Brien Roche
Brien Roche is a medical malpractice lawyer serving all of Northern Virginia, including:
It is substandard care by a health care provider that injures a patient. In a malpractice action the patient must prove what is the standard of care. In addition the patient must prove a breach of that standard. Also you must prove that the breach injured you. Finally you must prove what that damage is.
Malpractice may arise in a number of different forms:
Doctors who are sued for medical negligence fight these claims. They fight to win. If you have been the victim of medical fault you need an experienced medical malpractice attorney. The lawyer must be up to the challenge. Brien Roche is up to the challenge. With over 40 years of trying cases in the Fairfax, Virginia area he has a proven track record. He has brought home substantial compensation for his clients.
For more case results that Brien Roche has handled, see our Verdicts and Settlements and Reported Cases. All case results are specific to the facts of that case. Each case is unique. The outcome of these cases does not define the outcome of your case.
Don’t wait, let Brien Roche fight for you – Call or contact us for a free consultation
Before any suit is filed against a doctor, available sources of info on a doctor should be checked out. In addition checking out a doctor’s background will better equip you in terms of coming up with questions for the doctor.
Some websites that may be helpful in that regard are the following:
In medical malpractice cases, lawyers are sometimes accused of suing too many people. Sometimes that is necessary. Sometimes the lawyer does not know exactly who the culprit is. That may not be known until you get further into the case. If you feel that you know who the right defendants are and they are doctors or nurses, there may be some logic in trying to reach a deal with the defense attorney to only sue the entity and not sue the individuals. However the entity should admit:
Standard of care loosely means what the reasonably prudent doctor would do in that case. In most cases the standard of care is not in writing. Instead it is a product of one doctor saying what the standard is. In other words the standard that applies to your case may be disputed. That is, the plaintiff may say the standard is “X”. The defendant may say the standard is “Y”. It then becomes a question for the jury or judge to decide what is the standard in this case. Call, or contact us for a free consult.
The standard may vary from locality to locality. Also it may vary from state to state. In most specialties the standard is a national standard. However it need not always be so.
In order to prove that standard you need to retain a doctor with experience in that field. She must state what the standard is that applies to the treating doctor. Also an expert should state the standard was then breached.
The concept of standard of care is basic. It is the footing of your case. It is not what a single doctor thinks should be done. Rather it what the reasonable doctor does. It is an objective standard. It is not subjective.
Practice Guidelines have been published by a number of groups to guide doctors. They may deal with certain conditions. Hence guidelines can be helpful in a medical malpractice case. They may help define what is the standard. However they can also be your foe.
In 2010 the Affordable Care Act provided for the office of Health Policy and Research. It was to develop practice guidelines. These were to establish the legal standard of care. In addition they could serve as a “safe harbor” for doctors. If the doctor complied with the guidelines then the doctor was “safe”
In a Virginia case a hospital and radiology group were ordered to produce redacted copies of Employment Agreements The hospital had required that the primary findings from radiology be reported first in written reports. This way it was clear to the treating doctor what was primary. However in this case the radiologist did not comply. He put the primary finding at the end of the report.
The trial court ruled that the contract between the doctor and the hospital should be produced to the plaintiff. The hospital in effect set the standard for the doctor. Call, or contact us for a free consult.
Sexual assault by health care providers is not unheard of. In reviewing cases of this nature you need to review the following:
If you have been sexually assaulted by a doctor or feel you are the victim of medical malpractice and have a basis for making a claim, contact us.
Also for more information about medical malpractice cases, see the other pages on this site and see also the pages in Wikipedia. Call, or contact us for a free consult.
A breach of the standard of care may come in a number of ways. It may be seen in the way a procedure is done. It may be in the failure to diagnose. In addition it may be in a failure to obtain informed consent.
Studies indicate that doctors make the wrong diagnosis in 10% to 15% of office visits for a new problem. The average office visit last no more than 21 minutes. Being able to diagnose the problem depends on the patient giving complete info. Therefore that info must include a correct history and a clear statement of symptoms.
