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Author: Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at lellerman@frithlawfirm.com.

SPEAK UP (as a patient)

May 23, 2019

I am currently with a loved one in an out of state Hospital and on every wall is a sign that says SPEAK UP.

The poster then discusses patient’s need to speak up and how that can prevent injury and mistakes.

I agree. While it doesn’t take away the duty of the healthcare provider to:

  • properly staff their facilities
  • properly train their staff
  • make sure equipment is in working order
  • make sure staff communicates directly with patients
  • properly assess patients
  • properly treat patients

Patients should speak up. Patients should also, be organized and if possible, have an advocate with them as much as possible who can take notes, ask good questions and stay organized.

Why? Because you know your health better than anyone.

You know your body better than anyone.

You know when something is wrong before anyone else.

So do SPEAK UP — and maybe we can stop negligence before it hurts someone.

Medical Malpractice: Failure to diagnose / treat Cancer

May 17, 2019

Cancer deserves a Capital C. It’s scary – life changing and in millions of Americans, life ending.

Do you know someone who was diagnosed with cancer and beat it? I do. My Mom had Melanoma AND lung cancer and because of good care, both were diagnosed early, treated and she has reached the ten year survival mark on both. It’s a miracle really.

But many of our clients can’t share that kind of success story. Many of our clients have the rather nightmarish scenario where someone missed the cancer in it’s early and treatable stages, only to be told upon delayed diagnosis, little can be done.

Our office has seen so many failure to diagnose cancer cases, we can barely count them, but what seems to be a thread of truth that runs among all of them is FAILURE TO COMMUNICATE.

For example

  • images (CT, X-ray) reveal a possible tumor but doctor doesn’t order follow up tests so tumor goes untreated
  • radiologist recommends specific follow up testing because of abnormal finding, but no one else reads the report, or shares the concern with patient – or provides any follow up care so tumors go untreated
  • radiologist recommends specific follow up but doesn’t call Emergency Room doctor who has already discharged the patient – so no follow up is provided
  • radiologist misses the abnormal findings and doctors send patient home
  • radiologist recommends follow up but emergency room doctor thinks it is job of primary care doctor, and primary care doctor thinks if it was bad the emergency room would have called
  • doctor reads radiology findings but insists the mass that was seen is not cancer, but something else (cyst, pneumonia)
  • doctor makes note in chart to request images and review – and fails to do them

NOW – what all of these scenerios have in common is LACK OF COMMUNICATION WITH PATIENT.

What we don’t see is someone saying to the patient – “Hey, Radiologist sees something scary.” Because if these five words had been uttered, we can all agree there would be no delay in diagnosis. The patient would move mountains to get further tests, studies and answers STAT. Why? Because it doesn’t take a Doctorate in Medicine to know that the earlier to diagnose cancer, the higher your chance of survival AND the better chance of successful treatment.

SO WHY don’t doctors utter these scary words to patients? I have asked some doctors that over the years, and received a number of answers (all of which I am paraphrasing):

  • “I didn’t know the radiologist saw that. He didn’t call me and I didn’t look at the report. I didn’t know it was my job to do that.”
  • “I didn’t want to scare the patient.”
  • “I didn’t think it was cancer.”
  • “I though conservative approach was better – wait and see.”
  • “I compared those images to old images and didn’t see much change so I assumed it wasn’t cancer.”

Lots of reasons provided, not one of which I have felt was totally sufficient.

So why even write about this issue? Doctors don’t read attorney blogs – so why even bring it up?

Well – to empower patients. To put the communications and control into the hands of the people who need care.

So while I don’t think all failure to diagnose cancer cases are avoidable – I do know that if clients were more proactive, their doctors would be as well.

And so, here is some practical advice when it comes to healthcare in America:

  1. Always get a second opinion. Yes, even when insurance won’t pay for it.
  2. When you get an X-ray or MRI or CT done, ask for a copy of the images on DISC AND ask for a copy of the report. Don’t wait. Most hospitals can copy these records and images on disc for you within 10 minutes while you wait.
  3. When you get reports, READ THEM. Anything suspicious? Recommend follow up?
  4. Take those reports and images with you to your next PCP or specialist appointment, ask them to review with you and discuss plan of care.
  5. ASK QUESTIONS.
  6. GOOGLE IT. I know Doctors hate it when patients come in and say “I looked it up online and am concerned about DO-RE-ME” but guess what, I’m not concerned about a doctor’s ego being bruised. I am concerned about your health. Clients tell me all the time they looked up similar cases online and they found a jury did something — and is their case the same? I often explain how it’s different, am glad to have an engaged client – and we move on.

