Legal Question in Medical Malpractice in Virginia

So, as of now, what are your provable damages? And, no, I don't mean what

might happen in the future.

Hello and thanks for writing. Mr. Hendrickson is right to ask what are the damages you can prove up to today. But let's go at this one step at a time.

First, we'd want to know your medical history in detail, both before and during this pregnancy. You mentioned medications; we'd need to identify those and study their effects. Same with doctor visits of all kinds, hospitalizations, and other procedures.

We'd want to know where in Virginia you live (this bears on what the standard of care is, it's higher in big cities than rural areas), and who your treating OB/GYN(s) are or were (we can look up their adverse event histories). Any assessment of what your treating doctor did or didn't do will depend heavily on that standard of care, which in turn depends in part on your age at time of pregnancy: the older you were, especially over 35, the more risk goes along with any pregnancy, both to the mother and to the fetus.

Most importantly, we'd want you to be seen and evaluated right away by a qualified OB/GYN if you haven't been yet. Get seen immediately, get squeezed in, camp out at the doctor's office, whatever you have to do if you haven't yet had such a visit. Consider choosing a physician who specializes in high-risk pregnancies. Be prepared to tell the doctor(s) everything we've listed here and more. Bring prescription bottles, Rx forms, paperwork from previous doctor visits, everything you have. Everything you tell the doctor and her or his staff is strictly confidential unless you choose otherwise. The doctor(s) should do a slew of tests, starting with a detailed ultrasound. Amniocentesis, and various genetic tests on the floating fetal cells extracted, might be recommended depending on your age. Depending on the gestational age of the fetus, it may now be too late to address any fetal abnormalities. On the other hand, there may be nothing wrong, which would be a huge relief.

The rest of our assessment would have to await your child's birth or later. Now we get into the timing and factual constraints of a possible lawsuit, which gets a little tricky. The Va. birth injury statute, Va. Code 38.2-5001, which gives us a long time after birth to file a claim and entitles successful claimants to reimbursements from a state birth injury fund, covers only injuries occurring in the course of labor and delivery. Pre-natal medical errors like this one would be considered medical malpractice, not specifically birth injury. For medical malpractice, as for many other torts, you have to file suit within 2 years of the injury. The Va General Assembly has refused to relax this rule for later-discovered medical problems. But there's still time: you can file suit up to two years from the first misdiagnosis, which will be well after your child is born, and you can increase the damages you seek after the case is filed, depending on what later evidence discloses about your child's condition and its causes. Va. law provides for a hearing in front of a medical malpractice review panel, if either side requests it, before the case ever goes to trial, but that's something to deal with after suit gets filed.

If your child shows no harmful effects of the failure to diagnose your pregnancy, your damages are limited to the mental anguish associated with the lack of prenatal care. My suspicion is that those damages would be very modest--not enough to make a lawsuit worth it--without evidence of harm to the fetus. So let's focus on your health and that of your baby for now, and see what we can learn at and after the birth.

As you might imagine, medical malpractices case are complex indeed. For Virginia cases, my law firm--even though we're very experienced litigators--works closely with expert Virginia medical malpractice attorneys. I've already corresponded about your case with one of the best med mal lawyers in the Commonwealth, who also happens to be generous with his time on things like this, and he's willing to have a conference call among the three of us as soon as next week. Depending on what we learn during that call, we may recommend a more detailed consultation in our office, for which we charge something, but we can discuss that later. Meanwhile, see if you'd like the free initial telephone conference, let me know some convenient weekday times, and I'll set it up.

Take care of yourself and the pregnancy from now on, that's the main thing. Write or call me anytime. --Steve Pershing.

Stephen B. Pershing, Esq.

The Chavers Firm, LLC

1250 24th St., N.W., Suite 300

Washington, D.C. 20037

(202) 467-8324 (voice)

(202) 466-0502 (fax)

[email protected]