Brien Roche
Brien Roche is an experienced medical malpractice lawyer serving all of Northern Virginia, including:
Simply put it is substandard care by a health care provider that causes injury to a patient. In a malpractice action the patient must prove what is the applicable standard of care, a breach or violation of that standard of care, that the breach caused some injury or damage and finally what that injury or damage is. Malpractice may arise in a number of different procedures or treatments:
Doctors and hospitals who are sued for medical negligence fight these claims aggressively and they fight to win. If you have been the victim of medical negligence you need an experienced medical malpractice attorney that is up to the challenge. With over 40 years of trial experience in the Fairfax, Virginia area, and a proven track record of bringing home substantial compensation for his clients, Brien Roche is up to the challenge!
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 and no conclusion can be drawn as to how your case may turn out based upon the results of another case.
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Before any suit is filed against a doctor, available sources of info on a doctor should be checked out. Checking out a doctor’s background will better equip you in terms of preparing your questions for the doctor.
Some websites that may be helpful in that regard are the following:
In a medical malpractice case standard of care loosely means what the reasonably prudent practitioner would do in that circumstance. Frequently the standard of care is not written but rather is simply a product of one medical expert saying what the standard of care is. The standard of care that applies to your case may be disputed. That is, the plaintiff may say the standard of care is “X”. The defendant may say the standard of care is “Y”. It then becomes a question for the jury or judge to decide what in fact is the standard of care that applies to this case and then also to determine whether or not the defendant violated that standard of care.
It is conceivable that the standard of care may vary from locality to locality. It is also conceivable that the standard of care may vary from state to state. In most medical specialties the standard of care is a national standard of care but it need not always be so.
In order to establish that standard of care it is necessary to retain a physician who has experience in that particular specialty to testify as to what the standard of care is that the defendant healthcare provider should have rendered. Typically that expert would also testify as to whether or not the standard of care was then violated.
As you can see, the concept of standard of care is important. The standard of care is not necessarily what an individual physician thinks should be done in that case but rather it is a more objective standard as to what the reasonably prudent practitioner would do in that circumstance. In that sense the standard of care is referred to as being objective as opposed to subjective.
Practice Guidelines are established by a number of different entities in order to guide physicians and health care providers on how to deal with certain conditions. These guidelines can be helpful in a medical malpractice case but they can also be your worst enemy.
In 2010 the Affordable Care Act provided for the office of Health Policy and Research to develop practice guidelines that would establish the legal standard of care and thereby potentially serve as a “safe harbor” for physicians.
The Agency for Health Care Research and Quality (AHRQ) maintains the national guideline clearinghouse which has over 2,400 practice guidelines prepared by 300 organizations. Many of them are prepared by medical practice groups.
In the course of a medical malpractice action these practice guidelines should be reviewed with several ideas in mind:
In some rulings from local circuit court judges, a hospital and radiology group were ordered to produce redacted copies of Employment Agreements with radiologists. It was felt that the Employment Agreements reflected exactly how radiological findings were to be reported on the radiology written report forms. The hospital had dictated that the significant findings be reported first so that it was more evident to the clinician as to what was important. In this particular case the radiologist had not complied with that but rather had put the most significant finding at the bottom of the report.
The trial court ruled that the contract between the physician and the hospital was of importance because the hospital had dictated how the important findings were to be ordered on the radiology reports.
In that sense the hospital was setting the standard of care for the radiologist. That was felt to be important and therefore properly subject to discovery.
Sexual assault by health care providers is not unheard of. In reviewing cases of this nature, which may qualify as medical malpractice actions, it is important that the following be considered:
If you have been sexually assaulted by a health care provider or otherwise feel that you are the victim of medical malpractice and feel that you have a basis for making a claim, contact us.
For more information about medical malpractice cases, see the other pages on this site and see also the pages in Wikipedia.
The breach of the standard of care may come in a number of ways: incorrect performance of the procedure (as seen in the procedures referenced previously),misdiagnosis of the condition, failure to provide informed consent, performance of unnecessary surgery and other ways.