Questions? Call me or email me – lellerman@frithlawfirm.com

Malpractice isn’t the same as as a mere mistake (under Virginia law)

May 10, 2019

One of the aspects of my job I enjoy the most, is speaking to the folks who call our office. Sometimes, they call because a doctor, nurse, nurse practitioner has made a mistake in Virginia.

Often, when they call, they say “I’ve never called a lawyer before but someone told me I should call….”

Examples of medical mistakes may be as follows:

  • Failing to diagnose an illness
  • Failure to review medical records or radiology reports
  • Surgical mistakes
  • Failure to explain a possible risk before a procedure

Mistakes can have consequences – but mistakes are not the same as malpractice. Malpractice is a violation of the standard of care – which means, a majority of similar doctors wouldn’t have done X.

What this means is anyone can make a mistake, but malpractice occurs when something happens that is avoidable, preventable – and a majority of other doctors would have done it right.

AND under the law, you must prove that the negligent act cause a significant injury.

In failure to diagnose cases, you only have a lawsuit when the failure to diagnose either prevented you from gaining access to a necessary treatment, or caused additional injury.

  • Example – failure to diagnose colon cancer, tumor abscesses into wall of colon – spreads – cancer goes from stage II to IV
  • Example – failure to prescribe blood thinner, DVT occurs
  • Example – injury to neighboring organs during abdominal surgery and failing to recognize it
  • Example – surgical injury

So while mistakes do happen, malpractice can be prevented.

I hope you will call us so we can help you understand what happened in your care.

Lauren Ellerman

When the paperwork doesn’t work

May 7, 2019

I have been writing pro bono (latin and lawyer for free) Wills for local police officers lately. Good men and women who because of their line of work, realize, perhaps younger than most, that they are not immortal. That eventually they will die. That in facing their own mortality, they would like to make arrangements, such as:

  • Where does their stuff go when they die
  • Who raises their children should they be killed young
  • Who makes medical decisions for them if they become incapacitated
  • Who makes financial decisions for them if they become incapacitated

We discuss in these meetings, that perhaps there is one special, strong and capable person who can do all of the hard stuff – manage your kids, your money and make good medical decisions for you. But likely, there isn’t just one person. Maybe one person should make the medical decisions, and another raise your kids.

We call the person who makes decisions their Medical POA – or technically, under Virginia law, their Attorney in Fact. In my draft documents I write that a medical POA can sign them into a nursing home BUT CANNOT WAIVE THEIR RIGHT to a jury trial.

Now – how did we get to jury trials? Is it because I am a trial lawyer and I like jury trials? Sort of.

It is because 99% (this is a grossly inaccurate guess based on my 15 years of practicing law) of assisted living facilities and nursing homes place a clause in their contracts that say (and I am exaggerating this language to make a clear point) – “YOU AGREE THAT NO MATTER WHAT WE DO TO YOU OR YOUR LOVED ONE, YOU WILL NOT SUE US – YOU GIVE UP THAT RIGHT. YOU AGREE TO THIS SUPER SECRET PROCESS CALLED ARBITRATION WHERE NO ONE FINDS OUT WHAT WE DID WRONG, YOU GET PAID LESS, AND NO FUTURE FAMILIES CAN INVESTIGATE OUR MISTAKES.”

This above exaggerated (but not wholly inaccurate when it comes to effect) language is called an Arbitration Agreement, and because Congress (state and federal) is typically a bunch of wimps, they are perfectly legal in all consumer contexts – even when making the stressful and emotional decision to placed a loved one in a nursing home.

And what does this have to do with paperwork and police officers?

I’ll tell you – I don’t want the police officers to give their loved one, or their Medical POA the legal right to agree to these stinky things. I want them to retain the right to go to Court. Why?

  • Because I believe that public accountability is often the most effective type of accountability
  • Because many families who call me don’t care about the money a lawsuit brings, they just want to see things changed – and change doesn’t happen in a super secret process without a local judge or jury
  • Because we shouldn’t have to pay a fake or retired judge $500 an hour to decide whether a loved one deserved better care. That is what juries are for.

Then – I read articles like this published by the Long Term Care industry and I think, yup – I don’t like Arbitration because the big companies do.

So – there. That’s alot perhaps too much on how I purposefully make sure the paperwork doesn’t line up – AND – I am happy about it.

Failure to diagnose cancer in Virginia

April 4, 2019

The C word is an awful thing to hear. Cancer. With over 1.3 Million Americans diagnosed annually, we receive frequent calls from patients who wonder if earlier diagnosis would have changed their cancer outcome or treatment options.

Allow me to state a different way: Cancer is generally easier to treat, the sooner it is diagnosed. The longer it goes untreated, the worse off the patient will be – and sometimes, even when you are seeking medical care, the doctors still miss it.

In 2019, with state of the art technology available in even the most remote healthcare facilities, how does this happen? Why?