Some simple things that can be done to increase the chances of the doctor making the correct diagnosis are:
Getting to the bottom of what is going on with the patient may be a matter of putting many things in the target zone. The goal is to cross out all but one of them. That can’t be done if the correct one was never in the target zone. The crossing out is based on exams of the patient, tests and films.
In an article in The Washington Post by Sandra Boodman, she reports that diagnoses are missed, wrong or delayed in 10-20% of the cases. Likewise a 2009 report funded by the U.S. found that 28% of 583 diagnostic mistakes were life-threatening or resulted in long term problems. In 1991 the Harvard Medical Practice Study found that misdiagnosis was a cause of 14% of adverse events. In addition it reported that 75% of these errors involved fault of the doctor.
Many misdiagnosis issues are never detected. Many of them go undiscovered for years until they cause some problem. Call, or contact us for a free consult.
There is no question that the emergency room is a prime place for a misdiagnosis. In that setting the doctor is seeing the patient for the first time. In addition the patient may not give a complete history. Also the doctor is short on time. In other words you have the basics for a bad outcome.
A VA study reported that more than half a billion primary care visits occur each year in the United States. It noted at least 500,000 missed diagnostic chances occur each year at primary care visits. Many of them result in harm.
A research team from Johns Hopkins University School of Medicine analyzed data from the National Practitioner Data Bank. This bank is maintained by the U.S. Hopkins reported on the primary cause of medical malpractice claims. In this study they examined 25 years of malpractice payments as reported through the data bank. What they found was that misdiagnosis was the most common, the most costly and also the most deadly of all medical errors. The research team reviewed 350,000 different malpractice cases.
In 41% of the misdiagnoses the result was patient death. The average payment for these successful misdiagnosis cases was $389,000. The highest category of claims were obstetrical claims which averaged $695,000.
Examples of serious cases of misdiagnoses include mistaking an ectopic pregnancy for appendicitis, mistaking an aortic dissection for severe heartburn. In addition there was mistaking a brain stem stroke for an episode of being dizzy.
To some extent the fear of misdiagnosis has led doctors to over treat. This is seen in emergency rooms where people come in complaining of dizziness. As a result they may get a CT scan of the head. Nationwide these scans cost millions of dollars. In most cases they are useless. Call, or contact us for a free consult.
Commonly misdiagnosed illnesses include such conditions as lupus, celiac disease, fibromyalgia, multiple sclerosis, and lyme disease. Many of these conditions carry somewhat similar symptoms.
Lupus is a chronic inflammatory disease. It carries with it symptoms of fatigue, rash, joint pain and kidney, heart and lung damage. The tests to make a proper diagnosis are complete blood count, chest X-ray and specific DNA testing. In addition various cell testing may be fairly definitive in making the diagnosis.
Celiac disease is an autoimmune disorder where the person cannot digest gluten. The symptoms are vomiting, abdominal pain, bloating, diarrhea, weight loss, anemia and leg cramps. The tests to make the diagnosis are blood tests looking for certain antibodies, plus small intestine biopsy and DNA testing.
Fibromyalgia is a chronic arthritis like disorder with widespread pain. There is no definitive test available. A diagnosis is made when the patient reports a history of widespread pain lasting more than three months and the presence of at least eleven tender points that are extremely sensitive to pain.
Multiple Sclerosis is a progressive autoimmune disease. It attacks the central nervous system. In addition it produces muscle spasms, lack of coordination, balance problems, blurred vision, and cognitive impairment. The tests to make the diagnosis are blood tests to rule out other disorders, a lumbar puncture, and an MRI.
Lyme disease is an infection that is caused by a tick bite. It produces symptoms of shortness of breath, chest or rib soreness, abdominal cramping, and nausea. In addition there may be symptoms of vomiting, a rash at the site of the bite, neck stiffness, and twitching of the face or eyelids. If there is no rash visible then there is a two-step blood antibody test that may make a diagnosis. Also see the post on this site on Lyme disease.