Diagnosis-misdiagnosis are contrary terms but frequently go hand-in-hand. Studies indicate that doctors make the wrong diagnosis in 10% to 15% of office visits for a new problem.
The average office visit with most physicians last no more than 21 minutes. The physician’s ability to make a diagnosis is dependent up the patient providing complete information, giving an accurate history and then being able to clearly articulate what the symptoms are.
Some simple things that can be done to increase the likelihood of the physician making the correct diagnosis are:
The term “differential diagnosis” is well-known to physicians but typically is not appreciated by the patient. A differential diagnosis means that the physician probably has come up with a likely diagnosis as to what the problem is but also has listed other potential causes of the problem based upon symptoms, test results and a physical exam. That differential diagnosis does not mean that the doctor is uncertain as to what is going on with the patient. Rather what it means is that the physician is being thorough in terms of indicating that it is possible that there are other processes at work.
The failure to come up with a differential diagnosis frequently leads to a misdiagnosis. A misdiagnosis simply means that the doctor has gotten it wrong.
In an article in The Washington Post by Sandra Boodman, she reports that diagnoses are missed, incorrect or delayed in 10 – 20% of the cases. Likewise a 2009 report funded by the federal government found that 28% of 583 diagnostic mistakes were life-threatening or had resulted in death or permanent disability. In 1991 the Harvard Medical Practice Study found that misdiagnosis was responsible for 14% of adverse events and that 75% of these errors involved negligence on the part of the physician.
Ms. Boodman also recounts in her article the recent story of the death of the 12 year old child by the name of Rory Staunton who was sent home from an emergency room in New York after doctors missed the infection that quickly killed him.
Unfortunately many misdiagnosis issues are never detected, either by the patient or a physician. Many of them simply go undiscovered for years until they cause some significant problem.
There is no question that the emergency room is a prime place for a misdiagnosis to occur since in that setting the physician is seeing the patient for the first time typically, the patient frequently is not giving a complete history and the physician is frequently short on time.
A Veterans Administration study showed that with more than half a billion primary care visits annually in the United States, at least 500,000 missed diagnostic opportunities occur each year at these primary care visits. Many of them result in significant harm.
A research team from Johns Hopkins University School of Medicine reported on their analysis of data from the National Practitioner Data Bank maintained by the federal government as to the primary cause of medical malpractice claims. What they found was that misdiagnosis was the most common cause. In this study, the physicians involved examined 25 years of malpractice payments as reported through the data bank. What they found is that misdiagnosis is the most common, the most costly and also the most deadly of all medical errors.
A few examples of serious instances of misdiagnoses include mistaking an ectopic pregnancy for appendicitis, mistaking an aortic dissection for severe heartburn or mistaking a brain stem stroke for an episode of dizziness.
The research team reviewed 350,000 different malpractice cases.
In 41% of the cases the misdiagnoses resulted in 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.
To some extent the fear of misdiagnosis has led physicians to overtreat. This is seen frequently in emergency rooms where people who come in complaining of dizziness frequently are going to get a CT scan of the head. Nationwide these scans cost millions of dollars and in most cases are useless.
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 that carries with it symptoms of fatigue, rash, joint pain and kidney, heart and lung damage. The tests that should be performed to make a proper diagnosis are complete blood count, chest X-ray, and specific DNA testing along with various cell testing that may be fairly definitive in making the diagnosis.
Celiac disease is an autoimmune disorder that is characterized by the inability to digest gluten. The symptoms are vomiting, abdominal pain, bloating, diarrhea, weight loss, anemia and leg cramps. The tests that should be used 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 that is characterized by widespread pain throughout the body. There is no definitive test available but a diagnosis is typically 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 extraordinarily sensitive to pain.
Multiple Sclerosis is a progressive autoimmune disease that attacks the central nervous system. It produces muscle spasms, lack of coordination, balance problems, blurred vision, and cognitive impairment. The tests to be performed 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 tick bite. It produces symptoms of shortness of breath, chest or rib soreness, abdominal cramping, nausea, 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 is recommended to make a diagnosis.
Chronic fatigue syndrome has long been a subject of controversy in medical and legal circles. 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 devastating effect that physical injury can have on these people.
