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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.

The “costs” of a health care crisis in Virginia = legal damages

September 17, 2019

Just yesterday I was on a conference call with a client about what the damages were in her case.

Damages is such an odd word. One may think of the “damage” caused by a break in, or natural disaster as a way to navigate the term’s depth, but in a law suit, it has a very specific meaning.

Damages, is what the law says you can recover in a civil lawsuit. That item of harm for which you can seek some level of financial compensation. An articulable and calculable loss – not a speculative one.

In medical malpractice cases where the patient survives, and is filing the case themselves, damages can be calculated by a number of factors, including:

  • Lost Wages (did you lose your job as a result of the surgical error? Miss months of work? Were you unable to perform your job and got a pay cut?)
  • Medical Bills (did the delay in diagnosis lead to additional surgeries or hospital bills? Did the mistake in surgery #1 lead to surgeries #2 and #3?)
  • Pain and suffering

I am hesitant to even define the later category of damages (pain and suffering) because it is so difficult to define adequately.

In one patient, a broken ankle may be life and career changing - which may lead to mental health treatment, depression, end of a marriage - truly, an awful experience that causes years of physical and emotional pain. While another patient may suffer a hardship, because of their internal strength and resolve - move past it, and have no real ongoing pain associated with the negligent care. 

It isn’t better to have suffered more. In fact, it is always easier to explain to a jury or judge that plaintiff Smith’s life was forever changed. However, their personal resolve to move past the bad and embrace the good, to let it go and not live daily in the pain or suffering shows what strong people with strong family support can do.

More pain, isn’t always better in a malpractice case.

We don’t always innately want to award or reward the suffering of others.

But to quantify another’s suffering, to put a price tag on it, is often difficult. For example, what do you think is the most painful experience suffered by a victim of surgical malpractice?

  • Undergoing 5 additional repair surgeries to fix a surgical mistake
  • Losing your job because of a surgical mistake
  • Not being able to pick up your young child because of a surgical mistake?
  • Losing your sense of self due to a surgical mistake?

It is hard to judge or quantify the above loss, and yet, in a recent case, the client’s most palpable loss was not being able to pick up and carry his child, while the law and defense lawyers saw the loss of wages as the most painful experience and the highest area of “damage.”

So while the cost of a medical malpractice incident on your life and your family may be great, and hard to measure, the law allows you to recover very defined areas of damages.

What Virginia does not allow, is any recovery of your loved ones who helped you through this difficult time. If your Mom quits her job to care for you, her lost wages are not recoverable. Only yours. In other words, not all the items of damages can be recovered in a lawsuit.

Nor does the law allow you to recover for speculative damage. For example, it would be hard to prove “had I not missed that work, I would have gotten that raise and promotion therefore my damages include that loss.” Sure, if your boss is willing to state underoath the only reason you didn’t get that raise was because of your new injury, you might be able to claim that as damages, but without that direct evidence, such claim is speculative and not likely admissible.

In sum – damages vary from case to case, and wildly vary from person to person.

One of the first things we do as we investigate a case, is to determine the scope of financial damages. Why? Because not every case is financially viable for clients.

For additional information on when costs of litigation outweigh damages, go here.

Until then – please let us know if we can help you investigate your care, and potential damages.

Lauren Ellerman

Virginia – #1 in Business (code for #50 for employees?)

August 5, 2019

I have heard it my whole life – “Virginia is open for Business!

As the daughter of a business owner, as a child I was proud of the moniker.

As an attorney who now (a) owns a business and (b) primarily represents employees in business disputes, I have a new take on the open for business tag line, and #1 in Business Title by CNBC.

In sum, when businesses win, employees often lose.

One reason Virginia took the top spot this year, according to Virginia Business Magazine, is the “business- friendly regulatory environment.” Well, what does that really mean?

In sum, and in practice, it means this:

  • Right to work state (can’t be forced to join a union)
  • Very few unions in public sector
  • Very little codified law on how companies must treat employees
  • Courts that will enforce a non-compete agreement (even if it means you must move your family or change jobs)
  • No protected classes outside of federal law – so you can be fired in Virginia, for being gay, or trans, or…
  • Medical Malpractice caps that allow hospitals and doctors to keep insurance costs down
  • Major energy companies finding little state regulation to prevent pipeline construction, takings, etc.
  • Few if any laws that control hiring, firing and employee rights

Business Friendliness (175 points)

The CNBC poll describes business friendliness (for which Virginia ranks 3/50) as:

We evaluate the legal and regulatory climates of each state, as well as overall economic freedom for businesses and individuals.

