In 2019, Anthonette Jasco (“Jasco”) filed a Virginia medical malpractice lawsuit alleging that Lawrence Shall, M.D. and his employer, Vann-Virginia Center for Orthopaedics, P.C., were negligent in failing to properly diagnose and treat her knee injury, which resulted in complex surgery, infection, pain and suffering, permanent disability, and an increased risk of future infection. She also alleged that she would continue to incur medical expenses, endure pain and suffering, and disability. She claimed $2 million dollars in damages.
After a five-day trial in the Circuit Court for the City of Norfolk, the Virginia medical malpractice jury returned its verdict against Dr. Shall and his employer, awarding Jasco $530,000 in compensatory damages. Nonetheless, the circuit court entered an order setting aside the jury’s verdict on damages, finding that Jasco’s damages mostly derived from her infection and that her other complaints—the residual valgus deformity, pain and suffering, and lost wages—were not as serious. The circuit court also found that there was no evidence that the delay in diagnosing her fracture proximately caused the infection. Concluding that evidence about the infection had a material effect on the jury’s decision about damages, the circuit court reduced the award to $50,000. Jasco accepted the judgment under protest and appealed.
The Court of Appeals of Virginia, in its unpublished Memorandum Opinion dated April 2, 2024, stated: “Here, there is credible evidence that a prompt diagnosis would have led to a better outcome for Jasco. The record supports her claim that appellees’ failure to exercise reasonable and ordinary medical care proximately caused a delay in surgical correction of the fracture, contributed to her post-operative knee valgus, pre-operative and post-operative discomfort, and lost wages. A rational jury could reasonably find that these damages were a consequence that would not have occurred but for appellees’ negligence … Based on this evidence and its permissible inferences, a rational jury could reasonably conclude that: Jasco had a longer period of discomfort—43 days—before the diagnosis; the surgery was more complicated than it would have been without the delay; Jasco suffered a longer and more painful post-operative convalescence than necessary; Jasco has a permanent deformity—valgus. She claims to now suffer a “very bad” quality of life due to valgus and her knee pain. These claims could all reasonably be attributed to appellees’ deviation from the standard of care and deemed a natural and probable result of that breach. She would thus have a right to pursue damages for her knee valgus, pain and suffering, and lost wages.”
“Unlike Jasco’s other claims, nothing in the record shows that the delayed diagnosis proximately caused her infection … Jasco’s only evidence of causation—Dr. Sanders’s testimony—did not establish that appellees’ negligence either was the “but for” cause of her infection or made the infection more likely than not to occur. The jury could only guess how much the delayed diagnosis caused her infection—if at all. Given the lack of evidence to support Jasco’s infection claim, it was within the circuit court’s authority to set aside the verdict.”
Remittitur
“To uphold a remittitur order, we must have available in the record both the trial court’s conclusion that the verdict was excessive and the trial court’s analysis demonstrating that it considered factors in evidence relevant to a reasoned evaluation of the damages when drawing that conclusion; then, we must determine whether the remitted award is “reasonabl[y] relat[ed] to the damages disclosed by the evidence” … In an attempt to remedy the fact that damages were likely awarded for a claim that was not proven, the circuit court correctly decided to reduce the award—but we hold that the court improperly chose the amount of $50,000 … credible evidence—Jasco’s testimony—supports the jury’s verdict related to the delay-in-diagnosis and lost-wages items of damages. Thus, the circuit court erred in finding that most of Jasco’s pain ended after the surgery was performed. As the record shows that this erroneous factual finding factored into the circuit court’s analysis when fashioning the new award of damages, we hold that the circuit court abused its discretion in assigning a $50,000 figure to the damage award … we reverse the remittitur and remand the case for a new trial on damages.”
Source Jasco v. Vann-Virginia Center for Orthopaedics, P.C., Record No. 0704-22-1.
If you or a loved one suffered harm as a result of medical negligence in Virginia or in another U.S. state, you should promptly find a Virginia medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
Click on the “Contact Us Now” tab to the right, visit our website, or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your state who may assist you.
Turn to us when you don’t know where to turn.