For years people complaining of these symptoms have been subject to ostracism and humiliation from the scientific establishment who doubt the overall diagnosis of chronic fatigue syndrome.
Patients who suffer from this condition feel a certain sense of urgency that the medical establishment confirm the validity of the illness and the source of the illness. Many doctors, however, believe that there can be different causes of these various symptoms including viruses and 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.
The condition continues to be a source of significant controversy but its bonafide existence has received some validation as seen in the above.
Chronic fatigue syndrome is not the only illness that has not been taken seriously over the years. Multiple sclerosis was initially treated as hysteria or chronic alcoholism. Today it is recognized as an auto-immune disorder. Likewise, stomach ulcers were initially thought to be caused by stress until scientists proved that a particular bacteria was the cause.
The law grants to patients the right to choose whether to obtain medical treatment and requires that a healthcare practitioner provide the patient with accurate information as to the diagnosis, the nature of the proposed treatment and the risk associated with that treatment and also alternatives to that treatment. The physician’s failure to provide that information itself may be medical malpractice. Informed consent claims are frequently an element of a medical malpractice action. Prior to rendering medical treatment to a patient a healthcare provider should obtain the informed consent of the patient. The informed consent means as the term implies, that the patient has been advised as to the nature of the procedure and the risk associated with the procedure. In most medical malpractice claims the need for that disclosure and the extent of the disclosure is to be established through expert medical testimony.
Professor George Annas from Boston University’s School of Public Health recently contended at a meeting of the American Bar Association that informed consent was under attack. He cited the fact that physicians in some specialties were encouraged to perform procedures without informed consent and that the process of obtaining informed consent was really just a matter of having a patient sign a form as opposed to ensuring that the patient actually understood what was going on. Between 2004 and 2009 the National Institutes of Health according to Annas funded a study that sought to find ways to improve treatment for premature babies. Some of the extremely premature newborns were given different levels of oxygen. Annas maintains that the parents were not informed of the risk of death or blindness. As a result of Annas’ comments, in 2014 the American Bar Association decided to engage in an intensive study of the issue of informed consent. Starting in October of 2014 a committee held a series of town hall meetings across the United States to gather comments about informed consent. At this point it is unclear as to exactly what the committee will do with information that it gathered.
Unfortunately what all too often happens is that the patient is simply presented with a form and told to sign it. Sometimes that form is presented to the patient shortly before the procedure is undertaken. It may well be that the physician as part of an office consultation has already explained the procedure and the reason for it but that quite frequently is not documented.
In an ideal world the procedure and all of the issues referenced above would be explained to the patient orally, those oral statements would then be summarized in writing for the patient to then review in a calmer atmosphere outside of the physician’s office and only after the patient signed the informed consent form would the procedure then be scheduled.
The whole concept of obtaining informed consent becomes problematic where the patient has some diminished capacity or no capacity. In that instance a medical agent should be required in order undergo the same process of obtaining informed consent.
Some hospitals go the extent of having informed consent navigators present so that before the patient undergoes the procedure it is clearly documented that the patient understands all of the issues referenced above.For more information on informed consent see the pages on Wikipedia.
The mere fact that a patient has signed an informed consent form or what is frequently just called a consent form does not mean that the patient has consented to any subsequent negligence on the part of the health care provider. Indeed, in most instances where there is no issue of consent or informed consent then the existence of the consent form is not relevant and should not even be presented as evidence during the course of the trial. Frequently the defense will attempt to rely upon the consent form as a basis for showing that the patient understood the risks and agreed to assume those risks. That is not the purpose of an informed consent form.
For example…
For instance, if during the course of surgery the surgeon perforates the bladder, the fact that that risk was disclosed in the consent form does not insulate the physician from liability. Indeed, the existence of that consent form is not even relevant unless there is an issue in the case of informed consent.
Hip replacement surgery has become the bread and butter of many orthopaedic surgeons. Many of these surgeries are simply unnecessary. Hip pain, where there is no arthritis, typically is a clue to the fact that impending hip replacement surgery may not be necessary.