Cancer is the leading cause of death in developed and developing countries. Cancer mortality is expected to rise to an estimated 13.1 million deaths annually by 2030.1 However, certain types of cancer have a high chance of cure if they are detected at an early stage and adequately treated.2
The delays in cancer diagnosis may occur throughout the diagnostic pathway: patient, primary care, and secondary care.

Oman Medical Journal, Dr. Al-Azari,
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4996960/

Patient Fault

Sometimes, it can be the patient’s fault the cancer diagnosis is delayed. Sometimes patients either don’t know the signs and symptoms, ignore them, or delay treatment for personal or financial reasons.

Medical Provider’s Fault

But what happens when the delay in diagnosis is not related to the patient, but rather a health care provider misses the cancer and it is allowed to grow and spread. Sadly this is not a rare occurrence. We have seen this kind of negligence occur many times, and in the following scenarios:

  • Doctor orders tests but doesn’t read or communicate results to patient
  • Doctor fails to order tests that would reveal cancer
  • Doctor fails to refer patient to a sub-specialist who would normally order follow up tests
  • Doctor believes signs and symptoms to be another disease other than cancer

While it is never a good thing to be a plaintiff in a medical malpractice lawsuit (being one means you have permanent injury as a result of a significant medical mistake) in order to be a plaintiff in a failure to diagnose cancer case, the following facts must be supported by experts in the field:

  • Doctor should have diagnosed the cancer earlier
  • Had the doctor diagnosed cancer earlier, treatment options and outcome would be vastly different

It’s not enough to simply miss the cancer for a few months.

The cancer has to transform, grow and become more invasive during this time to make it matter – legally speaking.

And sometimes, there is a huge miss. Doctor doesn’t read PAP results, or look at CT that says “likely neoplasm”, or follow up when radiologist sees something suspicious. Sometimes mistakes are made, and lives are changed forever.

Why you have no real “right to work” in Virginia

April 4, 2019

Yet again, a smart professional person hired me, and asked the following question:

I know I signed an employment contract that says I can’t serve my clients for three years after termination, but the law says I have a right to work doesn’t it? So how can my employer enforce that agreement – it’s against the law, right?

And once again, I have had to say something like the following:

No. Sadly, you have no such right to work. This is Virginia. “Virginia is Open For Business” is code for, your company has the right to make you an indentured servant and you have very limited rights that are controlled primarily by this awful contract you signed.

Hopefully, I wasn’t that negative and fatalistic in my response, but I am confident it felt like that to the client. I told them that the phrase right to work was a terribly labeled law relating only to Unions and whether you can be forced to join one, and did not in any way mean their non-solicitation or non-compete agreement was invalid by law.

Though I have said it before (now too often for anyone to care) – the law is created by politicians, and politicians typically have a group they are trying to prove. If your state is traditionally conservative like mine, the laws are written to protect business owners, not the employees of the businesses. And in Virginia, we actually have no law written on non-compete agreements. Nothing to protect employees from egregious contracts that would prevent them from starting a business, or providing for their family.

We have 200+ years of judicial decisions (what we call the common law) that says non-compete agreements are enforceable if narrowly tailored to protect a legitimate business interest. And that’s about all we have to go by.

In sum, no Code that limits non – competes, and we have a “case by case” basis approach which means the validity of a contract is really up to the judge hearing your specific case.

That didn’t seem like a helpful summary, did it. Let me start over.

In sum, it sucks if you are an employee. And doesn’t if you are a business owner. You have no right to work and if you agree in writing not to work, you likely have to honor that agreement.

Not the news I wanted to give today. Certainly not the news most of my clients want to hear but alas, it is the truth. You have no real right to work in Virginia, which means we as Virginians have a few choices:

  • Change the laws (and every year there is a Bill before the GA that would get rid of non-competes to some extent and every year that Bill gets squashed by the Chamber of Commerce and other pro-business lobbyists)
  • Change the lawmakers
  • Don’t ever work for a company that has you sign a non-compete
  • Start your own company and never ask employees to sign non-competes
  • complain about the law online hoping someone might care

You have no right to work in Virginia. Please know this before you sign some terrible agreement assuming it isn’t binding.

Why this photo? Because it’s of a female cubscout (my kid) and I at a recent cubscout meeting. The point? Things do change. They take time, but they do change. So here’s to hoping the laws will change one day as well.

Dan Frith is named to 2019 Virginia Law Foundation

January 20, 2019

Founding partner of Frith Ellerman & Davis will be inducted into the Virginia Law Foundation next week, at the Virginia Bar Association’s Annual Meeting. 

We are so proud of Dan’s induction as the Law Foundation only selects attorneys who are dedicated to their practice, and communities. 