Chronic fatigue syndrome has long been a subject of debate among doctors. The symptoms can include constant pain, difficulty concentrating and extreme exhaustion. Any personal injury attorney handling a case with a plaintiff who has chronic fatigue needs to appreciate the effect that physical injury can have on these people.
For years people complaining of these symptoms have been subject to ostracism. Some doctors doubt the overall diagnosis.
Many doctors believe there can be different causes of these symptoms. They may include viruses and genetic problems. Some doctors still believe the condition is psychiatric.
In 2010 a committee of the Food and Drug Administration recommended that people with chronic fatigue syndrome be barred from donating blood. Its bona fide existence has received some validation from this.
Chronic fatigue syndrome is not the only illness that has not been taken seriously. Multiple sclerosis was treated as hysteria or chronic alcoholism. Today it is recognized as an auto-immune disease. In addition stomach ulcers were thought to be caused by stress. Later doctors proved that a bacteria was the cause. Call, or contact us for a free consult.
The law grants to patients the right to choose whether to obtain medical treatment. It requires doctors to provide the patient correct info as to diagnosis, the nature of the proposed treatment and risks of treatment. Also alternatives to that treatment should be presented. The doctor’s failure to provide that info may be medical malpractice.
Informed consent claims may be an element of a medical malpractice action. Prior to rendering treatment a doctor should obtain the informed consent of the patient. The need for this consent and the content of what is to be said to the patient is established through an expert witness.
Professor George Annas from Boston University’s School of Public Health stated at a meeting of the ABA that informed consent was under attack. He cited the fact that doctors were encouraged to perform procedures without informed consent. In addition he stated the process of obtaining informed consent was really just a matter of having a patient sign a form. Ensuring that the patient understood what was going on was not required.
Between 2004 and 2009 the National Institutes of Health funded a study that sought to find ways to improve treatment for premature babies. Some of the newborns were given different levels of oxygen. Annas maintains that the parents were not informed of the risk of death or blindness that came with this treatment.
As a result of Annas’ comments, in 2014 the ABA decided to engage in a study of the issue of informed consent. Starting in October of 2014 a committee held a series of town hall meetings across the U.S. The goal was to gather info on informed consent. At this point it is unclear as to what the committee will do with info that it gathered.
Unfortunately what all too often happens with consent forms is that the patient is given a form and told to sign it. Sometimes that form is presented shortly before the procedure. It may be that the doctor as part of an office visit has already explained the form. However that is not the norm.
In an ideal world the procedure and all of the issues referenced above are explained to the patient orally. Those oral statements are then summarized in writing. The patient then reviews the form outside of the doctor’s office. Only after the patient has signed the informed consent form is the procedure scheduled.
The whole concept of obtaining informed consent becomes tougher where the patient has some diminished capacity. In that case a medical agent must give the informed consent.
Some hospitals go the extent of having informed consent navigators. They are present before the patient undergoes the procedure. That way it is clearly documented that the patient understands all of the issues. Also for more information on informed consent see the pages on Wikipedia.
The fact that a patient has signed a consent form does not mean that the patient has consented to any fault of the doctor. Indeed if there is no issue of consent then the consent form is not relevant. It should not even be presented as evidence during a trial. However the defense may try to rely upon the consent form as a basis for showing that the patient understood the risks. In addition they will argue the patient assumed those risks. That is not the purpose of an informed consent form.
Imagine during the course of surgery the surgeon perforates the bladder. The fact that that risk was disclosed in the consent form does not protect the doctor. The consent form is not even relevant. Call, or contact us for a free consult.
Hip replacement surgery has become the bread and butter of many orthopedic surgeons. Many of these are unnecessary. Hip pain, where there is no arthritis typically is a clue to the fact that a new hip may not be needed.
The cause of many hip symptoms is that the ball and socket in the hip do not fit. This is called impingement. It is like putting a square peg into a round hole. The ball of the hip bone puts extra pressure on the rim of the socket. This rim is called the labrum. The socket is encircled with cartilage which provides cushion between the two bones. When that cushion breaks down as a result of the ball not properly fitting it produces pain.
