When Roanoke-area health care providers make their worst mistakes, the results can get buried in two places: graveyards and out-of-town courthouses.
Graveyards are where the victims of medical malpractice are buried; out-of-town courthouses are where the wrongful death lawsuits sometimes are settled, largely out of public view.
At least 21 times over the past decade in Roanoke Circuit Court, lawsuits were dropped after both sides tentatively agreed to settle claims that a patient died because of errors by a doctor, nurse or hospital. Lawyers then went to another courthouse — often in small towns such as Fincastle, Floyd and Stuart — to have a different judge approve the settlement.
Out-of-town settlements are less likely to catch the attention of news media or the public. The practice has drawn the ire of a federal judge, and critics say it subverts what the Virginia Supreme Court has called a presumption of openness in such cases.
“What’s going on is a serious problem, in no small measure because it is designed to circumvent access to important matters of public concern,” said Wat Hopkins, a communications professor at Virginia Tech who serves on the board of the Virginia Coalition for Open Government.
“People have an interest in how medical treatment is delivered and when there are problems,” Hopkins said. “When matters involving these kinds of institutions get into court because of allegations of some kind of wrongdoing, we are dealing with issues that demand public attention.”
Carilion Clinic was named as a defendant in 19 of the lawsuits settled beyond city limits. LewisGale Medical Center was sued in three of them. One of the cases involved both of the Roanoke Valley-based health care providers.
In all 21 cases, the two health care systems denied any wrongdoing, but they agreed to settle the lawsuits.
Court records show a total of $15 million was paid to families of patients who claimed loved ones died from a variety of errors: Vital organs nicked during surgeries; mix-ups in medications; missed diagnoses of what turned out to be fatal conditions; and, in one case, a botched intubation in which a plastic tube was shoved through the back of a patient’s throat.
Several attorneys who have represented estates in lawsuits against Carilion said its lawyers suggested an out-of-town venue during settlement talks — which they understood was an attempt to avoid negative publicity.
“It was part of the deal,” said Jonathan Rogers, a Floyd County attorney.
In written responses to questions, Carilion’s top lawyer did not directly address queries about whether the system was trying to dodge the news media.
Senior vice president and general counsel Briggs Andrews said it’s important to have a well-informed public. But, he added, “typically, pleadings in lawsuits are unreliable sources of information about patient care.”
In some cases, Andrews said, the relatives of a former patient are the ones who want settlement details to remain private.
Sometimes, relatives want to avoid the unwanted solicitations that can come with a large financial gain. “For others, it can mean not having to relive a tragedy,” Andrews said. “Whatever the reason, our goal is to do what’s best for all people involved.”
LewisGale spokeswoman Nancy May gave a similar response. “A settlement of this kind would be agreed upon by both parties,” she said, “and a family that is already grieving may prefer to move a case out of town for concerns about privacy.”
There’s little question that dropping a case in Roanoke in order to settle it somewhere else can benefit both sides.
But does the law allow it? One federal judge says no.
“Virginia law simply does not allow the parties to make an end run around the court where the case was brought and seek approval in another jurisdiction where it was not,” U.S. District Judge Michael Urbanski wrote in a January order.
Yet the practice continues.
How it’s done
It can happen the way it did with Meredith Winall.
In the winter of 2008, the 22-year-old was a senior at Virginia Tech. An industrial systems engineering major, Winall was on track to graduate with honors in the spring. She already had accepted her dream job, working for Disney World.
Halfway through her final semester, Winall began to suffer severe abdominal pain. She went to a nearby Carilion hospital, where she stayed for a week. During her treatment, Winall was given opioid pain medication.
The day before she was released, a lawsuit later alleged, doctors switched her to methadone — a much more potent drug that can be dangerous for people like Winall who have never taken it before.
Within three days, after taking the drug as it was prescribed to her, Winall had accumulated lethal amounts of methadone in her bloodstream. She died of an overdose March 30, 2008. It was one day after her 23rd birthday.
Two years later, Winall’s mother sued Carilion in Roanoke Circuit Court. The $2 million lawsuit claimed doctors improperly prescribed methadone and then failed to assess its effects on the young patient.
Carilion filed a response denying liability. It looked like the case was headed to trial.
