Medical Malpractice

Because the results obtained in specific cases depend on a variety of factors unique to each case, past case results do not guarantee or predict a similar result in future cases undertaken by a lawyer or law firm.

Failure to Diagnose Stroke Leaves a Teenage Softball Player With Permanent Brain Injury

During a softball game, a teenage girl is struck in the neck with a foul tipped ball. She sits out the remainder of the game on the bench. She develops headache and nausea, and after the game her mother takes her to the emergency room. By this time, she also developed vertigo. She could not walk or stand normally. However, in the emergency room she is diagnosed with dehydration and sent home. That night she begins to vomit and cannot walk without holding onto furniture. She is taken back to the hospital and now diagnosed with stroke. This was an ischemic stroke and very treatable IF she had been administered the drug to break up the clot within 4 to 6 hours of the onset of stroke symptoms. By the time she returned to the hospital, the window for treatment had closed, as a result the teenager suffered permanent brain injury which limits her ability to walk and think clearly. In mediation, partner Gary Mims successfully established that her treatment violated the standard of care. A favorable, confidential settlement was reached on behalf of the client.

Failure to Test for and Diagnose Breast Cancer

A 25-year old woman, about to be married, found a lump in her breast and made an appointment with her physician. Concerned and frightened, she took her mother with her to the appointment. She met with the nurse practitioner who told her it was nothing to be concerned about. Several months later she returned to her physician’s office because the lump had grown. The nurse practitioner ordered a sonogram which was followed by a biopsy. The young woman was then diagnosed with metastatic, Stage IV breast cancer—which was incurable.

At trial, the defendant denied being told about the lump and testified that she performed a routine breast exam that was negative. Plaintiff’s experts established that the standard of care demanded that a patient presenting with a breast lump should immediately undergo a non-invasive and inexpensive sonogram—which, if it had been done in this case would likely have disclosed and treated the cancerous lesion before it metastasized.

The jury deliberated for three days and returned deadlocked: six jurors in favor of the plaintiff and one juror in favor of the defendant. Since, in Virginia, verdicts must be unanimous, the case was declared a mistrial and would have to be retried.. Given the backlog of trials due to COVID, a new trial could not be scheduled for many months, perhaps even after the patient’s life expectancy. Fortunately, we were able to reach a confidential settlement that provided immediate, timely compensation for the patient.

Patient Is Diagnosed With Dehydration; Suffers Massive, Debilitating Stroke

A 40-year-old executive was home alone while her husband was out of town on business. Suddenly she developed nausea and vertigo. She could not walk or stand normally. She rushed to the emergency room, where she was diagnosed with dehydration and discharged. When she awoke the next morning, she could only open her eyes—she had suffered a massive stroke. After months of hospitalization and rehabilitation, the patient was able to walk with a walker, can speak, but is no longer employable.

Gary Mims brought suit on behalf of the woman against the hospital and treating doctors. Our medical expert testified that had her ischemic stroke been diagnosed on her first visit to the emergency room, it could have been easily and successfully treated. We reached a favorable settlement that will support her lifetime of care. Under the terms of the agreement, the amount may not be disclosed.

Pregnant Woman Dies After Failure to Diagnose Stroke

A pregnant woman developed nausea and vertigo. She went to the emergency room and was diagnosed with dehydration and sent home. She suffered an ischemic stroke, and sadly, died due to the failure to timely treat her stroke. Remarkably, she was kept alive in a vegetative state for more than 2 months so that she could successfully deliver her baby.

Gary Mims brought suit on behalf of the woman’s family against the hospital and treating doctors. Our medical expert testified that the defendants failed to meet the standard of care, by failing to observe one of stroke’s most obvious symptoms – her inability to walk or stand normally — and thus failing to diagnose the stroke in a timely fashion. We achieved a favorable settlement for her baby and husband but under the terms of the agreement, the amount may not be disclosed.

10-Year-Old Military Dependent Prevails in Federal Tort Claims Act Case Over Botched Surgeries

A 10-year-old girl suffered injuries to her arm during a martial arts self-defense class and was admitted to the hospital. She was diagnosed with a fracture in the bony tip of the elbow and put in a splint. Surgery was performed the next day at Fort Belvoir Community Hospital, a military hospital. The operation was unsuccessful and girl was operated on again, this time at Walter Reed National Military Medical Center in Maryland. With the second surgery, the surgeon improperly immobilized the girl’s arm, which ultimately resulted in permanent injury to her elbow, arm, and hand.

