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Medical Malpractice Defense Verdict

After a seven-day trial, John Peterson and Sam Bernier obtained a defense verdict in favor of the Hospital.

On November 5, 2008, Plaintiff presented to the Defendant Hospital’s ED complaining of chest pain. Blood tests were ordered, and Plaintiff had an elevated troponin, indicating a probable myocardial infarction. The ED staff could not locate Plaintiff in the ED after the troponin resulted. Plaintiff testified at trial that the ED staff told him he could leave; the Hospital presented evidence that he eloped. The ED physician did not write an order directing the ED staff to call Plaintiff to ask him to return to the ED, but he testified at trial that he would have ordered the ED staff to do so if he had known about the abnormal troponin.

On November 7, 2008, Plaintiff returned to the Hospital and requested that his complete November 5, 2008 medical record be sent to his primary care provider. He alleged that the abnormal troponin had been omitted from the document production.

Plaintiff returned to the ED on November 12, 2008 again complaining of chest pain. He was diagnosed with atypical chest pain and discharged with a recommendation to follow up with his primary care provider.

Plaintiff ultimately followed up with a cardiologist on November 25, 2008. The cardiologist planned a future catheterization to rule out a cardiac cause of Plaintiff’s chest pain episodes. He did not have access to the abnormal troponin. Two days later, Plaintiff suffered a myocardial infarction resulting in a significantly diminished ejection fraction, and requiring placement of a pacemaker / defibrillator. He alleged that his once active life had been reduced to a sedentary existence.

Plaintiff filed suit in Charlottesville Circuit Court against the Hospital, among other health care providers. Plaintiff alleged and presented evidence at trial that on November 5, 2008, the Hospital negligently failed to inform the ED physician of the abnormal troponin, or in the alternative, the ED nurses failed to follow the ED physician’s order to call Plaintiff at home regarding the test results.

Plaintiff also alleged that on November 7, 2008, the Hospital breached a non-delegable duty to ensure that the abnormal troponin result reached his primary care provider pursuant to his request. He took the position that the Hospital failed to provide the test result to the document management service with which the Hospital contracted to send records to outside health care providers pursuant to patient requests. In the alternative, Plaintiff alleged that the Hospital breached its non-delegable duty to ensure the records arrived to the primary care provider, a duty that he sought to prove did not extinguish even if the document management service was an independent contractor. The Plaintiff argued that both federal and Virginia law created a non-delegable duty to ensure provision of the record. Finally, Plaintiff alleged that the Hospital was liable for the inaction of the document management service pursuant to the doctrine of respondeat superior.

Pre-trial, the court denied Plaintiff’s motion to declare the Hospital legally responsible for the November 7, 2008 failure to provide the abnormal troponin result to his primary care provider. The court held that neither the federal nor the state provisions upon which the Plaintiff relied created such a duty. The court also ruled that the abnormal troponin result was never sent to Plaintiff’s primary care provider; therefore, she was unable to rely upon it to make treatment recommendations. In light of this judicial determination, Plaintiff proceeded to trial on the theories that the Hospital failed to make the abnormal troponin result available to the document management service, and that the Hospital was vicariously liable for the negligence of the service.

After the Defendants rested, the court granted the Hospital’s motion to strike Plaintiff’s evidence as to the November 7, 2008 claims. The court agreed with the Hospital’s argument that the jury could not consider whether or not the Hospital negligently failed to provide the abnormal troponin to the document management service because Plaintiff’s Complaint did not include this claim. The court also concluded that the Plaintiff failed to present evidence to establish that the individual working for the document management service was legally an employee of the Hospital for the purpose of establishing vicarious liability. By contrast, the Hospital presented evidence that the individual working for the document management service was an independent contractor.

The jury was left to consider the allegations against the Hospital relating to Plaintiff’s November 5, 2008 ED admission. Plaintiff’s standard of care expert testified that the Hospital breached the standard of care if it failed to provide the abnormal troponin result to the ED physician or, alternatively, if the ED nurses failed to follow an ED physician order to call the Plaintiff at home regarding the abnormal troponin result. The Hospital’s standard of care expert testified that the Hospital properly delivered the Plaintiff’s abnormal troponin result to the ED physician by making it available via the electronic medical record. The expert also testified that the lack of an order by the ED physician to call the patient at home relieved the nursing staff of any obligation to take action after the Plaintiff left the Hospital.

After a seven-day trial and deliberations for over eight hours, the jury returned a verdict in favor of the Hospital.

Defense team:

John E. Peterson Jr.
John E. Peterson Jr.