Then, after 18 months of litigation, the attorney for Winall’s mother asked that the case be non-suited, a legal move that allows the plaintiff to withdraw a lawsuit before a final decision by a judge or jury. Although a non-suit can spell the end of a case, it also preserves the possibility of refiling the lawsuit later.
Typically, a non-suit is not contested and does not require a hearing before a judge, who signs an order ending the case. But the step is required before the case can start anew with the filling of a petition for settlement in a different locality.
At the time of the non-suit, Carilion had agreed to settle the case.
Two weeks later, a petition seeking a compromise settlement was filed in Charlottesville Circuit Court, two hours north of Roanoke. The petition stated that Carilion had agreed to pay $925,000 to settle the case, while continuing to maintain it had done nothing wrong.
At the request of both sides, a Charlottesville judge approved the settlement that day.
Back in Roanoke, the court file for the original lawsuit made no mention of the case being resolved in Charlottesville. For example, there was no motion to have the case transferred. And the settlement order in Charlottesville was silent about the non-suit in Roanoke.
The end result: Someone looking at the public record of the initial lawsuit would have no easy way to know that it had been settled for nearly $1 million, 120 miles away.
Since 2005, at least 20 other wrongful death lawsuits involving Carilion or LewisGale have been resolved in the same way, a review of court records by The Roanoke Times shows. The out-of-town settlements involving Carilion represent about half of all the wrongful death lawsuits the health care system has settled over the past decade.
The cases non-suited in Roanoke were later settled in the city of Charlottesville and the counties of Amherst, Alleghany, Botetourt, Floyd, Franklin, Henry and Patrick.
The amounts of the out-of-town settlements ranged from $275,000 to $1.75 million. Some of the larger sums approached the limit set by a state law that caps medical malpractice verdicts. The cap, which increases by increments each year, has gone from $1.7 million in 2005 to $2.2 million currently.
In nearly all of the cases, doctors or nurses accused of wrongdoing were removed as individual defendants before the lawsuits were settled by their employers.
Under Virginia law, settlements of wrongful death cases must be approved by a judge in a publicly filed court order that includes the monetary terms and a brief summary of the case. But the question of where that can happen is disputed.
Through her attorney, Winall’s mother declined to talk about her lawsuit against Carilion, or how it was resolved. Citing confidentiality agreements that are often part of the settlements, other family members who have brought lawsuits also declined to comment.
“I wish I could,” one of them said.
Is it allowed?
Judge Urbanski was appalled.
In January, the judge was scheduled to preside over a jury trial over the death of Seth Williamson, a well-known voice on public radio station WVTF. Williamson had died two years earlier after surgery to repair a hernia at LewisGale’s hospital in Blacksburg.
According to a products liability lawsuit, a faulty bedside medication device pumped fatal amounts of the painkiller Dilaudid into Williamson’s bloodstream.
With a trial date approaching, lawyers for both the plaintiffs and the defendants asked a state judge in Patrick County to approve a settlement of the case. The request was granted by Judge David Williams, who previously had signed off on the settlement of a second lawsuit brought by Williamson’s family, a state malpractice claim accusing LewisGale nurses of mishandling the pain pump.
That left the case in federal court. The lawyers then asked Judge Urbanski to dismiss the case.
Not so fast, they were told.
“Listen, you can’t pull the wool over my eyes,” Urbanski told the attorneys, according to a transcript of a Jan. 28 conference call the judge ordered.
“Without letting me know and while my case is pending, you all went running off in Patrick County and got this settlement approved down there without me knowing about it while a case is pending here in federal court and you’ve done it under seal to hide these issues from the public,” the judge said.
“I’m appalled.”
In the end, the earlier settlement of the products liability case was voided in Patrick County and resolved where it began, in front of Urbanski, who approved a $900,000 settlement, paid by the pump’s maker. It was later disclosed that LewisGale paid $1 million to settle the malpractice lawsuit in state court after The Roanoke Times filed legal papers objecting to the amount being placed under seal.
In some ways, the case was different from the 21 wrongful death lawsuits filed in Roanoke, non-suited there and settled elsewhere. For one thing, this case skipped from federal to state court. And the federal case was still pending when its counterpart was settled in state court.
However, the judge’s order cited the same state law that governs all such cases.