To repair this the surgeon makes half-inch incisions around the hip and then re-contours the ball into a round shape. That way it fits into the hip socket. Next the cushion around the socket is repaired. Finally it is secured onto the bone with stitches that anchor it. As a result there should now be a perfect match between ball and socket.
This type of repair is done outpatient. The patient can go home that day.
A hip replacement may have served the same purpose as this hip repair. However the hip replacement is more dramatic. It also costs much more. Hip repair in a case where the hip bone is simply a little too big for the socket is the preferred course of action.
However even before this hip repair is done the first course of action is injections. These are designed to reduce inflammation. They are followed by physical therapy. That may solve the problem. However if the hip bone is too big for the socket then some repair is needed.
Every year approximately 300,000 people undergo hip replacements in the U.S. Many of these are posterior where the surgeon enters the joint from the rear.
Another procedure allows entry from the front. This avoids the cutting of muscles and tissues that are part of the posterior entry. Through the anterior entry the muscles are stretched aside. It minimizes any pain from such cutting.
This approach is minimally invasive. Most patients are up and walking either the day of surgery or shortly thereafter.
Another plus is that an X-ray can be taken while the surgical site is still open. This allows changes to the placement of the new hip. Although X-rays can be taken during the posterior procedure, it is much more difficult. Most surgeons wait until the patient is in the recovery room before reviewing the X-ray. However at that point it is too late to make changes.
Call, or contact us for a free consult.
Knee replacement surgery is needed when the cushion between the bones has worn down. That cushion between the bones is the cartilage. The knee bones themselves are held in place through ligaments that tie the bones together and keep you stable as you walk or run.
This surgery involves the removal of the damaged bone and the placement of metal components. Also a metal plate in placed to have a smooth surface for the bones to glide across.
A double knee replacement may seem like a lot. However it is becoming more common. The plus of doing both knees is that only one surgery is necessary. In addition there is only one rehab needed. These patients must be in good health, have equally severe arthritic pain in both knees and be younger than 80 years of age.
The knee implants that are used today are more durable than years ago. Ninety percent (90%) of them will last more than 20 years.
It is important prior to a dual knee replacement that the patient be in good shape. This involves working the knee muscles. The muscles should also be stretched in order to improve range of motion.
The need for this surgery is always case specific. It should be gauged not just on function but on pain level. The surgery is open and more often than not is being performed on senior citizens. It carries with it the risks of infection, difficulty with rehab, potential cross-addictions and all of the other problems of old age.
In “legal lingo” causation means proximate cause. The word proximate technically means “near”. As such the way to think of proximate cause is that it is the near cause. In contrast is the remote cause. This concept is explained in a bit more detail in my book entitled Law 101.
The example that I gave in that book of proximate cause is one where a father is playing a game of catch with a child. A father throws the ball a bit too hard. The ball goes through the neighbor’s window into the back of the house onto the back porch. It knocks over the metal grill which then rolls down the hill. The grill strikes another neighbor in that downhill yard. Finally that other neighbor dies from the impact.
The question then arises as to whether the father’s fault is a proximate cause of the neighbor’s death. That question probably would be up to a jury to decide. However it’s difficult to see that the father’s conduct is the proximate or near cause of the neighbor’s death. The father had no reason to expect that the ball he was throwing would go through the neighbor’s house from front to back. He had no reason to expect the death of the downhill neighbor. As a result that death is not something that is reasonably foreseen. Therefore probably there is no proximate cause.
If on the other hand the ball had injured the homeowner who was standing in the front window there probably would be a finding of proximate cause. That can be foreseen. In other words the father’s conduct was a proximate cause of that neighbor being injured. Call, or contact us for a free consult.
