A typical tactic used by Virginia medical malpractice insurance companies to defend claims ateries are mistakenly clamped or sutured or cut in surgery is to say "well, the anatomy was abnormal," and that's why it happened.

The Virgnia Supreme Court recently held that a trial court was wrong in dismissing a case where there was conflicting evidence that there was abnormal anatomy.

Clifford Lewis Fanucci, Sr., died after undergoing hand-assisted laparoscopic surgery for a cancerous growth on his kidney. Daniel Mark Hoffman, M.D. clamped the right renal artery instead of the left renal artery during surgery. When he discovered his error, he unclamped the artery but it tore, killing his patient.

There was conflicting evidence at trial about whether Fanucci's anatomy was unusual. Doctors who came in to repair the torn right renal artery that they found nothing abnormal. The pathologist who did the autopsy said he found nothing unusual about the position of the right renal artery, either.

The only doctors to testify that there was anything 'unusual' about the right renal artery were the defendant and his partner!

The Supreme Court reversed the decision of the trial court and ordered a new trial.

Comment from Virginia Medical Malpractice Attorney Ben Glass: the actions of the trial judge are frightening and demonstrate just how difficult a jurisdiction Virginia is for medical malpractice cases. As I read the opinion, there was basically guess-work on the part of the defendant and his partner as to how or why he managed to clamp the wrong artery. There was no real 'evidence' on this issue. In fact, the only real 'evidence' from two indepedent doctors who actually saw the right renal artery was that the anatomy was normal. To me this case is not even close and there is no way the judge should have stopped the jury from making the decision.

This was enourmously expensive for both parties. Even if the judge felt the case should not have been decided by the jury he should have allowed them to decide it later. Then, he could have reversed the jury's decision, but at least the Supreme Court could have reinstated the jury's verdict.

The judge was wrong.. now the parties wait at least another year, spend another $$75,000 or so to retry the case.

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