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Fredericksburg jury awards 1.6 Million after 6.5 million dollar award reversed

Posted on Oct 18, 2005

Injured man wins big award Fredericksburg jury says injured Spotsylvania man should be compensated for missed diagnosis Date published: 10/18/2005 By JIM HALL and BILL FREEHLING For the second time, a jury has said that a Spotsylvania County man should be compensated for his doctor's failure to diagnose and treat a severe spinal condition. Craig Allen, 35, received a $1.8 million award from a Fredericksburg Circuit Court jury late Friday night after a four-day trial. The award is the second he has received for the missed diagnosis, which affected his ability to walk. Allen received a $6.5 million jury award in 2003, but the Supreme Court of Virginia overturned a portion of that decision on appeal and returned the case to the lower court for retrial. Last week's jury deliberated about four hours before deciding that Dr. Donna Gamache's failure to diagnose a case of transverse myelitis, or inflammation of the spinal cord, was the cause of Allen's permanent neurological damage. The jury award of $1.8 million will be reduced to $1.55 million, the state's medical malpractice cap at the time of the injury. Even at the reduced amount, the award is one of the largest malpractice payments made in Virginia in recent years. A new State Corporation Commission database of malpractice claims for the years 2002 through 2004 shows only two payments were larger. Both payments were from 2004 cases that included negotiated settlements of $1.65 million. Allen's case against Gamache, a family practitioner, and her Lee's Hill Medical Associates began when he visited her in June 2000. Court records indicate that Allen told her that he was taking the drug Ativan for mild anxiety. She prescribed a different anti-anxiety medicine, BuSpar. One month later, Allen called Gamache's office to complain of muscle aches, numbness and a "pins-and-needles" sensation in his arms and legs. A receptionist advised him to reduce the dosage of BuSpar. The symptoms persisted, and Allen again called Gamache's office. Again, a receptionist told him that he was probably experiencing side effects from the drug. Allen met with Gamache in September 2000. She did not examine him and assured him that his symptoms were probably due to the drug. When Allen's symptoms became worse, his wife took him to the emergency room at Mary Washington Hospital. A neurologist did a physical exam at the hospital and found an abnormality below the neck. An MRI revealed the spinal cord inflammation. Allen was treated with high-dose steroids and transferred to the VCU Medical Center in Richmond. Today Allen walks with a cane. His neurological loss is said to be permanent and will continue to deteriorate. Both juries concluded that his condition could have been arrested had he been diagnosed and treated earlier. Last week, jurors were given estimates of his future medical care and lost wages. Allen is expected to live another 40 years, according to the court file. Career lost wages were calculated at $1.87 million. The cost of his lifetime medical care--which includes therapy, medications and wheelchair equipment for his home--was estimated at between $641,000 and $761,000. Allen is an attorney who was working for the National Science Foundation when he was diagnosed. He is from Ludlow, Mass., according to the court file. Susan L. Mitchell, one of two Manassas attorneys representing Gamache, said she would not comment about the verdict because the case is still pending until Judge John W. Scott Jr. enters a final order. Mitchell said she and attorney Tara M. McCarthy are considering all options, including filing post-trial motions and appealing the case again. They must file an appeal within 30 days of Scott's final order. Malcolm P. McConnell III, Allen's attorney, said yesterday that he offered to settle the case after the Supreme Court decision for an amount that was less than the final jury award. "They refused to even talk to me," McConnell said. Mitchell declined to respond to McConnell's comments, saying it was inappropriate to disclose confidential negotiations. Craig Allen and his wife have two sons, including a middle-schooler who touched off a controversy in Spotsylvania last year when he would not stand for the Pledge of Allegiance.

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