When filing a suit against the U.S. government or its representatives, plaintiffs must follow special procedures under the Federal Tort Claims Act. The procedures are strict and detailed and include a six-month administrative review period for the government after a claim is filed. When the government denied our initial claim on behalf of the plaintiff, partner Steve Frei then filed a medical malpractice lawsuit in federal court. In mediation, Frei successfully established that the surgeon violated the standard of care and reached a favorable settlement for the plaintiff.

Justice Ultimately Prevailed in 5-year MedMal Legal Battle

Years of motions and appeals by a medical malpractice case defendant delayed compensation to a victim who’d suffered negligence after a fall and broken shoulder.

On behalf of the plaintiff, partner Gary Mims succeeded in defeating the defendant’s legal maneuvers when in July 2021 the Virginia Supreme Court ultimately ruled in the plaintiff’s favor who was paid $612,169.00.

In 2016, Mary Giblin fell, broke her shoulder, and went to Virginia Hospital Center, where she was x-rayed. The emergency physician group, Emergency Medical Associates (EMA), failed to properly read the x-ray or the radiology report and misdiagnosed a dislocated shoulder. Efforts to manipulate the shoulder were unsuccessful—later EMA realized the shoulder was fractured. The original fracture was not displaced and did not require surgery, but manipulation displaced the fracture necessitating surgical reduction.

Mims took on Mary’s case and sued EMA for negligence. EMA failed to answer the lawsuit and in December 2018, a default judgment was entered in her favor in the amount of $468,000, plus interest dating back to 2016.

When EMA learned of the default judgment it moved the Arlington County Circuit Court to set it aside and grant a trial. That motion was denied, and EMA filed a Petition for Appeal with the Virginia Supreme Court.

After losing its Motion to Set Aside, EMA filed a separate lawsuit asking the Arlington County Circuit Court to vacate the default judgment and set the case for trial. Again, EMA lost, and again it filed a Petition for Appeal with the Virginia Supreme Court.

With both appeals pending, EMA offered to settle the case for $50,000.00, which was rejected.

Finally, on July 13, 2021, the Virginia Supreme Court agreed with Mims that there had been no error by the Arlington County Circuit Court and denied both Petitions for Appeal.

With the accrual of interest, EMA has satisfied the judgment and paid $612,169.00.

“Justice, while moving slowly, ultimately prevailed here,” said Mims.

$1.69 Million when Routine Gastric Bypass Surgery Causes Life-threatening Injury

A middle-aged woman sought gastric bypass surgery to help her with weight loss. In this procedure, called Roux-n-Y, the stomach is stapled to make it smaller making it difficult for the patient to ingest large amounts. At the conclusion of the procedure, the surgeon asked the anesthesiologist to pump air into the stomach, through an orogastric tube, so that he could search for leaks. In this case, the anesthesiologist, unknowingly pumped air into a cuff on the orogastric tube (designed to keep the tube in place). She did not realize her error and when she withdrew the tube the cuff remained inflated causing a tear in the esophagus. The injured esophagus was not discovered until the next day and the patient was required to undergo several life-saving procedures to save her esophagus. Virginia’s cap in place at the time was $1,750,000 and the case settled for $1,690,000.

$1.34 Million for Brain Injury from Diagnostic Test

Patient went to a spinal operative treatment center in Reston, VA for a diagnostic discogram procedure of the cervical spine. The patient suffered a toxic brain injury following an injection into the spinal canal. The defendant denied injecting into the spinal canal but Frei, Mims and Perushek conducted an investigation and found X-rays showing the discogram needle had in fact enter the spinal canal and an MRI of the brain showed a coating of fluid surrounding the brain. A spinal tap proved negative for blood. The jury awarded $1.34 million to the victim.

