Medical Malpractice Case Settled Quietly

It was early April, and the trial date was looming in a $3 million wrongful death suit against Carilion Clinic.

The Roanoke-based health care system and an independent doctor’s workplace were implicated of medical malpractice in the death of Glenn Garrett. According to the suit, doctors for the carriers failed to act after 2 chest X-rays, taken in 2009 and 2010, showed a possible mass in Garrett’s left lung.

Garrett passed away in 2011 of lung cancer, an illness that needs to have been discovered and treated after the very first X-ray raised a warning two years earlier, his widow and two children declared in the lawsuit.

Medical professionals for Carilion and Physician Associates of Virginia rejected any liability, setting the stage for an April 20 jury trial in a Roanoke courtroom.

On April 7, attorneys for Garrett’s household and the medical practices involved took an uncommon legal path– one that headed 22 miles north of Roanoke, to the Botetourt County Court house in Fincastle. There, they filed a petition asking a judge to approve a $1.3 million settlement of the case.

Judge Malfourd “Bo” Trumbo validated the arrangement April 23. Back in Roanoke Circuit Court, where the claim had actually originated and was still pending, lawyers had prepared an order asking that it be dismissed. Judge David Carson signed the order April 24.

Handling the case in such a way is unusual, stated University of Richmond law professor Carl Tobias, who agreed to review the court records in the case for The Roanoke Times. And it appears to have actually circumvented procedural rules.

Virginia law specifies that when a wrongful death case is settled, a representative of the victim can do so “previously or after an action is brought, with the approval of the court in which the action was brought, or if an action has actually not been brought, with the permission of any circuit court.”.

Any defect with the Botetourt settlement might have been repaired with the dismissal in Roanoke, “a technical reading of the statute appears to need approval of the settlement and termination in Roanoke,” Tobias wrote in an email. “I anticipate a lot of counsel will closely follow the language of the statute and look for approval from the circuit in which the case was filed.”.

Why didn’t that happen in this case? One theory is that lawyers for one or more of the parties preferred a distant place, such as Botetourt County, in hopes that the settlement would get away public notice.

“I assume they want to reduce possible media coverage,” Tobias said.

Jonathan Petty, a Richmond attorney who submitted the claim, decreased to comment on how the case was dealt with, mentioning a confidentiality arrangement. Lawyers on the other side likewise decreased to comment.

Paul Kuhnel of the Roanoke law firm of LeClairRyan, which had several legal representatives representing Carilion, Physician Associates and its 2 medical professionals, referred questions to Carilion spokesperson Chris Turnbull.

Turnbull declined to discuss the case, mentioning Carilion’s policy of not discussing litigation including current or previous clients.

In basic, he composed in an e-mail, “I have checked with lawyers for Carilion and comprehend that this type of venue modification is not uncommon in Virginia. The location of the settlement approval is generally made by mutual arrangement between all of the celebrations involved.”.

Failure to follow up alleged.

The story of Glenn Garrett’s disputed medical treatment, as told by court records, starts with a bad knee.

Garrett, a Christiansburg resident and a longtime staff member of the Montgomery County Sheriff’s Office, chose in 2008 to have his left knee changed. At the time, he was a patient at Physician Associates, an independent practice with workplaces in Roanoke and Salem.

The surgical treatment was to be done by Dr. Joseph Moskal of exactly what was then the Roanoke Orthopaedic Center, which was possessed by Carilon at the time and has actually because ended up being a department of the health system. As part of routine pre-surgery testing, Moskal asked that Garratt be examined by his medical care doctor, Dr. Daniel Bauer of Doctor Associates.

One of the tests that Moskal asked for was a chest X-ray. The very same thing occurred a year later, when Garrett decided to have his other knee changed.

Both times, the suit alleges, chest X-rays were taken by Carilion as part of the pre-operative tests.

Both times, the X-rays revealed a mass in Garrett’s left lung, triggering the radiologist to advise more evaluation.

Both times, the claims allege, Moskal and Bauer did not act on the details.

It was not till February 2011, when Garrett underwent a CT scan of his chest at LewisGale Medical Center, that he learned he had actually advanced stage lung cancer, his household now declares. Garrett died June 3, 2011. He was 68.

In a suit filed in Might 2013, Garrett’s family alleged that the two doctors and other medical providers failed to follow up on the uneasy X-rays with more treatment– not even telling Garrett that he had a possible mass in his lung.

Those failures led to Garrett’s death, the claim asserted in looking for $3 million in damages.

Resistance arguments turned down.

Had actually the case gone to trial, the jury likely would have heard complicated testament on who knew what about the X-rays.

As part of the tests preceding Garrett’s very first knee replacement, Bauer placed an order, at Moskal’s request, for the X-rays to be taken at Carilion’s pre-surgical testing center, according to the lawsuit.

A Carilion staff member apparently canceled Bauer’s order and instantly replaced it with one from Moskal when Garrett showed up for his consultation in January 2009.

That resulted in a situation of Bauer never receiving the test results, and Moskal getting them while never ever knowing they had been purchased in his name. The very same thing took place a year later on, when Garrett was being prepared for a second knee surgery, the suit alleged.

Such a situation entitled Moskal to a defense of statutory resistance, his attorney would suggest.

“By delegating [Garrett’s] pre-surgical testing to another physician, Dr. Moskal particularly declined responsibility to act or examine on test outcomes, consisting of chest X-rays, and appropriately, had no reason to understand that his management of the client’s X-ray results was needed,” the attorney wrote in court papers.

As for Bauer, his attorney said he was also entitled to resistance due to the fact that he never ever got the X-ray results, and therefore had no reason to know that his testimonial of them was required.

Calling the defense arguments “strained” and “an exercise in semantics,” Petty, the plaintiff’s lawyer, asked Carson, the Roanoke judge, to reject a movement that would have gotten rid of the physicians from the case.

Both physicians understood, or ought to have known, of the X-ray results and both ought to have followed up– even though the process ended up being muddled by the way it was managed within Carilion’s system, the complainants contended.

“Carilion’s data entry mistakes, inexplicable as they are, do not nullify” the doctors’ obligations, Petty wrote in court pleadings.

In November, Carson rejected the physicians’ plea of immunity, clearing the case to go to trial.

The court file in Roanoke consists of no indicator of the case being transferred to Botetourt County. For example, there is no motion for a change of venue.

And while the petition for a settlement submitted in Botetourt mentions that Garrett’s household had “asserted a medical malpractice claim,” it made no specific mention of the case in Roanoke. Nor did the petition supply any information of the supposed malpractice.

At the demand of everyone included, Trumbo dismissed the case prior to him and awarded $784,505 to Garrett’s widow and two youngsters. The remainder of the $1.3 million settlement went to Petty’s firm for legal costs and costs.

The names of Moskal and Bauer do not appear in the settlement files in Botetourt, which allege medical malpractice by Doctor Associates, Roanoke Orthopaedic Center and Carilion. Pointing out a “conflict of proof” in the case, the defendants denied liability but agreed to settle the matter.

Back in Roanoke, a one-page termination order went into the next day ended the claim, which named both the doctors and their employers. There’s no reference in the order of the $1.3 million settlement. To see that, somebody would have to drive to Fincastle– assuming he or she understood it was there.