Virginia Code Section 8.01-55 states that a wrongful death lawsuit can be settled “before or after an action has been brought, with the approval of the court in which the action was brought, or if an action has not been brought, with the consent of any circuit court.”
Some lawyers on both sides of the aisle said that once a lawsuit is non-suited, the slate is wiped clean and a later settlement can be approved in any court. “This is for a judge to interpret, but our reading is that this type of approach is allowable,” said Andrews, Carilion’s general counsel.
The understanding by some lawyers is that “if an action is brought in Virginia and non-suited, it is as if the action was not brought under state law” — thus allowing for a settlement in an outlying jurisdiction, said John Lichtenstein, a Roanoke lawyer who is president of the Virginia Trial Lawyers Association.
Proponents of that interpretation point to a 2014 Virginia Supreme Court decision, holding that a case that follows a non-suit is a “new action” that “stands independently of any prior nonsuited action.”
But to Urbanski, a case should be settled where it was filed. A judge who has presided over a lawsuit since its inception can best evaluate its strengths and weaknesses, he wrote in his order, and determine whether the sums given to the victim’s survivors and their attorneys are appropriate.
“The statute makes sense,” the judge wrote.
Why it’s done
The cancer that killed John Sexton at the age of 43 started in his colon.
When the Roanoke man first complained of abdominal pain and rectal bleeding in 2002, Carilion’s doctors diagnosed him with hemorrhoids and diverticulitis, a digestive disease. It was nearly two years before they ordered a colonoscopy, which found a cancer that should have been detected and treated earlier, before it spread to his liver and lymph nodes, a wrongful death lawsuit brought by his family contended.
The lawsuit was filed in Roanoke Circuit Court in 2007. It was non-suited in March 2009. Two weeks later, it was settled for $500,000 in Floyd County Circuit Court.
“Why Floyd? That was for my convenience,” said Jonathan Rogers, the lawyer who filed the lawsuit and whose practice is in Floyd.
“Why not Roanoke city? That was because Carilion wanted to avoid publicity. It was part of the deal,” he said.
Like other plaintiff’s attorneys interviewed for this story, Rogers said he did not object to the way his case was resolved. There was no article in the newspaper to stir up painful memories for Sexton’s family, he said, or to subject them to unwanted solicitations for money.
“I understand it from both perspectives,” he said of the desire by both plaintiffs and defendants to avoid the spotlight.
“We’re not trying to hide the facts,” said Tony Russell, a Roanoke attorney who has agreed to out-of-town settlements while representing the victims of medical malpractice. “We’re trying to protect our clients from being victimized again.”
Wallace Wason, a Newport News attorney who represented the Tech student’s mother in her lawsuit against Carilion, put it this way in an email:
“While we recognize the principles of public access to court records, from a personal, humanitarian standpoint, my client would very much prefer to be able to do her grieving in private, without having information about her case or her finances widely made known through public media. That is the primary reason for any plaintiff to agree to have a settlement approved in a court other than where it was initially filed. Most prying eyes wouldn’t know to look there.”
Sometimes, Carilion said, it agrees to settle cases outside Roanoke to accommodate the plaintiffs or their lawyers, who might live or work closer to the alternative location.
Invariably, no one is inclined to raise a fuss about venue when a settlement is at hand. By then, “the plaintiffs have gotten what they wanted,” said S.D. Roberts Moore, a Roanoke attorney who specializes in malpractice cases.
When a case does hit the newspapers, Carilion officials said, the reports can be incomplete.
“When we settle a case, it means we will not have the opportunity to present our argument in a court of law,” Andrews said.
The desire to keep patient records private, as well as confidentiality agreements that are often part of a settlement, can lead to a simple “no comment” from Carilion. And when that happens, Andrews said, media reports often focus on what was alleged in the lawsuit.
“Being sued in a case does not mean that Carilion did anything wrong,” he said.
“As a nonprofit, every financial decision we make, including whether or not to settle a suit, comes back to the question: What is the best use of our limited resources? In some cases, Carilion may believe that trying a case would not be the best use of money even if we believe we can win based on the facts.”
Both sides say that if silence follows a settlement, that alone does not amount to secrecy.
After all, the final outcomes are a matter of public record — albeit in a different courthouse from where the original lawsuit was filed.
“It’s not as if the public was denied the right to know,” Rogers said. “It just makes it a little harder for it to know.”
