On June 16, the chiropractor wrote to the PCP and pointed out that the MRI was of the lumbar spine and did not include the area of concern. He requested the PCP examine the decedent and see if a thoracic MRI was warranted. The PCP’s records that were provided to plaintiff’s counsel did not contain a copy of the June 11 MRI report, nor did they have a copy of the June 16 letter from the chiropractor. Thereafter, the PCP saw the decedent on July 28, 2009, and there is still no mention of the palpable mass or a second MRI. He did however again note on that visit “lungs clear to auscultation and percussion.”

On March 16, 2012, the decedent reported to the emergency room complaining of moderate nausea and vomiting and a headache. The ER doctor’s attention was immediately drawn to the mass on her back. He ordered labs, a CT without contrast and a chest X-ray. The decedent was discharged from the emergency department later that night with a diagnosis of nausea and vomiting, hypernatremia and headache. She was instructed to discontinue the Bactrim and follow up with her PCP within three to five days, or return to the emergency department if her symptoms worsened. The following day, the ER doctor was provided with a copy of the results from the chest X-ray. Those films revealed a “3.5 cm left upper lung mass.” He immediately called the decedent and advised her of the results. She was instructed to follow up with her PCP on March 19.

The decedent called the PCP’s office on March 19, and was instructed to return to the hospital on March 21 for a basic metabolic panel and for a check on her creatinine and nitrogen levels. On March 23, she had a CT of the chest. The CT revealed a “mass arising from the left seventh rib at the left costovertebral junction. The right is expanded by mass measuring about 5.5 x 6.8 cm. Mass extends into the left posterior lung as well as left posterior soft tissues. Impression: Large soft tissue mass arising from the left seventh rib posteriorly extending to the lung and posterior soft tissues. It may be primary neoplasm versus metastatic lesion.”

On March 26, the PCP referred the decedent to an oncologist. A biopsy taken on April 2, 2012, gave a preliminary diagnosis of a low-grade chrondosarcoma.

On Aug. 3, 2012, the decedent was taken to surgery with a thoracic surgeon and a neurosurgeon. She had a resection of the seventh rib base chondrosarcoma, including portion of ribs 6, 7 and 8 and transverse processes at T6, T7 and T8. There was no lung or aortic involvement. Following surgery, she awoke in the PACU with bilateral lower extremity numbness. She was immediately evaluated and transferred to the neuro ICU. She was later diagnosed with T5 complete paraplegia.

The decedent was discharged from the hospital on Sept. 6, 2012, to an acute rehab facility. She remained in this facility until approximately Nov. 5, 2012, when her family took her home to care for her. The family cared for her in her home until she passed away on July 4, 2013. The death certificate listed her cause of death as chondrosarcoma of the spine.

Humes J. “Tripp” Franklin, III & Thomas E. Ullrich Received a $100,000 Settlement for Client

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Premises Liability Case – Slip and Fall on Ice – $100,000 Settlement

The injured was a 32-year old married father who slipped and fell while exiting a restaurant.  The gentleman slipped on a nearly invisible patch of ice that had formed as the result of snow melting from the roof and re-freezing on the sidewalk.

As a result of the fall, he suffered a bimalleolar fracture to his right ankle.  The fracture required surgical repair which was accomplished by fixating his bones with a lag screw and a locking plate secured with locking screws.  The locking plate was then secured to the shaft with a cortical screw to suck the plate down to the bone.  After the surgery, he was ordered to remain non-weight bearing for six weeks by his doctor.  This resulted in him missing significant time at work and suffering lost wages.

At a follow-up appointment, it was discovered that he had an infection near the surgical site which was causing a burning sensation in his heel.  He was given medication to treat the infection and a crutch substitute knee platform walker to assist him without putting weight on his ankle.  He later attended sixteen sessions of physical therapy.

Although he completed his treatments and returned to work, he still continues to suffer as a result of his fall and ankle fracture.  He daily wakes up to a stiff and painful ankle.  He can no longer play with his children as he did in the past or participate in the sports that he previously enjoyed.  His ankle also puts limitations on his ability to fully perform his job.  He is unable to lift heavy items or to climb a ladder.