Wow. For once I am slightly ashamed to be a winner. Or, at least I wish we were paying attention to a different game, one where employees and employers have rights.

What can a Virginia Medical Malpractice case / lawyer actually do?

July 31, 2019

At least three times this week, I have described what I do as analogous to a hammer. If your problem looks like a nail, my skills and experience can be helpful. But not every healthcare crisis, emergency, or negligent care situation can be helped by a lawsuit. Not every harmful interaction with a health care provider requires a hammer in response.

So when our office decides whether your need and our skills align, we like to start by asking clients the following:

Why did you call a lawyer? What are you hoping we can do for you?

The answers are as varied and unique as the people providing them, but often we hear:

– I want answers

– I don’t want this to happen to someone else

– I want accountability

– I want my bills paid for

– I want an explanation as to what happened

– I want this doctor / nursing home / to change how they practice

And what we often share, is that a lawsuit is quite limited in what it can actually do.

Lawsuits can’t provide every solution

What a successful Lawsuit will do What a lawsuit
won’t do
What
sometimes
happens
Make the provider
explain what
happened
Take Provider’s
License away
Doctor feels
remorse and
regret
Require the
provider to think
about your
care, and case for a
year or more
Prevent provider
from practicing in
the area
Provider asks
Doctor to leave
after a number of claims
Cause the
provider to
think again when
they see similar
condition in
another patient
Prevent the provider from being named
“Top Doc” by local
magazine
Provider refuses to promote
doctor
Make provider’s
insurance costs go up
Prevent the provider from performing
same procedure on
future patients
Provider asks
doctor to stop
performing Z
procedure
Require insurance company to pay you money for
your injuries
Require the doctor to tell future patients about your injury, or the lawsuit New policies are created to help prevent repeat negligence 

Make the doctor apologize Doctor gets better

Ensure local press covers the lawsuit or injuries 

If your goal is therefore to get the Doctor’s license taken away, or make sure he or she is fired – a lawsuit can never achieve those goals.

If your goal however, is answers, and accountability – a lawsuit may achieve those goals.

Sadly, we are also limited in what a lawsuit can do for your financially.

Virginia law limits what you can recover

Virginia law caps what a victim or her family can ask for and get in a medical malpractice claim. Even if the victim has $20,000,000 in actual lost wages, bills and medical needs – the system only allows victims to get between $2 – $3million depending on when the bad care happened.

So a lawsuit cannot FULLY compensate many victims of medical malpractice.

Lastly, a lawsuit cannot and will not, take your pain, grief or worry away.

Lawsuit can’t take your pain away

One universal truth about life, is that grief and pain can and often change who we are. A health care crisis can and will often change a person emotionally as well as physically.

Losing a loved one due to death, or because a trauma has transformed who they are is painful, awful and sometimes unbearable life event.

A lawsuit cannot begin to undo this kind of damage and we often recommend our clients (victims of medical negligence in Virginia) seek counseling from a pastor or licensed therapist, and speak to their doctors about the pain – in addition to filing the lawsuit.

In sum – if you believe you have been provide substandard care in Virginia, and don’t know whether you have a case – call us.

If you don’t have a case we will do our best to point you to the additional resources that can help you achieve your goals.

And if you do have a case, we will do everything we can to help you through this often long and difficult journey.

Lauren Ellerman

Why infection cases are almost never cases under Virginia law

July 24, 2019

If I asked my microbiologist friend to name some of the bacteria that exist on a normal human – her mind would explode.

She couldn’t possibly name all the bacteria that are known to inhabit our largest organs – and yet, what we know (thanks to the smart people at the CDC, and NIH) is that your skin, and mine, is literally crawling with thousands of bacteria.

And that is ok – for the most part.

When it isn’t ok, is when those bacteria move inside and can cause infection that we as humans begin to worry about them.

We often get calls with the following fact scenario:

  • I had a surgery on my [insert back, knee, hip, aortic artery, whatever] and it went fine but while in the hospital, I got an infection and bad stuff happened
  • I had a surgery and it went find but months and months later I got really sick because now there is infection at my surgical site [insert stent, graft, rod, replacement]

And I hope I do a good job of explaining why we as mere lawyers, can almost NEVER prove that the patient got the infection from negligence, or bad care, or bad sterilization or unsanitary conditions. That we as humans are covered by bacteria and sometimes they just find their way inside – not withstanding appropriate infection control.

For example – could you trace how a grain of sand made it to shore? Maybe – but how could a mere human really do that? Not easily. Chasing bacteria is almost as hard.