Wrongful death: Child Dies from Negligent Home Health Care

For 10 years, a family lovingly cared for their child who was afflicted with a rare disorder that left him disabled and on a ventilator. Sadly, a home health nurse responsible for his care failed to notice that a life-sustaining endotracheal tube had dislodged, and the child died. Partner Gary Mims brought a wrongful death suit against the nurse’s employer, seeking damages for the parents’ significant loss of companionship. The employer failed to respond to the lawsuit, and the judge awarded a $1 million default judgment. Court proceedings ensued where the employer’s insurer fought the judgment, claiming that its registered agent hadn’t transmitted the lawsuit. Mims successfully presented evidence that the employer’s registered agent had been properly served and that the insurer had waived its defense because it had not timely notified the plaintiff of its reservation of rights. The parties agreed to a mediation, which resulted in a $600,000 settlement.

$1.25 Million Settlement after Hospital Medication Error Results in Boy’s Brain Injury

A young boy began experiencing seizures and was admitted to a hospital, suspected of having encephalitis. He was being treated in pediatric ICU for a number of days. When he boy was transferred to a step-down unit, a hospitalist changed his medication regimen. She increased the dosage of the boy’s anti-seizure medication and hours later he experienced cardiac arrest, leaving him alive but dependent on life support machines. We filed suit against the hospital. After discovery was completed and experts identified, the case settled for $1,250,000. A special needs trust was set up to administer the funds from the settlement for the boy in the future.

Gastric ByPass Surgery Results in Brain Damage

Patient suffered brain injury and multiple organ failure due to anemia, hypotension and hyper-profusion during and following a gastric bypass surgery at an area hospital. Frei, Mims and Perushek successfully established the Defendants’– the surgeon, the anesthesiologist, CNRAs, the nursing staff and the hospital — shared responsibility for failure to monitor and respond to his critically low blood pressure, oxygen carrying capacity of blood and blood volume. The Defendants failed to appreciate and timely intervene when the patient progressed to multiple organ failure. The patient suffered brain injury and organ failure due to insufficient oxygen carrying capacity of the blood, low blood volume and low blood pressure. This case was resolved with a favorable settlement for the patient.

Negligent Psychiatric Polypharmacy Injures 12 Patients

Twelve patients under the care and treatment of a psychiatrist in Arlington, Virginia were inappropriately prescribed a host of psychiatric drugs resulting in serious impairments and permanent damage to the patients’ cognitive abilities. Frei, Mims and Perushek spearheaded the litigation against the psychiatrist and the case resulted in a favorable settlement to each of the twelve patients.

$1.245 Million for Failure to Diagnose Prostate Cancer

A 50-year old man had his routine physical, including a prostate exam and blood tests. His PSA (prostate specific antigen, a marker for prostate cancer) was normal at 1.0ng/MI (0-4 is normal) and his prostate was normal. He changed doctors due to a change in his health insurance and continued regular physical exams for four years. During his next physical, his PSA was 44.9ng/MI — an increase of more than 400%. A biopsy confirmed prostate cancer which had metastasized and was deemed incurable. During the four years he was a patient of the second medical practice, he was never screened for prostate cancer. The defense argued that ‘evidence based medicine’ does not support preventive testing because there is insufficient evidence to conclude that early detection of prostate cancer saves lives. The plaintiff successfully argued that prostate cancer screening should occur annually; and, that had timely screening been done, his cancer would have been detected at a time it was curable. The jury awarded the victim $1.245 million. As a result, the medical practice’s managing physician said they would revamp record keeping and institute new client protocols.

Patient Undergoes Elective Knee Surgery and Awakens With Her Leg Amputated

Patient had knee discomfort when walking for extended periods of time. The pain was the result of degenerative arthritis the cure, knee replacement. The procedure should be highly successful but the result for this patient was tragic. In preparing the leg for the prosthetic knee, the orthopedic surgeon drilled through the back of the femur and cut the artery. The complication was not recognized until after the surgery was completed. A vascular surgeon was called but could not repair the damage.

The patient came to Frei, Mims and Perushek to find out why this happened to her. Gary Mims and associate Zachary Desmond agreed to handle her case. They went to one of the foremost authorities in knee replacement surgery. He reviewed the case and told the lawyers that this never should have happened no one drills through the back of the femur during this type of procedure.

