From the October 28, 2002 Virginia Lawyers Weekly. [Page 15]

Medical Malpractice

Dilated Esophagus — Difficulty Swallowing

Type of Action — Medical malpractice

Type of Injuries — Inability to eat without a feeding tube, reconstructive surgery and multiple hospitalizations

Name of Case — Seymour v. Rodriguez

Court — Petersburg Circuit Court

Special Damages — $159,777.28

Awarded / Settled — Awarded

Amount — $1.25 million plus prejudgment interest from May 7, 1999

Plaintiff's Attorneys — Carolyn C. Lavecchia and Joshua D. Silverman, [Williamson & Lavecchia, L.C.] Richmond

Highest Offer — $0

Other Useful Information — The plaintiff, 72, presented to the defendant with difficulty swallowing and shortness of breath. Diagnostic tests showed that she had a motility disorder of her esophagus and a hiatal hernia requiring surgical repair.

On May 7, 1999, the defendant performed surgery to reduce the hernia. He also performed a Nissen fundoplication, where a portion of her stomach was wrapped completely around her esophagus to prevent reflux esophagitis. The Nissen fundoplication was contraindicated due to the plaintiff's motility disorder and due to the absence of objective evidence that she ever suffered from reflux.

Over the next few months, the plaintiff's swallowing problems worsened because the fundoplication was too tight for someone afflicted with a motility disorder. In September 1999, the defendant advised the plaintiff that she had a recurrence of her hiatal hernia and that he would have to operate again.

During the surgery, the defendant found that the plaintiff did not have a recurrent hiatal hernia, but she did have a dilated esophagus. The plaintiff's experts testified that the standard of care required undoing the Nissen fundoplication. Instead, the defendant did nothing to improve the plaintiff's condition. Immediately after the surgery, he advised the plaintiff's family that he had repaired the non-existent recurrent hiatal hernia and that she would be fine.

The plaintiff's swallowing problems worsened rapidly to the point that she needed a feeding tube to eat. When her daughters questioned the defendant about her condition, he told them there was nothing wrong with her and that she needed to see a psychiatrist.

Over the next 7-8 months, the plaintiff was hospitalized on several occasions for multiple problems with her feeding tube. She required surgery to remove about one-half of her esophagus and to reconstruct her esophagus with part of her stomach. She is now able to eat, but only in small quantities. She continues to have difficulty keeping food down at times.

The plaintiff's medical bills total $159,777.28. The jury deliberated for about two hours before returning a verdict of $1.25 million plus prejudgment interest from May 7, 1999.

The defendant has indicated that he will file post-trial motions to reduce the verdict on the grounds that the verdict is excessive and that it exceeds the medical malpractice cap. It is anticipated that the defendant will argue that the cap is $1 million because the initial acts of negligence occurred before Aug. 1, 1999, when the cap was raised to $1.5 million. However, the most egregious acts of negligence occurred in the second surgery in September 1999, and the plaintiff's most significant damages occurred after the September 1999 surgery. Both parties believe the amount of the cap is an issue of first impression because the alleged acts of malpractice occurred as the cap was raised. This issue is likely to present itself again as the cap is raised annually until 2008.

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