In medical malpractice cases what is to be foreseen or should be foreseen is an important concept. Another important concept is that even if the doctor was at fault the patient would have died anyhow. If that is the case then the doctor’s fault is not a proximate cause of the death. I call this defense the “shit happens” defense. That type of defense is present in most misdiagnosis cases. The defense says that even if the diagnosis had been made at that time the outcome would have been the same. The outcome being death or a poor result.
The point to be made in regards to causation is that this is a tricky point. Many medical malpractice cases are tried on that issue. In many cases there is no significant issue as to the doctor’s fault. Instead it becomes a question of whether or not that fault was a proximate cause of damage. That basic concept is overlooked by many.
A doctor’s failure to diagnose may result in significant loss to a patient. However the patient must have a 50% or better chance of survival or recovery in order to prove causation based upon this theory. This is called the loss-of-chance doctrine. If the patient has less than an even chance of survival or recovery then the doctor may be made to pay for the reduction in that chance. This theory is premised upon a legal treatise known as the Restatement of Torts. It says that if the doctor’s conduct increases the risk of harm then the doctor may be liable for that increase.
However not all jurisdictions recognize the loss-of-chance doctrine. However it is a legal doctrine with substantial authority. It should be pursued in the appropriate case.
As stated herein there are many forms of malpractice. One form that merits a closer look is diabetes malpractice.
The American Diabetes Association (ADA) has standards as to the care of diabetes. If these are complied with, they provide the means to bring the blood sugar of most diabetics under control. Daily testing of blood sugar by the patient is one of the standards. Regular testing of glycosylated hemoglobin by the doctor is another standard. These provide the info to allow changes in insulin to bring blood sugar levels as close as can be to that of a non-diabetic. The failure of a doctor to use this type of routine may be diabetes malpractice.
It is high levels of blood sugar in the small blood vessels that pose the danger. These vessels serve areas of the body like the kidneys and the nerves in the hands and the feet. They also serve the retina of the eye. Patients that are informed of the deadly route of diabetes and the ease within which it can be controlled become faithful to the testing habits. Therefore the key is getting that info to the patient. This promotes the well-being of the patient and avoids diabetes malpractice. Call or contact us for a free consult.
In a study published in March of 2011 from the University of Texas Health Science Center in San Antonio, a new drug named Actos was reported on. People who took it were less likely to develop diabetes than a like group who was given a placebo. Actos is from the same class of drugs as Avandia. The latter had been found to increase the risk of heart attack. Actos is believed to be safer than Avandia. However it has been linked to increased risk of congestive heart failure and the FDA is looking at links to bladder cancer. Questions continue as to whether this drug in fact prevents diabetes. It may be masking symptoms by decreasing blood sugar levels.
The ADA has been forthright in stating these basic standards of care. They urge all doctors to alert patients to enforce them within their own practice.
Any diabetes malpractice analysis is a two-way street. You not only look at the fault of the doctor but also have to look at the conduct of the patient.
Diabetes is sometimes called the lifestyle disease. Your risk of getting this blood sugar disorder rises if you live an unhealthy lifestyle. If on the other hand you follow a healthy diet, exercise and control your blood pressure, weight and cholesterol, then the risk is much less.
There are many things that can be done in that regard:
Call, or contact us for a free consult.
Part of the reason that our healthcare system is so expensive is because the system is focused on dealing with symptoms as opposed to dealing with prevention. Some dietitians say the system is broken.
That prevention comes in the form of diet control and good exercise.
One of my daughters, Andrea Roche, has a master’s degree in Nutrition from Simmons College in Boston. She is a Registered Dietitian.
What follows is a condensed version of an article that she published in a publication of the Massachusetts Dietetic Association dealing with the issue of including registered dietitians in the Affordable Care Act.
Accountable Care Organizations (ACOs) have become the buzzword in healthcare the passage of the Affordable Care Act (ACA) has set our healthcare system on a new course with ACOs leading the way. Dietary professionals must get on board. The Academy of Nutrition and Dietetics (AND) must support ACOs. They should also take action to insure Registered Dietitians (RDs) are included. Also they must provide for payment of RDs. RDs are not listed as providers that can form an actual ACO. This issue has not been greatly discussed. In light of this shift, the greater inclusion of RDs in every aspect of health policy is essential.