The case was prepared for trial. Experts were hired, depositions were taken, and just prior to trial the case settled for $1.4 million. This was slightly less than the statutory maximum for medical malpractice cases in Virginia, regardless of the extent of injury, the amount of medical bills or lost earnings or earning capacity, the law limits the amount the plaintiff can recover from the doctor, hospital or their insurance companies. The settlement allowed the patient, who was wheel chair dependent, to make her home handicap accessible, to purchase a vehicle specially equipped for wheel chair access, and to purchase a motorized wheel chair.

Missed Notification to Patient Results in Untimely Death

Through a tragic error in physician office communications, a 60 year old man’s testing was delayed, leading to a delayed Stage IV cancer diagnosis, and ultimately his death. The patient visited his doctor for an annual physical. As he was a longtime smoker, the doctor ordered a chest CT and told the patient this would be done every year from now on. The radiology report, sent solely to the doctor, found a small lung lesion that was “likely benign” but should be followed up in six months. The doctor noted the report in the patient’s file but the patient was not notified of the report nor the recommended follow up. Six months later, the radiology practice notified the doctor that his patient had not returned for the six month follow up. A second, tragic error in office communications then occurred: the doctor tells his nurse to call and remind the patient. She does call, but tells the man to come back in six months, not that he needed his follow up right then. When his cancer was diagnosed, it was determined that he was too sick to undergo chemotherapy and he died. A successful, confidential settlement was reached.

Patient Goes to Prince William Hospital for Throat Surgery, and is Discharged a Year Later With Both Legs Amputated Above the Knees

This 60 year old developed throat cancer and was admitted for throat surgery. He expected to be discharged within several days. The throat surgery was successful, and the cancer was removed. However, the day after surgery, the patient underwent bilateral leg amputation. Almost a year later, he was discharged to his home.

The patient was never told why he lost his legs. He contacted Frei, Mims and Perushek to find out. The case was handled by Gary Mims and associate Zachary Desmond. After seeking the advice of surgeons from Johns Hopkins and the University of Kentucky, they learned that the patient had peripheral vascular disease before the surgery and that due to the prolonged surgery the arteries that supply blood to the legs became blocked. The symptoms were recognized by the nurses, but were not addressed medically. Timely intervention by a vascular surgeon could have reestablished blood supply and the legs could have been saved.

After vigorously preparing for the case for over a year, the case settled just weeks prior to trial. The settlement was for 1.6 million dollars. This was put into a structured settlement which will provide tax free income to the patient/client for the rest of his life. It will replace his lost income (since he was a laborer and cannot ever work again), to make his home wheel chair accessible and provide for daily transportation and care.

Doctor Ignores Sleep Apnea Condition; Patient Dies from Anesthesia Error

A husband and father in his 50s schedules an outpatient knee replacement, recommended by his orthopedic surgeon. His wife becomes anxious after many hours aa other patients come out of surgery and are discharged. She’s then told by the surgeon that her husband had died, even before the surgeon entered the operating room. She is offered no explanation other than ‘sometimes these things happen.’ Partner Gary Mims obtained and reviewed the medical records and unraveled the mystery: the anesthesiologist was supervising an anesthetist (CRNA) who failed to learn that the patient had sleep apnea and manage him accordingly. Further, when the patient’s oxygen level dropped dangerously, the CRNA failed to take timely corrective action (turning off the sedative) which would have restored the oxygen levels. Mims chose one of the nation’s leading anesthesiologists and a highly experienced CRNA to help establish that the standard of care was violated. A confidential settlement was reached during mediation – one that provides for the man’s family to fund college tuitions and his wife’s retirement.

$1 Million for Oxygen-Deprivation Brain Damage and Death of 16-Year-Old Plus Policy Changes

The 16-year old daughter of a British Air Force officer died at a military hospital after displaced intubation caused catastrophic oxygen loss and permanent brain damage. That sentence seems simple and clear, however, after years of communication and appeals, it was only through this lawsuit that the parents were able to learn how and why their daughter had died. In this case, the parents came to us to get answers. Not just answers, but they also sought to ensure that something like this would never happen again. Partner Gary Mims succeeded in both counts: the family learned that the girl’s breathing tube had become displaced and was not corrected in time to prevent brain damage and death. Further, the government-run military hospital put in a letter to the parents the new policy it had adopted that would prevent a similar error to occur. In addition, a $1 million settlement was achieved.

