Mobile menu toggle Menu

Author: Dan Frith

Dan Frith has over 25 years of experience representing individuals and families in cases of medical malpractice throughout Virginia. He has been named "Best Medical Malpractice Attorney" by Roanoker Magazine and is a member of the Million Dollar Advocates Forum. To speak with Dan, contact him by email at

Non-Competes in the world of Coronavirus

March 23, 2020

These are troubling times. Every person and every business in America will be affected. Retailers, restaurants, bars, movie theaters, etc., will be firing, furloughing, and/or laying off hundreds of thousand employees…many of whom have employment contracts which prevent them from working for a competitor.

Virginia courts will enforce reasonable non-compete and non-solicitation contracts and they use a “3 prong test” to evaluate just how reasonable those restrictions are. First, the court will look to see if the restriction is broader (read more restrictive) than is necessary to protect a reasonable business interest of the employer. Second, the court will look to see if the restriction unfairly prevents the employee from earning a livelihood and feeding his/her family. Typically, a court’s decision to enforce is decided by the available evidence on these two prongs.

However, I did say Virginia courts use a “3 prong test” so what happened to the third prong? Well, the third prong has rarely been at issue in the past and almost no court has issued an opinion either validating or invalidating a non-compete contract based upon the third prong. So what is this rarely used third prong? It is whether the non-compete contract should be void as against public policy.

What could be more against the public policy in Virginia than to prohibit a recently fired or furloughed employee from going to work and feeding her family in a situation our country has not faced since World Wars I and II? Folks, I am not an alarmist but we are headed toward a downward financial spiral not seen in the lifetimes of most Americans. I cannot think of one good reason why a Virginia court would uphold a non-compete contract in these troubling times when to do so would hurt not only the involved employee/family but the whole Virginia economy.

VA Hospitals: Our Veterans Deserve Better

September 11, 2019

Here is the deal. You serve your country in the army, marines, navy, or air force and in return your country takes care of your health needs. People who were in the reserves or National Guard may also qualify if he/she was called up for active duty.

The problem: the loyal men and women who served our country are not getting good (maybe even decent) health care. Want proof? Take a look at this article in the Washington Post titled, ” How Veterans Affairs failed to stop a pathologist who misdiagnosed 3,000 cases .” The article tells the story of chief pathologist Robert Morris Levy on the staff at the VA hospital in Fayetteville, Arkansas. It appears Dr. Levy was an alcoholic and his alcoholism affected his ability to correctly interpret tissue slides and perform other routine tasks normally handled by pathologists.

How bad was it? VA officials say Levy made 3,000 errors or misdiagnoses dating back to 2005. However, the number of those affected will be much greater, and the full repercussions of Levy’s actions may not be known for years. Federal prosecutors charged Levy, 53, last week with three counts of involuntary manslaughter in the deaths of three veterans. VA officials now acknowledge that he botched diagnoses of at least 15 patients who later died and 15 others whose health was seriously harmed.

My Take: Who was supervising this physician? Someone had to know he had a problem and that is was affecting his ability to perform his job…an important and potentially life-saving job. I get it that doctors are human but systems have to be in place which catch problem doctors (at the VA or elsewhere) before lives are lost. Veterans deserved better!

Neil Armstrong’s Bypass Surgery

August 1, 2019

Neil Armstrong was an American Hero. He flew 78 combat missions in the Korean War, was a test pilot for new planes, was the commander for Apollo 11 and became the first man to walk on the face of the moon.

All of his accomplishments aside, it is his health history and the medical care he received which prompts me to write today. In 1991 at the age of 61, he suffered a heart attack while snow skiing in Colorado. He died in 2012 shortly after undergoing a heart bypass surgery in Cincinnati, Ohio. Seven years after his death, the New York Times published a detailed report about the confidential settlement of a wrongful death case brought on his behalf against his health care providers. You can read the NYT’s report here.

My Take: Armstrong received care from a local suburban hospital to treat serious heart disease. He, and his family, decided against going to an academic institution with highly experienced cardiologists, interns, and fellows specifically trained in cardiology. The doctors at the hospital chosen by Armstrong decided to perform immediate bypass surgery for a non-emergency situation…a situation which can often be managed with medications and lifestyle changes.

