High court denies writ in Fredericksburg Medical Malpractice Case


Sunday, October 1, 2006

The Supreme Court of Virginia will not review a Fredericksburg case that twice resulted in jury verdicts larger than the state's cap on medical malpractice awards.

Malcolm P. McConnell and Jason W. Konvicka, the attorneys for Craig Allen, contended that a physician was negligent in failing to diagnose an inflammation in Allen's spinal column.

In April 2003, a jury awarded $6.5 million to Allen, a lawyer for the National Science Foundation when he developed transverse myelitis shortly after the physician, Donna J. Gamache, prescribed the anti-anxiety drug BuSpar for him.

Allen reported numbness and tingling in his hands and feet, but Gamache merely changed the dosage on the medication instead of examining Allen for a neurological ailment.

Treatment with high doses of steroids stopped further deterioration, but Allen, 36, is in constant pain and has lost much of his fine motor control.

The Supreme Court reversed the first award after concluding that the trial judge improperly excluded evidence of factors that could have contributed to the emotional distress from his illness that included a suicide attempt. Gamache v. Allen, (VLW 004-6-114).

In the retrial, Allen's attorneys presented no evidence about the suicide attempt or any emotional harm.

The second jury returned a verdict of $1.8 million last October, which was reduced to $1.55 million, the cap at the time on medical malpractice recovery.

Earlier this year, the Supreme Court rejected a petition for appeal and last month denied a petition for rehearing.

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