By Damian D. Capozzola, Esq.

The Law Offices of Damian D. Capozzola

Los Angeles

Jamie Terrence, RN

President and Founder, Healthcare Risk Services

Former Director of Risk Management Services 

California Hospital Medical Center

Los Angeles

Elena N. Sandell, JD

UCLA School of Law, 2018

News: A female patient suffered from a venous varix in her brain. The condition was determined non-life-threatening, but the patient’s physician failed to note the condition on her list of current medical problems. When the patient became pregnant a few years later, the patient suffered immediate and serious complications after delivering her child, resulting in permanent injuries.

The patient’s husband brought suit against the patient’s primary care physician and his practice, alleging that the patient’s primary care physician failed to note the condition and that this failure resulted in the patient’s injuries. According to testimony, the injuries could have been avoided through a cesarean section delivery. A jury returned a verdict of $32.5 million, and the defendants appealed. The appellate court affirmed the results.

Background: The patient, a former teacher, exercise class instructor, and marathon runner, led an active lifestyle but began to suffer from persistent dizziness in 2004. When the patient sought medical treatment, an MRI revealed a venous varix in her brain. Although the venous varix was determined not to be the cause of her dizziness, the information was not noted on the patient’s list of current medical conditions or problems by the patient’s primary care physician despite the physician having received the report from the imaging center.

During the subsequent litigation, the plaintiff alleged that it should have been noted on the patient’s “problem list” to alert her other treating physicians of potential complications that might arise. The patient was not informed that her condition could lead to complications during childbirth. Unaware of possible complications, the patient became pregnant in 2007 and gave birth to her daughter in 2008.

Approximately 12 hours after delivery, the patient experienced a sharp headache that indicated the rupture of her venous varix. The patient immediately underwent emergency surgery to remove part of her skull, but was insufficient to prevent injury. The patient fell into a month-long coma and, upon awakening, suffered significant and debilitating injuries: the patient’s legs and left arm were paralyzed, her trunk muscles were severely impaired, and she experienced difficulty chewing, swallowing, and speaking. According to physicians, the patient’s injuries are permanent and could have easily been avoided through a cesarean section delivery rather than vaginal delivery.

The patient’s husband filed a lawsuit against the primary care physician and his medical practice, alleging that the physician’s failure to document the results of the MRI and the venous varix condition constituted medical malpractice. The defendant physician and practice denied any liability and wrongdoing.

After a two-week trial, the jury found in favor of the plaintiff, awarding $32.5 million. The defendants appealed the decision and alleged that the damages should have been limited to the statutory limitation for certain charitable organizations pursuant to the applicable state’s laws, that the plaintiff and his counsel misrepresented the amount of the patient’s medical bills, that the plaintiff entered into an impermissible contingent fee agreement for consulting services, and that plaintiff’s expert witness exceeded the bounds of the parties’ pretrial memorandum. None of these attempts to undermine the liability and damages verdict were successful. The appellate court found against the defendants and held that the trial court had not abused its discretion in denying the defendants’ post-trial motions, and that sufficient evidence had been presented to establish that the patient’s future medical expenses would be at least $11 million.

What this means to you: In this case, the underlying medical malpractice stemmed from the failure of the primary care physician to note the cerebral venous anomaly (a cluster of veins that can rupture) on the records. This demonstrates the important need for accurate medical records, and that the failure to provide them can constitute action below the applicable standard of care. When a physician or care provider is informed of or discovers material relevant for inclusion within a patient’s medical records, the provider should note it accordingly. The primary care physician here was copied on and thus informed about the venous varix but failed to document the condition.

Although such an anomaly is unusual to find in the brain and studies have shown that the risk of rupture may not decrease with cesarean section, the obstetrician needed that information to make changes in the obstetrical plans for this patient. Closer observation for changes in blood pressure, neurologic changes, complaints of headache, or nausea would have occurred evaluated based on the presence of the venous varix.

