Virginia’s Largest Verdicts of 2018

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

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

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

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

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

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

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

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.

C. Frank Hilton & Humes J. “Tripp” Franklin, III Received $4,000,000 Verdict

Despite diagnosis of brain swelling, patient not referred to surgeon

Medical Malpractice Verdict – Despite diagnosis of brain swelling, patient not referred to surgeon – $4,000,000 Settlement
By:  Virginia Lawyers Weekly

This case arose from medical care provided to the plaintiff at INOVA Mt. Vernon Rehabilitation Hospital by defendant doctor from Sept. 14 to Oct. 9, 2010. Plaintiff contended that he is now permanently blind because, while under defendant’s care, he developed an extremely elevated intracranial pressure caused by hydrocephalus.

Plaintiff was in a single vehicle motorcycle accident on Aug. 14, 2010. He sustained severe head and facial injuries in the accident, for which he was transported to INOVA Fairfax Hospital for treatment. On Sept, 14, 2010, exactly one month later, he was discharged from Fairfax and admitted to defendant’s care for rehabilitation therapy at INOVA Mount Vernon Rehabilitation Hospital. Following what plaintiff argued was a seizure, defendant ordered a head CT scan two days later on Sept. 16. Plaintiff’s last head CT before being admitted to Mt. Vernon was on Sept. 2 at INOVA Fairfax. Defendant compared the Sept. 16 head CT to the Sept. 2 CT and concluded that the plaintiff had developed hydrocephalus since the Sept. 2 CT scan.

Post-traumatic hydrocephalus is a common phenomenon in cases of traumatic brain injury that was well known to the defendant. However, he did not request a neurosurgery consult upon diagnosing it on Sept. 16. He did not examine plaintiff’s eyes for the frequent hydrocephalic sign of swollen optic nerves (papilledema). From the outset, members of plaintiff’s rehabilitation team informed the defendant that the plaintiff was experiencing incontinence along with visual and gait disturbances – the classic triad of elevated intracranial pressure from hydrocephalus.

Additional head CTs taken at Mt. Vernon on Sept. 27 and Oct. 5 showed continuing hydrocephalus to such a degree that cerebrospinal fluid was ultimately forced into the cellular matter of the brain itself. Despite the two additional CTs that showed progressing hydrocephalus and two additional episodes the plaintiff contended were seizures, defendant did not mention his new diagnosis of hydrocephalus to any other physician until family members demanded on Oct. 8, 2010, that he do so because of plaintiff’s declining condition.

When the defendant finally acquiesced to the family’s demand to call plaintiff’s neurosurgeon because of his deteriorating condition, the neurosurgeon requested that plaintiff be transferred to Fairfax. There, plaintiff underwent brain surgery for the implantation of a ventriculoperitoneal shunt to relieve the intracranial pressure caused by hydrocephalus. By then, however, it was too late and plaintiff suffered permanent blindness in at least his left eye (plaintiff conceded he would have been blind in his right eye because of the severity of the brain injuries he experienced in the accident) because of defendant’s delay in requesting an appropriate consultation to treat the hydrocephalus. Plaintiff maintained that this result would have been avoided had defendant acted on his diagnosis of hydrocephalus on or about Sep. 16, 2010.

Plaintiff’s counsel requested the jury to return a verdict of $3,500,000, but the jury awarded $4,000,000.

C. Frank Hilton & Humes J. “Tripp” Franklin, III Received $300,000 Settlement for Client

Doctors failed to diagnose hematoma before performing hip surgery – $300,000 Settlement

Medical Malpractice Verdict – Doctors failed to diagnose hematoma before performing his surgery – $300,000 Settlement
By:  Virginia Lawyers Weekly

This case arose from the death of an 82-year-old woman in the spring of 2011. In March 2011, the decedent fell at her home while she was alone. At mid-day, she was found by her daughter, who came to visit for lunch. It was immediately apparent that the decedent had sustained significant head and facial trauma. The daughter called for emergency medical services and the decedent was transported to a local community hospital. There, she was evaluated in the emergency department and the emergency physician ordered several imaging studies including a CT scan of her head.

The head CT scan was interpreted by the defendant radiologist as showing no acute abnormalities. Unfortunately, the radiologist failed to observe the presence of a subdural hematoma that was between 4.3–4.5 millimeters in depth and 41.1 millimeters long, top to bottom.

The decedent was correctly diagnosed with a hip fracture on the day of the fall. Because the subdural hematoma was not identified, however, she was allowed to undergo surgical repair of the hip fracture the day after the fall. Following the hip surgery, she never regained consciousness. Because she did not progress well following the hip surgery, three days post-fall, a repeat CT scan of the head was done. That CT scan showed a 13 millimeter diameter subdural hematoma so large that it was causing a midline shift of the brain tissue of approximately 11 millimeters.

Because of this, the daughter requested that her mother be transported to a tertiary care center. Repeat head CT scans there confirmed the presence of the large, growing subdural hematoma.

On the advice of physicians at the receiving hospital, the daughter elected to honor her mother’s previously expressed wishes that heroic measures not be undertaken in such a situation. The decedent was transferred to hospice and she expired from complications of the subdural hematoma.