The cause of many hip symptoms is due to the fact that the ball and socket in the hip do not fit together perfectly. This is called impingement. It is somewhat like putting a square peg into a round hole. The ball of the hip bone puts extra pressure on the rim of the socket which is called the labrum. The socket is encircled with cartilage which provides cushion between the two bones. When that cartilage breaks down as a result of the ball not properly fitting, then it produces pain.
In order to repair this condition, the surgeon makes half-inch incisions around the hip and then re-contours the ball into a round shape. That way it fits perfectly into the hip socket. Next the torn cartilage, that is the cushion around the socket, is repaired. Then it is secured onto the bone with stitches that anchor it there. At that point there should now be a perfect match between the ball and the socket.
This type of repair surgery is typically done as outpatient surgery. The patient can go home that day.
Although a hip replacement may have served the same purpose as this hip repair, the hip replacement is obviously much more dramatic. It is also much more expensive. Hip repair in a circumstance where the hip bone is simply a little too big for the socket should be the preferred course of action.
However even before this hip repair is attempted the first course of action should be a plan of injections, anti-inflammatory medications and physical therapy. In some instances that may solve the problem. If however it simply is an instance of where the hip bone is too big for the socket then probably some mechanism of repair surgically is going to be necessary.
Every year approximately 300,000 people undergo hip replacements in the United States. Most of these hip replacements are what are called Posterior Hip Replacements, where the surgeon enters the hip joint from the rear.
Another procedure allows surgeons to enter the hip joint from the front and thereby avoid the cutting of muscles and tissues that is necessary as part of the posterior entry. Through the anterior hip replacement the muscles are stretched aside thereby avoiding the cutting and minimizing any pain from such cutting.
This anterior approach is referred to as being minimally invasive.
Only about 20% of surgeons perform the anterior procedure. That is principally because most surgeons were trained in the posterior procedure and they do not wish to undergo the extensive training that is necessary to learn how to do an anterior procedure.
As a result of the minimized muscle damage and inflammation, most patients are up and walking either the day of surgery or shortly thereafter.
Another advantage of the anterior procedure is that an intraoperative X-ray can be taken while the surgical site is still open thereby allowing adjustments to the placement of the new hip as necessary. Most surgeons who do the anterior approach use a special operating table
Although X-rays can be taken during the posterior procedure, it is much more difficult and typically the surgeons wait until the patient is in the recovery room before reviewing the X-ray. At that point of course it is too late to make any adjustments.
If you are considering a hip replacement, it probably makes sense to consider the anterior approach.
Knee replacement surgery becomes necessary when the cushion between the bone 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 provide stability.
The knee replacement involves the removal of the damaged bone, its replacement with metal components and the insertion into the joint of a metal plate that provides a smooth surface for the bones to glide across.
A double knee replacement may seem like an ominous undertaking but it is becoming more common. The advantage of bilateral knee replacement is that only one surgery is necessary. Patients that may be considered for this bilateral knee replacement are those who are in good health, have equally severe arthritic pain in both knees and are 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.
Another advantage of a dual knee replacement is that the patient will only need one period of rehabilitation.
It is important prior to a dual knee replacement that the patient be in good shape. This involves strengthening the knee muscles. The muscles should also be stretched in order to improve range of motion.
After the surgery the patient will almost certainly need pain medication. This pain medication not only serves the purpose of reducing the pain but also then allows mobility. That increased mobility then increases blood flow which reduces the likelihood of blood clotting.
The necessity for this surgery is always case specific but should be gauged not just on functionality but more importantly on pain level since it is dramatic open surgery that more often than not is being performed on senior citizens who simply because of their age are not prime candidates for open procedures due to the possibility of infection, difficulty with rehabilitation, potential cross-addictions and all of the other infirmities associated with 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 as opposed to 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 an instance where a father is playing a game of catch with a child and the father throws the ball a bit too hard and as a result it goes through the neighbor’s window into the back of the house onto the back porch knocking over the metal grill which then rolls down the hill and strikes another neighbor in that downhill yard. That other neighbor dies from the impact. The question then arises as to whether or not the father’s negligence is a proximate cause of the neighbor’s death. That ultimate question probably would be submitted to a jury for determination. However from an objective point of view it’s difficult to imagine that the father’s negligence is the proximate or near cause of the neighbor’s death since the father had no real reason to expect that the ball he was throwing would necessarily go through the neighbor’s house from front to back, out the back window, hit a grill, knock the grill down the hill and kill a neighbor at the bottom of the hill. That is not something that is reasonably foreseeable and therefore probably there is no proximate cause there. If on the other hand the ball had hit the homeowner who was standing in the front window looking at the father and child having a game of catch then it is more likely in that instance that there be a finding of proximate cause i.e., that the father’s negligence was a proximate cause of the neighbor being struck.
