3.5 Million Medical Malpractice Verdict Upheld By Virginia Supreme Court


Thursday, November 15, 2007

The Virginia Supreme Court upheld a $3.5 Million verdict the medical malpractice team at Allen, Allen, Allen & Allen won in the Circuit Court of Fredericksburg in August, 2006. The plaintiff, a gastric bypass patient, suffered severe brain damage as a result of an infection she developed in the hospital after surgery. Her surgeon failed to recognize the signs and symptoms of the infection, which included changes in her heart rate, temperature and pain, and he discharged her without treating the infection. By the time plaintiff returned to the hospital later the same day, the infection had spread to the lungs causing plaintiff severe breathing problems. As a result of decreased oxygen to the brain, the plaintiff suffered permanent hypoxic brain injury.

Lead trial attorneys Malcolm McConnell and Jason Konvicka worked with nationally recognized gastric bypass surgeons to prove that the defendant surgeon had been negligent in his care and treatment of plaintiff. The patient's psychiatrist and her neuropsychologists from the medical centers at the University of Virginia and Virginia Commonwealth University described her profound brain injury. The Allen and Allen medical malpractice lawyers also presented to the jury a Life Care Planner who outlined the care and treatment plaintiff would require, continuously, in the years ahead. A vocational expert explained how the plaintiff's brain injury rendered her unemployable.

The defendants did not contest the severity of the patient's hypoxic brain injury. Nevertheless, despite the injuries and the testimony of plaintiff's qualified medical witnesses, the defendant physicians refused to make an offer of settlement or to negotiate at the court-ordered settlement conference. The case went to trial. Trial lasted five days, and the jury deliberated for several hours before awarding plaintiff $3.5 Million. The defendant then made a motion to set aside the verdict. The trial judge denied the motion. Because doctors in Virginia enjoy a special status under the law, the jury's verdict was reduced to the maximum amount recoverable in Virginia in a medical malpractice case, which was $1.65 Million. The case did not end with this jury award.

The defendants hired a new law firm to appeal the verdict. On June 6, 2007, Allen and Allen attorney Malcolm McConnell appeared in person before the Supreme Court of Virginia in Richmond and argued forcefully that the Court should uphold the verdict in plaintiff's favor. All seven justices agreed. On September 9, 2007, the Court upheld the jury verdict, and the Allen and Allen attorneys obtained the justice their client deserved.

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