The ACO framework should include RDs because RDs are focused on prevention and wellness.
An ACO is a group of healthcare providers that agrees to account for the quality and cost of Medicare beneficiaries who are in traditional fee-for-service programs. The goals of this model are twofold. First of all, reduce in per-patient cost and disease-related problems. Finally, increased patient satisfaction, use of resources, transparency and exchange of info. These goals are based on a shared care model.
In regard to dietetics, all healthcare professionals and RDs should work to provide diet services aimed at prevention, treatment and management of problems. In addition to their role in critical care, dietitians are also involved in health promotion. They also help prevent disease, look for wayhs to intervene early, set up links with community services and provide a wide range of research. RDs’ knowledge, skills, and training equip them to provide services that augment other healthcare providers.
RDs are the experts in delivering Medical Nutrition Therapy (MNT). MNT services for prevention, wellness and disease management have proven to be effective. In addition the Institute of Medicine has declared that the registered dietitian is currently a single identifiable group of healthcare professionals with standardized education, clinical training, continuing education and national credentialing requirements necessary to be directly reimbursed as a provider of nutrition therapy.
RDs are cost-effective quality care providers. For example, Massachusetts General Hospital in Boston reported that patients who had received MNT in a 6-month study had a 6% decrease in total cholesterol, including LDL levels. Furthermore, a cost-savings of $4.28 for each dollar spent on MNT was reported. The Lewin Group reported that RD MNT results in an 8.6% decrease in hospital use. There was also a 16.9% decrease in doctor visits for patients with diabetes. It is clear that bringing RDs in as providers increases quality of care and decreases cost.
The ACO model shows promise as a driver to improve quality and cost control. The intent of the ACO is to improve quality and control costs. This can be better realized by including RDs as providers.
For more information on related topics of medical malpractice, see the other pages on this site.
There are many defenses that may be raised in a medical malpractice claim:
Call, or contact us for a free consult.
In Virginia there is a limit on how much a plaintiff may receive in a medical malpractice action. That limit or “cap” is 2.4 million dollars as of 2019 and increases $50,000 per year. The cap is an absolute limit. No more than the cap can be paid to a single patient. This is without regard to the number of persons sued.
The cap was passed years ago to address what was seen as the medical malpractice crisis. It was designed to keep down malpractice premiums for doctors. Medical malpractice lawyers in Virginia fought the cap. They fought it on the grounds that it deprived injured persons of the right to be fully paid for their injury.
The state high court has upheld the cap. Bases for challenge to the cap are that it deprives an injured plaintiff of his right to a jury trial. In other words the cap infringes on the jury’s role of setting damages. There is also the due process argument: the cap takes from the injured party the chance to be fully paid for injuries. This right is a property right.The taking of this right without full payment violates due process.
In the District of Columbia, there is no such limit. Doctors in D.C. are treated the same as any other people. They can be made to pay as much as any others who commits a wrong. However within the District of Columbia notice must be given to health care providers before suit can be filed. The purpose of the notice is to allow for the parties to discuss settling the matter.
The logic behind the malpractice cap is to control insurance costs. Evidence of whether it in fact has that effect is in conflict.
Those who oppose the cap maintain the insurers reap all the profit. Also they argue the carriers do not pass these savings on in lower costs. Furthermore they point out that the cap is unfair in those cases where the plaintiff has expenses that exceed the cap. In addition the effect of the cap is that the insurers will never make an offer anywhere near the cap. That is, they know that by going to trial they are exposed to no more than the cap. So why should they offer anything near the cap? They might as well try the case.
If you or a loved one has been a victim of medical malpractice in Virginia or Washington DC contact Brien Roche today for an experienced, aggressive attorney.
Reviews: See how Brien Roche helped other injured clients in Northern Virginia
© 2020 Brien Roche Law