Temporary wires were placed in his heart to regulate heartbeats. The wires were later removed by a nurse.  While the wires were being removed, Armstrong’s heart started to bleed and his blood pressure dropped. He was taken to the hospital’s catheterization laboratory, rather than to an operating room. There the doctors drained blood from Armstrong’s heart and then moved him to an operating room. He died one week later.

We see smaller hospitals and even regional hospitals take on patients they have no business treating. Why? Because there is big money in providing complex medical care and young doctors are eager to learn how to perform the “next big thing” in medicine or surgery. My advice is to search for hospitals that have an established reputation in the medical procedure at issue. Having a “highly trained doctor” is important but make darn sure that doctor is also “highly experienced.”

SOVAH: Bad Medicine – Dangerous Hospitals

April 24, 2019

These words are not mine they belong to James Sherlock, a retired Navy Captain who has spent years studying health care. These words are part of the subject line of a letter written by Mr. Sherlock to Virginia Governor Ralph Northam. The letter stated the hospitals serving Danville and Martinsville, Virginia have been found by the Centers for Medicare/Medicaid Services to be “extraordinarily dangerous, ranked for quality among the 6% worst in the United States.”

Mr. Sherlock is getting his information from an important source – the Centers for Medicare and Medicaid Services or CMS. More particularly, a wonderful service provided by CMS called Hospital Compare. Hospital Compare provides consumers of health care with information about the quality of care provided by over 4,000 Medicare-certified hospitals across America. The service rates hospitals on a 5 star basis…1 star the worst care and 5 star is the best.

Sadly, CMS gives Danville Regional Hospital and Martinsville Memorial Hospital (both part of SOVAH Health) only a 1 star rating. Virginians living in this part of our Commonwealth deserve better and, if they cannot get good medical care in Danville and Martinsville, they need to go where they can.

Robotic Assisted Surgery: Is it a good thing?

January 8, 2019

The recent news is full of reports of hospitals purchasing million dollar robots for surgeons to use when they perform operations.  The robots are used in all kinds of surgeries including bariatric procedures, hernia repairs, gall bladder removal, appendectomies, and a host of other surgeries.  NBC News presented an informative report titled, The da Vinci surgical robot: A medical breakthrough with risks for patients.  You can see the entire report here.

The NBC News report focused on a particular type of robot, the da Vinci Surgical System.  It is a robotic surgical system made by the American company Intuitive Surgical. Approved by the Food and Drug Administration (FDA) in 2000, it is designed to facilitate complex surgery using a minimally invasive approach, and is controlled by a surgeon from a console.

Many experienced and competent surgeons I have spoken with tell me there is little need for robots in surgery.  I am certain many of those surgeons are making a valid point while others may feel threatened by new technology.  So, wonder why two of the largest hospitals in southwest Virginia, Carilion Roanoke Memorial Hospital and LewisGale Medical Center are singing the praises of their new robots…and pushing doctors and patients to use the technology?  My bet is that the da Vinci system is a money maker.  My bet is these hospitals are pushing robotic surgeries because they can send the patient a larger bill for a robotic assisted surgery.  That is okay if robotic assistance is truly an advancement for patient outcome and safety.  However, I bet that many times the risks to the patient outweigh any potential benefit.  The NBC News report describes what little experience and training some surgeons have with this new technology. Lack of adequate training and experience leads to complications and patient death.

My recommendation:  If your surgeon tells you he/she can use a robot to perform your surgery, ask him/her why is robotic assistance needed, how many hours of training have they had with the new technology, and how many of the same surgeries they are recommending for you they have successfully performed using robotic assistance. 


Bleed Out: HBO Special

December 17, 2018

Physicians and hospitals commit malpractice every hour of every day.  Don’t believe me?   Check out this trailer for an HBO special set to air tomorrow – BLEED OUT.


Screening Colonoscopies: Are there Risks?

July 12, 2018

No American between 40 and 80 is unaware of the recommendation for screening colonoscopies.  The American Cancer Society recommends that people at “average risk” of colorectal cancer start regular screening at age 45. This can be done either with a test that looks for signs of cancer in a person’s stool, or with an exam that looks at the colon and rectum (a visual exam or colonoscopy).  I have had two screening colonoscopies in my life and am fortunate to report both were normal and no complications were encountered…but not everyone avoids potential complications.