Hospital’s “Audit Trail” Reveals Physician’s Untruths in Negligent Anesthesia Case

A 52-year-old man endured septic shock, acute respiratory distress syndrome (ARDS), 60 days in the hospital and another 120 days in recovery following negligent anesthesia care during surgery. Complications following his first surgery (colorectal resection with ileostomy) eventually led to the need for a second surgery (ileostomy revision). During the second surgery, immediately after the anesthesia was administered, the patient vomited and aspirated, sending him to the ICU for ARDS and septic shock. The patient’s condition between the surgeries – his bowel was not functioning properly – put him at increased risk for vomiting when the anesthesia was administered. With that history, the standard of care would be to insert a nasogastric (NG) tube through the nose and down the throat to drain the bowel prior to the operation.

However, no NG tube was used. While the doctor claimed to have thoroughly reviewed the patient’s chart, our firm found through the hospital’s “audit trail” that the doctor had spent only a single minute with the chart prior to the second surgery. Further, the trail revealed that, after the surgery, the doctor had edited her pre-surgery anesthesia-plan note three times with messaging that would shift blame to the surgical team. Clear evidence of the anesthesiologist’s untruths and chart manipulation led to offers to settle the case. Attorney Matt Perushek obtained a fair settlement to comfortably compensate the patient for permanent lung damage from the aspiration, pain and suffering.

Anesthesiologist Skips Routine Precautions Resulting in Death of 16-Year-Old Boy in Outpatient ACL Repair

A routine ACL injury benches a 16-year-old football player. His parents take him to the hospital for the outpatient procedure with plans to take him home for rehabilitation. Mom and Dad kiss their son and he is wheeled away for the pre-operative nerve block. What happened next is a nightmare: the nerve block (bupivacaine) is injected, the boy suddenly goes into cardiac arrest and dies. The hospital offered the parents no explanation. The autopsy revealed that the bupivacaine had been injected accidentally into a blood vessel, and it traveled to the heart and killed the boy. Partner Gary Mims filed suit, consulted with experts in anesthesiology and learned that simple precautions, routinely used by anesthesiologists, would have prevented the boy’s death. Had the anesthesiologist used the routine precaution of injecting epinephrine prior to injecting the bupivacaine, and had used a heart monitor, the emergency would have been avoided. A confidential, 7-figure settlement was reached.

Anesthesiologist’s Failure to Adjust Blood Pressure for the “Beach Chair” Position Causes Stroke and Brain Damage

A young Marine Corps Colonel tears a rotator cuff playing tennis. He goes in for outpatient surgery and awakens unable to speak or use the left side of his body? What happened? He had a stroke? Why, he and his wife asked? The surgeon said he didn’t know. Finally, they asked their lawyer, why would a healthy man have a stroke during a fairly common outpatient procedure? Partner Gary Mims took the case to determine whether the stroke should have been recognized earlier so it could have been treated. Our investigation led us to a leading anesthesiologist at Harvard, and we learned that the stroke was actually due to the negligence of the anesthesiologist. A confidential settlement provided a seven-figure compensation to the patient and the answer to what happened. Here’s what happened. The surgeon preferred to perform shoulder surgery with the patient sitting up (a beach chair position) which offers many benefits but also requires the lowest, safe level of blood pressure. When the patient is in the beach chair position, the blood pressure recorded at the bicep is below that in the brain. What happened in this case? The blood pressure was lowered to a safe level if the patient was lying flat, but in the sitting position it was simply too low, and the brain was starved of adequate blood flow resulting in an ischemic stroke.

Corrective Facial Surgery Performed on Wrong Side, Resulting in New Nerve Injury

A 50-year-old woman had suffered a nerve injury to the left side of her face during a car accident in Massachusetts. The trigeminal nerve injury left the victim in extreme, unrelenting pain. She came to Virginia to undergo treatment with the Gamma Knife procedure, a type of radiation treatment that would “kill” the pain-causing nerve. In a tragic error, the procedure was performed on the opposite side of her face, injuring her otherwise healthy trigeminal nerve, leaving the victim now with pain on both sides of her face. Partner Gary Mims filed suit against the doctor and the hospital. When the hospital offered to settle the case for $300,000, the defending doctor declined to settle stating that the hospital’s offer was enough. We accepted the hospital’s settlement and took our suit against the doctor to trial. The jury deliberated just 20 minutes and returned a verdict for the plaintiff for $800,000.