Some sums a secret
Before sunrise Aug. 14, 2012, George Edward Tyler awoke to a throbbing headache and sharp, stabbing pains above his eyes. He took a Tylenol and tried to rest. A few hours later, a lawsuit later would allege, his wife found him lying in bed at their Botetourt County home, “ghostly white and incoherent.”
By the end of the day, Tyler was dead. The lawsuit blamed a doctor at LewisGale Physicians, who had put him on a blood thinner called Coumadin for heart problems, and one at Carilion, who prescribed him Bactrim DS for a urinary tract infection.
The two drugs can be dangerous when taken together. According to the lawsuit, Tyler’s doctors did not take that into account.
Like 20 other lawsuits against the two health care systems, the wrongful death lawsuit filed by Tyler’s wife was resolved in Roanoke after the two sides reached an agreement. But the settlement approved a few weeks later in Patrick County was different from most. It did not recite the sum of money the providers agreed to pay to Tyler’s family members and their attorneys.
Wrongful death settlements must state the amount of money that changed hands, the Virginia Supreme Court held in 2008.
That’s because of a “societal interest in learning whether compromise settlements are equitable and whether the courts are administering properly the powers conferred upon them,” the court held in ruling against four plaintiffs who asked that the financial terms of their medical malpractice settlements be placed under seal by a Fredericksburg judge.
While sympathetic to the victims’ desire for privacy, the high court ruled, their concerns were “not sufficient reason to override the presumption of openness.”
Yet in Tyler’s case, the amount of the settlement with Carilion and LewisGale was not a matter of public record.
When asked why, Carilion referred questions to Dan Frith, a Roanoke lawyer who represented Tyler’s family. Frith declined to comment, citing a confidentiality agreement. LewisGale’s spokeswoman said she could not talk about specific cases.
Tyler’s lawsuit is not the only one against LewisGale that ended with a secret settlement.
Two others — the one filed by Seth Williamson’s family and a second involving the death of a man who received the wrong kind of medications — were resolved in court orders, signed by Judge David Williams of Patrick County, that did not state the amount of the settlement.
In the Williamson case, LewisGale attorneys later disclosed that the sum was $1 million.
The Supreme Court’s decision in 2008 did more than just require that the financial terms of a settlement be public. Some lawyers say it led to more settlements in distant courthouses, where even if the amount is a public record, it’s a little less so.
“That case changed the landscape,” said Randy Wimbish, a Richmond lawyer and president-elect of the Virginia Association of Defense Attorneys. “And with lawyers being creative and smart, they will try the best they can to accommodate their client’s wishes, within the boundary of the law.”
What happens elsewhere
With hospitals across Virginia involved in thousands of legal actions, it is difficult to determine from court records how many health care systems resolve wrongful death lawsuits in the itinerant manner used in the Roanoke region.
The Virginia Supreme Court denied an open-records request from The Roanoke Times for data that might have shed light on that question.
However, a sample of court records — gleaned from a computer program that searched the Supreme Court’s website of public information — indicates the practice is not common.
The program was created by Ben Schoenfeld, a volunteer with the New River Valley chapter of Code for America, a nonprofit that seeks to use its members’ technical skills to make government services more accessible to the public.
The search produced no indication from online records that four other health care systems — Virginia Commonwealth University Health System in Richmond, Sentara Healthcare in Norfolk, Bon Secours Heath System in Central and Eastern Virginia, and the University of Virginia Health System in Charlottesville — were settling wrongful death cases in outlying courthouses on a regular basis.
Out-of-town settlements represent a “very small minority” of all medical malpractice cases, said Lichtenstein of the trial lawyers association.
And the total number of malpractice cases represents an even smaller minority of the patients who receive health care treatment, many times with positive outcomes.
For example, during the 10 years that Carilion settled 19 wrongful death cases in outlying venues, the health care system had 525,318 admissions to its seven hospitals.
“Each of us is committed to excellent care,” said Nancy Agee, Carilion’s president and CEO.
“We are buoyed by the remarkable care our patients receive and we are heartbroken when there are complications or bad outcomes. We take our responsibility very seriously and are constantly working to provide exceptional care for every patient.”
But what happens when the system fails?
The answer, perhaps, lies in an out-of-town courthouse.