Join us in congratulating Dan on this well deserved honor! 

How to be a better patient – and get better medical care in Virginia

December 30, 2018

This week I was enjoying some post holiday magazine reading time, when I saw a blurb in Better Homes and Gardens, that said: 

On average, doctors will interrupt 11 seconds after you start explaining your symptoms. 

The magazine then advises, to “write down the issues you want to discuss in order of importance and give it to the doc at the start of the visit.”

Well I think that is excellent advice. But I will go one step further. If you feel your symptoms were not fully addresses, follow up. Use the MyChart system provided by your doctor or hospital to communicate your concerns in writing, or ask for the list to be included as part of your chart – or send a fax to the practice with an update. 

In today’s world of electronic medical records, often clicks are made in your chart that DO NOT accurately reflect your health, questions etc. 

Good advice BHG – being an advocate for yourself almost always leads to better care. 

Why your worst nightmare is a “good case” under Virginia law, and why that is so wrong

December 30, 2018

Sadly, in our office, when someone says – “That’s a good case,” some awful unspeakable tragedy has occurred to someone in Western Virginia. 

The list of tragedies is unfortunately very long: 

  • someone lost a loved one
  • a child has died or suffered a life changing injury
  • a professional lost his or her job because they couldn’t work anymore
  • someone has spent months in a hospital and the bills are stacking up
  • a parent has died because of neglect or abuse at a long term care facility
  • a pharmacy has mixed up medications
  • a physician didn’t read the full medication list and prescribed a lethal combination of pills 
  • a surgeon didn’t appreciate the nuance of this procedure and caused significant injury
  • a cancer was missed and went untreated

If someone calls our office, and there might be bad or negligent medical care from a nurse, doctor, nursing home, hospital system, a clear and preventable mistake – but that person has recovered fully and or the injury was short lived, we often say – “Yes, you may have a case but it is not going to benefit you financially so we don’t recommend you file suit.”

So why is a life changing injury a good case, and a short term one – not worth filing?

Sadly, the law and the money make it so. 

In order to file a malpractice or negligence lawsuit in Virginia, you must have experts who have signed affidavits before the lawsuit is formally served. The experts must review medical records, and they almost always charge a pretty penny for their time (and who can blame them – they have skills, and limited time just like the rest of us) so filing a lawsuit can be very expensive. 

Here is an idea of what it might cost to file a malpractice lawsuit in Virginia:

 

Request Records$200 for records on paper and discs
Expert review for negligence$2,000 – $5,000
Expert review for causation $2,000 – $5,000
Expert to discuss job loss and decline in function$3,000 – $10,000
Court reporter costs throughout case$5,000 – $10,000
Expert costs as case continues$20,000 – $40,000
Trial prep, exhibits Etc. $5,000
Filing the lawsuit$250

A single case could easily cost $20,000 – $50,000 in costs – and that does NOT include attorneys fees which in Virginia, is almost always 40% for Medical Malpractice and 33% for personal injury. 

So if you missed a week of work, had $5,000 in unpaid medical bills – would it be worth all of the above costs and expenses to file suit?

In the words of my daughter’s favorite book character – Pete the Cat – “Goodness No.”

So one must suffer a financial harm and injury so great, that it justifies significant outlay of costs in litigation. 

So a “good case” to the lawyers, one worth 1-2 years of time and effort, is usually one with high lost wages, high medical bills, or significant suffering. 

Doesn’t that sound awful?

Of course it does.

And it sounds awful to say it and think it daily at work. Often I will tell clients – “be grateful you don’t have a lawsuit. Recovering from your injury, being a whole person again, not losing your job is all much better than having a lawsuit.”

Should there be a less formal way for victims of neglect or malpractice to bring claims that doesn’t cost so much? Maybe.

Does such a way exist right now under Virginia law? Not really. 

And so we exist in a state where the most significantly injured have life altering tragedy, and maybe some access to “justice” that costs them thousands and thousands of dollars in costs and attorneys fees, and will take years to get.

Doesn’t seem that just to me. Seems rather bleak. 

Frith Ellerman & Davis attorneys – asked to lead the way

December 30, 2018

Early in 2019, our three named partners will all be teaching other lawyers how to handle injury cases. 

Lauren Davis and myself (Lauren Ellerman) will be teaching at the Virginia Trial Lawyers Retreat on Long Term Care cases, and our partner Dan Frith will be teaching at the Virginia Trial Lawyers Premises Liability Retreat. 

Why does this matter?

When you go to a doctor, you want to find someone who specializes in your complaint. 

When you call the plumber – you want someone who knows your type of problem. 

When you suffer a serious injury caused by someone else’s negligence – you want an attorney who has handled that kind of case, and is so experienced in that area of law, he or she is teaching other lawyers about it.