The Yale Center for Outcomes Research and Evaluation (CORE) decided it wanted to quantify the frequency and severity of harm from this common cancer screening, performed in roughly 14 million people each year.  What they found might surprise many: 1.6% of 325,000 otherwise low-risk healthy patients who had a colonoscopy in the year 2010 experienced a complication serious enough to send them to a hospital or emergency department within 7 days.  

A lot of things can go wrong even after colonoscopy in an outpatient setting or an ambulatory surgery center.  Perforations or lacerations to the colon can cause bleeding and hemorrhage or even infections that don’t show up for a day or more; sedative drugs can cause reactions resulting in hypoxia, aspiration pneumonia, and cardiac arrhythmias. 

My Take:  The type and frequency of risks associated with screening colonoscopies does not mean you should avoid following the American Cancer Society’s recommendations.  Colon cancer is easily diagnosed and, if not timely diagnosed, can lead to premature death.  My advice is that if you experience any post colonoscopy abdominal pain or blood in your stool, get to a hospital emergency department promptly.  Tell the doctors about your recent colonoscopy and your concern that your colon may have been perforated or that you are experiencing symptoms from some other complication from the colonoscopy.  An abdominal CT, with contrast, can typically determine if you have a serious problem.  

My last advice relates to the experience of the physician performing your colonoscopy and those who assist in the procedure.  Go to a gastroenterologist – a physician with dedicated training and unique experience in the management of diseases of the gastrointestinal tract and liver.  Gastroenterologists are specialists who receive training in endoscopy (upper endoscopy, sigmoidoscopy, and colonoscopy) by expert instructors. In rural Virginia, I see many general surgeons performing screening colonoscopies.  I prefer to have a doctor who has specialized training in the procedure and who performs colonoscopies with great frequency…not a general surgeon who might take out an appendix today, a gall bladder tomorrow, repair varicose veins two days later, and perform one colonoscopy a month.  Also, if you are having your colonoscopy outside of the hospital setting (like an ambulatory care center), make sure there is an anesthesiologist present at the facility and do not settle for a nurse anesthetist, who is not a medical doctor. If complications from anesthesia occur, you don’t want your life to depend on just how quickly you can be transferred to a nearby hospital with anesthesiologists on staff.

We have previously discussed the risks associated with colonoscopies in multiple posts:

  1. “Routine Procedure” anything but routine




Late Diagnosis of Lung Cancer

July 12, 2018

I want to share with you the facts of a very sad case recently reported in a legal journal.  A 58 year old male smoker underwent a routine physical, which included a chest x-ray.  The x-ray was interpreted as normal by a reviewing radiologist.  Three years later, the patient was diagnosed with metastatic lung cancer.  Despite chemotherapy, radiation and other therapies, he died 20 months after his diagnosis.  

The patient’s wife sued the radiologist for failing to identify a suspicious 1.5 centimeter mass in the left lung which was visible on the x-ray.  The lawsuit alleged that had the mass been identified an appropriate follow up CT scan would have resulted in a prompt diagnosis of the cancer, and surgery to remove the mass would have had a 70 percent chance of cure.  No surprisingly, the trial resulted in a substantial verdict for the patient’s widow.

My Take:  Radiologists sit in darkened rooms looking at hundreds if not thousands of images every day.  Images of bones, kidneys, lungs, pancreases, brains, livers, and more.  Some of those radiologists are not working in the hospital radiology department but may be in their house sitting in their pajamas interpreting the images via a process known as “teleradiology”…not very reassuring to me.  We have written extensively on medical malpractice by radiologists and the problems with teleradiology:







How to Find a Good Doctor (in Virginia)

April 10, 2018

I am sometimes amazed how people find and choose their doctors.  You do want a good and competent doctor don’t you?  Sometimes you have no options…you are admitted to the hospital with stomach pain, diagnosed with appendicitis and need emergency surgery.  In those cases you agree to take whichever general surgeon is offered by the hospital.  But what about those cases where you have time to consider and select a doctor?  How do you go about finding the surgeon to fix your hiatal hernia…perform elective back surgery…or replace your hip or knee?

This article will provide information sources and comments which will help you become an informed patient and find a “good doctor.”

