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Jury Award of $20.5 Million Reduced to $2 Million By Medical Malpractice Cap

A Virginia jury’s award of $20.5 million was reduced to approximately $2 million in compliance with Virginia’s cap on medical malpractice payments. After a mastectomy, a patient with silicone implant reconstruction visited a Kaiser Permanente oncologist for follow-up care. The oncologist did not provide adequate care, leaving the plaintiff with a significant permanent defect and pain.Jury Award of $20.5 Million Reduced to $2 Million By Medical Malpractice Cap

The Case at Issue

Over the course of the next two years, this oncologist met with the patient (plaintiff) approximately 10 times. At each of these appointments, the plaintiff called the oncologist’s attention to a lump and pain in her medial chest. On each occasion, she asked about follow-up radiology study. The oncologist consistently assured the plaintiff that what she was feeling was just scar tissue. She insisted that there was no need to worry about it, but said they would monitor it without radiology tests and studies.

After the plaintiff was diagnosed with cancer, Kaiser encouraged her to make a list of questions for her doctors and take it to appointments. The plaintiff did so. She also kept all of her notes and organized them in several binders. These notes documented the plaintiff’s claim that she had been asking about her pain and the lump in her chest, and they she was requesting follow-up radiological tests.

The oncologist’s notes from these appointments were consistently about 5 pages in length. Approximately 2.5 pages of each of these notes was a copy of the pathology report from the plaintiff’s original breast cancer diagnosis. The oncologist argued that of the remaining 2.5 pages, approximately one page contained her new notes for the specific appointment. She insisted that the only part of her notes that was copied and pasted was the pathology report. She insisted that the remainder was written and added at each appointment.

During the trial, the plaintiff and her attorneys proved that the oncologist misrepresented the facts and that her records were almost entirely copied – word for word, including typographical errors. Additional brief notations were identified, but nothing was removed from the records. Specifically, the oncologist’s records included no notation of the plaintiff’s complaint of a lump and pain.

Only approximately two years later was there a note about pain and the lump. Notably, the plaintiff refused to leave the facility until tests were performed to identify the source of the problem in her chest. At her insistence, the oncologist finally ordered an ultrasound.

Plaintiff’s Injuries

Case records list several hurts and harms:

  • Desmoid tumor that had grown until it became intertwined around and between three of the plaintiff’s ribs and a part of her sternum.
  • When the tumor was surgically approached, it was necessary for the surgeon to remove the tumor, the three ribs, and a portion of her sternum.
  • The result was a large deficiency in the plaintiff’s chest wall. This was repaired with surgical mesh. Both the deficiency and the mesh are permanent.
  • The mesh was placed directly on the plaintiff’s lung. Over time, it has adhered to the lung

The plaintiff was left with pain and paroxysms accompanying each breath. This energetic and active woman was left with pain, breathing distress, and weakness (due to the deficiency in the chest). She requires opiates to control pain and antidepressants to help her cope with the enduring physical effects.

Trial Notes

During the trial, the plaintiff’s expert oncologist testified that the tumor should have been diagnosed in December of 2012. At that time, the tumor was only 1-2 cm. According to this expert, the tumor could have been addressed at the time, when it was likely t have been surgically removed. At that time, he believed the tumor could have been removed without removing bone. He continued that if bone had not been removed there would have been no need for surgical mesh, which caused many of the permanent harm.

The defendant’s expert surgeon argued that removal of a tumor of this size requires 2 cm margins, regardless of the size of the tumor. This the surgeon claimed, would have required removal of some bone. Yet he acknowledged that the surgery did not used 2 cm margins. Thus, removing the tumor when it was smaller, would have caused a much smaller deficiency.

After two hours of deliberation, the jury returned with a verdict awarding $20.5 million in damages to the plaintiff.

Virginia’s medical malpractice award cap reduced the award to the plaintiff of $2,050,000.

Resolving medical malpractice cases in a way that can restore the plaintiff to his or her previous condition is very rare. In most cases, the financial award or settlement cannot restore the plaintiff to health.

If you or a loved one has been harmed due to the negligence or wrongdoing of a medical provider, you may be entitled to receive financial compensation for your hurts and harms. You need an attorney who can analyze the case, help you to understand it fully, and represent you compassionately and relentlessly to obtain for you the maximum compensation allowed under Virginia Law. Call Altizer Law, P.C. in Roanoke, VA. Bettina Altizer is known for her compassion for those harmed by others and for her passionate tenacity on behalf of her clients.