In the context of a medical malpractice case that type of analysis may have some application although the analysis tends to be more complicated. That is, a frequent defense in a medical malpractice case is that even if the doctor was negligent the patient would have died anyhow. If that is the case then the doctor’s negligence is not a proximate cause of the death of the patient. I call this defense the “shit happens” defense. That type of defense is especially pertinent in misdiagnosis cases where the doctor has not made the proper diagnosis and as a result the patient dies. The defense that is frequently asserted is that even if the diagnosis had been made at that time the outcome would have been the same i.e., death.
The point to be made in regards to causation is that this frequently is a sticky point in regards to a medical malpractice case. Many medical malpractice cases are tried on that issue. In many cases there is no significant issue as to the doctor’s fault but rather it becomes a question of whether or not that fault was in fact a proximate cause of damage to the patient.
A physician’s failure to properly and promptly diagnose a condition may result in significant loss to a patient. A patient must have a 50% or better chance of survival or recovery in order to prove causation based upon the physician’s negligent failure to diagnose. Under the so-called loss-of-chance doctrine if the patient in fact had less than an even chance of survival or recovery then the physician may be liable for the reduction in that chance of survival or recovery in the medical malpractice context. This overall theory is premised upon a legal treatise known as the Restatement of Torts which indicates that if the physician’s conduct or failure to act increases the risk of harm then the physician may be liable to the extent that such increase exists.
Not all jurisdictions recognize the loss-of-chance doctrine but it is a legal doctrine with substantial authority and one that should be pursued in the appropriate case.
The evidence necessary to prove causation is frequently difficult to elicit since many physicians are reluctant to express opinions on issues that some might deem to be speculative or at least not within the normal province of a mere mortal physician.
There are many defenses that may be asserted to a medical malpractice claim:
In the state of Virginia, there is currently a limitation on recovery in medical malpractice actions. That limitation or “cap” is 2.4 million dollars as of 2019 and increases $50,000 per year. The cap is an absolute limit meaning that no more than the cap can be recovered by a single patient regardless of how many defendants may be sued. The cap was implemented years ago to address what was perceived as the medical malpractice crisis to keep down malpractice premiums for Virginia physicians.Virtually every medical malpractice lawyer in Virginia fought the cap on the grounds that it deprived injured persons of the right to a full recovery.
In the District of Columbia, there is no such limitation on damages. Doctors in that jurisdiction are treated the same as any other citizen; i.e., they can be made to pay as much as any other citizen who commits a wrong. However within the District of Columbia there is now a requirement that notice be given to health care providers before suit can be filed. The purpose of the notice requirement is to allow an opportunity for the parties to discuss settlement.
The logic behind the malpractice cap is to control the cost of malpractice insurance premiums for health care providers.The evidence of whether it in fact has that effect is conflicting. Opponents of the cap maintain the insurance industry is the sole beneficiary of the cap and they do not pass these savings on to their policy holders in the form of lower premiums.Opponents of the cap also point out that the cap works an injustice in those cases where the plaintiff has actual medical care expenses and loss of income that exceeds the cap. They also point out that the effect of the cap is that the insurance companies will never make a settlement offer any where near the cap since they know that by going to trial their exposure is no more than the cap.
The cap has been challenged in Virginia. The Virginia Supreme Court has upheld the cap.The bases for challenge to the cap are that it deprives an injured plaintiff of his right to a jury trial. That is 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 opportunity to be fully compensated for injuries. This right to be fully compensated is a property right.The taking of this right without fair compensation is a violation of due process.
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.
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