$800,000 for Failed Corrective Eye Surgery, Victim Now Unable to Open Eye

In preparation for her wedding, a 60-year-old woman sought cosmetic surgery to remove puffiness surrounding her eyes. The blepharoplasty surgery is known as relatively simple procedure to remove fat from the eyelids. Unfortunately, the surgeon went too deep and cut the muscle that controls the upward and downward movement of the eyelid. The plaintiff is forced to use tape to hold her eyelid up. The defendant offered $200,000 to settle the case which the plaintiff declined. Partner Gary Mims asked the jury to award $800,000 – which they did.

Jury Awards $400,000 to Woman Subjected to Invasive Exam by Inova Urgent Care Orderly

A young professional woman was preparing to travel from Fairfax to Chicago on business and thought she might have a urinary tract infection. Before leaving town, she went to an INOVA Urgent Care to be examined. Upon arrival she was shown to an examination room, told to disrobe and that doctor would be in to see her. Shortly thereafter a young man dressed in scrubs came into the room and performed a pelvic examination and left. When the physician came in and performed the same examination, the patient then realized that she’d been inappropriately examined, which violates the standard of care. The patient’s injury was not physical but emotional. The hospital denied liability and refused to negotiate beyond offering $25,000—the jury felt otherwise and awarded $400,000.

Firm Wins Funds for Child Left Fatherless due to Negligent Psychiatric Treatment

A woman came to us seeking justice for her granddaughter, for whom she was legal guardian. The girl’s troubled father committed suicide after he was released from the hospital where he was being treated for psychiatric issues. Our expert found that the man had been overmedicated and had been prescribed what was an abrupt change in his psychotropic medication. Further, he’d been discharged from the hospital without a treatment plan. The parties agreed to mediate the case and avoid lengthy litigation. However, this was at a time of the strictest stay-at-home orders during the global COVID-19 pandemic. Our firm arranged for the mediation to take place using remote video conferencing where all parties and the mediator participated simultaneously. A successful settlement was achieved that provides for the daughter.

Wrongful Death: Repeated Failure to Diagnose Skin Cancer

A retiree who worked for the U.S. Government and served under several presidents, visited his dermatologist for a small growth on his chin. The doctor ablated it with liquid nitrogen, “freezing” it off. The growth returned. The doctor assured the patient there was no cause for concern and once again ablated the growth. The next time the growth came back, at the request of the patient, the doctor removed the lesion and sent it to pathology. The result? AIt was a malignant melanoma, which sadly and ultimately resulted in the man’s death. The key factor in the medical malpractice case was: if the doctor had biopsied and diagnosed the cancer at the first or second visit – which is the only way to prove or exclude cancer — would the patient’s life been saved? The defense expert claimed that the cancer was so aggressive that even early diagnosis and treatment would have made no difference. The problem with that argument is that the ablation of the lesion at the first and second visits actually destroyed the evidence that could have established whether or not it was cancer and treatable. Our expert found that the doctor violated the standard of care since melanoma is highly curable if detected in early stages. Further, had the doctor used a non-invasive, dermatoscope to examine the lesion, which has proven highly effective in early identification of cancerous growths, he likely would have biopsied the lesion earlier. The case was resolved through a successful but confidential settlement for the family.

Failure to Diagnose Cancer Settles for $1 Million

A 36 year-old father of two sought medical help for severe knee pain which then developed into severe back pain as well. His doctor ignored a specialist’s recommendation for an MRI and instead treated him for the back pain for the next 12 months. Yet his condition continued to deteriorate, until his hip spontaneously fractured. The cause was a larger cancerous tumor, a tumor that would have been detected by the recommended MRI. By that time, the Ewing’s sarcoma had metastasized and sadly, the patient died. Plaintiff successfully argued that had the MRI been performed as recommended, the cancer would have been found before it metastasized and the patient’s likelihood of cure would have been 65 to 70 percent.