Consultation with neurologists and obstetricians familiar with this anomaly could have provided the patient’s obstetrician the opportunity to evaluate the risks of a vaginal delivery. Now that electronic records are available for physicians across the continuum of care, these omissions are less frequent — but if they occur, such omissions are more likely to constitute malpractice.

One additional note for physicians and care providers is the shared responsibility that the physician has with the patient to make sure that the medical history is complete. A simple discussion between the patient and the obstetrician reviewing her medical history might have given the patient the opportunity to inform the obstetrician of the venous varix.

In addition to certain laws limiting the amount of damages recoverable by plaintiffs, there are other methods for physicians and care providers to reduce excessive, unfavorable verdicts. An award of damages must be supported by evidence, although the level of evidence required may vary and be subject to the discretion of the court or the jury. Here, the defendants disputed the amount of damages even after the trial court lowered the initial jury award. Referencing previous decisions, the court reiterated that damages are considered excessive when it may be assumed that the jury did not exercise sound discretion and was instead influenced by passion, partiality, or corruption.

The fairness issue arose after the jury returned with an interrogatory regarding the family’s out-of-pocket medical expenses. Additionally, in his closing argument, the plaintiff’s attorney misrepresented the amount of medical expenses the patient’s family sustained. However, the defendants did not object to the statement when it was made and, furthermore, the judge instructed the jury that closing arguments were not to be regarded as evidence. Nevertheless, the jury returned an award that relied on the attorney’s misrepresentation.

Thus, following the defendants’ post-trial motion, the judge reduced the award to conform to the amount stated in the evidence presented during trial: approximately $3 million less than the amount incorrectly stated by the plaintiff’s counsel during closing arguments. The defendants also unsuccessfully challenged the award as to the patient’s future medical expenses, but the court found that there was sufficient evidence based upon the plaintiff’s expert testimony and the patient’s father’s testimony.

To place this case in a more general context, physicians and care providers have a wide variety of defenses available in the event of a medical malpractice action. Some of those focus on the medical aspects of the case — such as challenging what exactly the applicable standard of care is — and others focus on legal requisites. In this case, the defendant physician and practice group attempted to minimize the damages award to a limit provided for certain charitable organizations, based on an applicable state law.

Unfortunately for the defendants, they encountered procedural errors that precluded this defense. The court noted that this limitation is an affirmative defense that must be pled and proved. However, the defendants failed to raise the limitation within the appropriate time, and the court therefore determined that the defendants waived the limitation. In fact, the defendants sought to amend their answer to include this defense after more than four years from the beginning of litigation and two weeks after trial started. The defendants did not provide any explanation for the delay, and the court found that permitting the amendment would have resulted in prejudice to the plaintiff. The appellate court affirmed the decision and found that the defendants’ errors resulted in the document not being actually offered into evidence during trial. While these procedural aspects are largely the responsibility of counsel, it is important for physicians and care providers to be aware of such possible defenses and the pitfalls of delaying or not raising them.

Finally, medical malpractice cases almost always require expert witness testimony. Given the nature of malpractice actions, it is common for each side to retain an expert physician to testify in support of its arguments. Issues about the scope of the expert’s testimony can arise, and physicians and care providers may be successful in challenges limiting the scope of an opposing expert. In this case, the defendants unsuccessfully attempted such a challenge, claiming that the plaintiff’s expert witness exceeded the scope of the subject matter boundaries established by the parties. However, the court found that the parties had anticipated that the expert witness would testify on multiple topics, including the changing nature of the size of a venous varix and that increased pressure caused by pregnancy substantially increases the chance of rupture. The expert witness also was intended to testify about causation: If a cesarean section would have been performed, the patient would not have sustained such injuries. The court found that defendants were properly notified of the subject of the expert’s testimony and that no prejudice resulted from the testimony. Physicians and care providers should work closely with counsel from the outset of the case to evaluate not only their own expert witness’s testimony but also to evaluate and seek to challenge or undermine an opposing party’s expert witness.


Decided on July 31, 2018, in the Appellate Court of the State of Massachusetts; Case Number 17-P-960.