So while it does make it hard to fight infection after a surgery, it doesn’t mean someone made a mistake. And even if they did, I can’t prove the mistake caused the infection and not just life – bacteria – human bodies.

The one kind of infection case we can handle, is a failure to diagnose infection despite significant signs and symptoms of infection. This kind of case occurs with some frequency. Patient may have some combination of the following:

  • Fever
  • Elevated Heart or elevated respirations
  • Elevated White Blood Cell Count
  • Pain
  • Skin, discolored or warm or painful to touch
  • Confusion
  • Naseau / Vomiting
  • Swelling

And just as we are all different creatures, infections can manifest themselves in different ways. My sweet mama just battled listeria (look it up – yuck!) and she had all of the above, while a client of mine had no fever for days despite all of the other symptoms.

In sum, we will likely not be able to prove negligence lead to your infection. BUT, in some circumstances, we can prove that appropriate treatment and diagnosis would have gotten to it quicker.

Questions? Call us.

We are always here to answer questions or help.

Yours,

Lauren Ellerman

“Choosing” a surgeon

July 22, 2019

We are often in conversation with a potential client (which always means some kind of medical crisis has already occurred) and we ask:

HOW DID YOU CHOSE YOUR SURGEON?

or

WHO PERFORMED YOUR SURGERY?

And, what we have learned, is that most patients don’t recall the name of their surgeon and feel they had little to no choice in selecting him or her for the job.

I understand this. Just this week a loved one was told he might need surgery and his previous surgeon said “I will be out of the office that day so my partner, Dr. X will perform the surgery.” He didn’t say “I recommend X” or “X has the most experience” or even “If it were me I would want X to do it.” He simply said “X will do it,” as if my loved one had no say in the matter.

That is the part that disappoints me. Sure, when you go to McDonalds you don’t usually get to say “I want Ellen to make my burger please” but when you have a significant thing like a surgery done, that could cost you your life, livelihood or at the very least, significant money and time, I want patients to know they do have a right to choose.

So how can a patient choose?

Here is a quick list of questions to ask and places to look to get more information on your Virginia surgeon, so you feel you can make a more educated decision moving forward:

  1. DO YOUR RESEARCH. Sure, it has been said that Doctors don’t like it when patients Google their condition, but the way I see it, sometimes I wish Doctors themselves would go on Google and get some additional information. Do some research about the procedure you may require, and the surgeon! Want to see if they have been sued before, check your County or City Circuit court records (Chose location, then Civil, then last name): http://ewsocis1.courts.state.va.us/CJISWeb/circuit.jsp
  2. CONTINUE THE RESEARCH. While the Board of Medicine in Virginia rarely takes a doctor’s license, sometimes they do discipline them for bad behavior or abhorent patient care, and this won’t often show up in a simple Google search – you must go straight to the source where you search by last name. http://www.vahealthprovider.com/search.asp
  3. ASK AROUND. Nothing come up online? Ask family, friends, call a local attorney or Pastor – and ask the blunt question – “I have been told I need to have a procedure, and this is the surgeon who has been assigned – what do you know?”
  4. ASK THE SURGEON DIRECT QUESTIONS. Please, please please – ask the surgeon AND anesthesia team the following questions: (a) How many of these do you do in a year? (b) When was the last one of these you handled yourself? (c) Where – was it at this hospital? (d) Are you the most experienced surgeon in this hospital on this procedure? (e) Who else will be in the OR with you? (f) If I don’t want students or residents as part of the procedure, can I say no? (g) Aside from death – what are the worst complications you have ever seen? (h) How many other surgeries will you have that day? (i) How long do you expect the surgery to take? (j) Is there someone else in this region who you think has more experience than you?
  5. ASK FOR A REFERRAL. If you don’t feel comfortable with the above answers, and your surgical need is not emergent – ask for a referral to a more regional hospital system. I would have far fewer clients and cases if families asked direct questions, and doctors were honest about their lack of experience in some areas. So sure, it might make a professional uncomfortable for a minute when you question their experience, but I promise, no real professional will be bothered.

So, I understand how it feels you didn’t really have a choice in your surgeon or doctor, or provider. But don’t forget – your body needs you as an advocate. Ask the hard questions, do some basic research and you might find a few red flags that point you in a new direction.

I don’t want you to become a patient. If you do, it means someone failed to provide adequate care, and their negligence caused permanent injury that would not have existed but for their really bad care.

Better to ask questions now, than regret it later.

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.