     1.  Search for your doctor on the Virginia Department of Health Professions.  This site provides a wealth of information.  First, it tells you whether your doctor is licensed to practice in Virginia.  Second, it discloses where your potential doctor went to medical school, post-medical school residency, and fellowships. If your American born doctor went to medical school in Aruba, Grenada, or Belize, I suggest they were unsuccessful in gaining admission to any medical school in the United States…not impressive.  As a general rule, do not select those doctors.  Third, this site discloses whether the physician you are considering has ever had an adverse action taken against his/her medical license by the Commonwealth of Virginia.  Adverse actions can be anything between failing to keep accurate patient records to situations where the doctor has an alcohol or drug addiction which negatively impacted patient care.  Finally, this site may tell you if the doctor you are considering has ever been successfully sued for medical malpractice.  However, this section of the site contains information “self- reported” by the physician so it is not always accurate…more on lawsuits against your potential doctor later.

     2.  Age and Experience.  The older we get the younger all of the healthcare professionals look.  This truism aside, age matters…on both ends of the spectrum of life and a medical career.  You don’t want a doctor who graduated medical school 5 years ago if you can help it because that doctor doesn’t have the necessary “on-the-job” experience to deal with complicated medical issues.  Likewise, you don’t want a 70 year old doctor fusing the vertebrae in your low back as it is unlikely that doctor has kept up with modern surgical techniques.  General medical experience is important but so is experience with the specific surgery or condition for which you are searching for a doctor.  If I need a doctor who is removing a brain tumor or a mass pressing on my spinal cord, I want a doctor who has performed that same procedure many, many, many times.  I also want to know the success rate my potential doctor has had with the surgery…not what the national averages are for the success of the surgery but my potential doctor’s success rate.  If he/she will not answer that question I suggest moving to another doctor.

     3.  Membership in professional organizations for their specialty.  In short, you want to select a doctor who keeps up on the literature and developments in his/her area of practice.  Here is a list of medical associations based in the United States.  Many of these associations have a web site listing their members by name and location of practice.  Also, many doctors will gladly provide you with a list of the professional associations for which they are members.

     4.  Lawsuits.  I promised (above) to provide more information on previous medical malpractice lawsuits against doctors you may be considering to be your doctor.  Just because a doctor has been sued (successfully or unsuccessfully) does not necessarily mean they are incompetent or bad doctors.  There are certain “high risk” medical specialties which simply leads to lawsuits. The high risk specialties include neurosurgery, general surgery, orthopedic surgery, obstetrics and gynecology, among others.  With my concession that a previous lawsuit against the doctor you are considering should not rule out the doctor, there are easy ways to check on whether the doctor has been sued and, if so, how many times.  Almost all of the Circuit Courts in Virginia are online and can be searched by the public to see if the doctor you are considering has been sued.  Here are the easy and fast steps to follow:         

           a.)    Go to the Virginia Judicial System web site

          b.)    Click on Case Status and Information

          c.)    Under Circuit Court, click on case information

         d.)    Hit the drop down key and pick which jurisdiction (court) you would like to search & hit begin.  You want the city or        town where the doctor’s office is located or the location of the hospital at which the doctor has privileges.

         e.)    You will be at the main menu.  Check Civil and type in the doctor’s name (last name, first name) and hit search by name

          f.)    You will just need to scroll through the names (names are in alphabetical order).

My TakeDo your research and find a good competent doctor…your life just might depend on it.

Leapfrog Report Cards for Local Hospitals

November 3, 2017

On Wednesday I shared a summary of Leapfrog’s report cards on several hospitals in the Roanoke and New River Valleys.  Here are the report cards published by the Leapfrog Group for two additional hospitals in our area of Virginia:

1.  Memorial Hospital of Martinsville received a “C.” Infection problems included higher than average instances of MRSA and C. diff infections.  Surgical problems included collapsed lungs.  Poor communication about medicines to be given to patients and discharge orders were also below average.

2.  LewisGale Hospital-Pulaski also received a “C.”  The higher than average infection problems included urinary tract and C. diff infections.  Surgical problems included collapsed lungs.  Poor patient – doctor communications, patient falls, and a below average number of specially trained doctors stand out as problems.

3.  Danville Regional Medical Center received a “C.” A higher than average rate of MRSA infections and below average surgical scores for death from serious but treatable complications, collapsed lungs, serious breathing problems, dangerous blood clots, and accidental cuts and tears accounted for this hospital’s grade.

Read the details of each hospital’s report here.

My Take:  Folks who live in the cities of Martinsville, Bassett, Collinsville, Chatham, Gretna, and Danville, or the surrounding counties of Henry and Pittsylvania are not getting the medical care they deserve.  Who wants “average” medical care?  Not me.