PRESENT: All the Justices
NANCY WHITE SMITH, PERSONAL REPRESENTATIVE
OF THE ESTATE OF SANDS SMITH, JR., DECEASED
v. Record No. 080939 OPINION BY JUSTICE CYNTHIA D. KINSER
APRIL 17, 2009
BYUNGKI KIM, M.D., ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeney, Judge
In this wrongful death action, the sole issue we consider
is whether the circuit court erred in denying a jury instruction
proffered by the plaintiff. Because the instruction is not a
correct statement of the law, as it removes a question of fact
from the jury, we conclude the circuit court did not err in
refusing to give the instruction. Thus, we will affirm the
circuit court's judgment in favor of the defendants.
MATERIAL FACTS AND PROCEEDINGS
Sands Smith, Jr. (Sands), was admitted to a hospital on
February 1, 2004 for stomach pain, vomiting, and constipation.
After a CT scan revealed severe constipation, Sands received
several enemas to alleviate his problem. The next day, a
gastroenterologist evaluated Sands and ordered a colonoscopy.
The doctor also ordered one gallon of GoLYTELY 1 for Sands to
drink and two more enemas, if necessary, in order to prepare
Sands' colon for the procedure.
1
GoLYTELY, also known as "polyethylene glycol," is a
standard bowel preparation for a colonoscopy.
On February 3, 2004, Nader H. Balba, M.D., attempted to
perform the colonoscopy on Sands, but encountered semi-solid
stool that prevented adequate visualization of the colon lining.
Dr. Balba ordered a second colonoscopy for the following day and
another gallon of GoLYTELY for Sands to drink. Sands was able
to consume only one-half of the second gallon of GoLYTELY. He
also had three more enemas.
The next day, Byungki Kim, M.D., performed the second
colonoscopy. Although he did not encounter stool that impeded
visualization of the colon lining, Dr. Kim had to terminate the
procedure because he found "severe diverticulosis and [a] sharp
angulation" in Sands' colon.
During the second colonoscopy, Sands vomited feculent-
smelling material and aspirated some of it into his lungs. His
blood-oxygen level dropped to 82 percent. Sands developed
severe respiratory distress and was placed on a ventilator.
Barry F. Walter, M.D., conducted an emergency surgical
consultation with Sands. Dr. Walter noted Sands' "hugely
distend[ed] abdomen," which he believed was impacting Sands'
ventilation. Because he was also concerned that Sands had a
perforated colon, Dr. Walter performed emergency exploratory
surgery. Although he did not find any colon perforation, Dr.
Walter discovered "a very distended colon and [an] inflammatory
appearing mass." Consequently, Dr. Walter removed a segment of
2
Sands' colon and performed a colostomy. After his emergency
surgery, Sands developed acute respiratory distress syndrome
(ARDS) 2 and aspiration pneumonia. Sands was eventually
discharged from the hospital and spent several weeks in a
rehabilitation center before returning home.
In January 2005, Dr. Walter surgically reversed Sands'
colostomy. After the procedure, Sands developed "a
colocutaneous fistula, or a leak, from the colon out to the
skin." After non-surgical measures failed to resolve the
fistula, Sands had to undergo three additional surgical
procedures to close the fistula.
On May 26, 2005, Sands was again admitted to a hospital for
shortness of breath and a fever. He was diagnosed with
pneumonia, respiratory distress, and sepsis. Two days after he
entered the hospital, Sands died. According to autopsy results,
Sands' cause of death was "ARDS [and] acute ischemia of the
heart."
Nancy White Smith, as the personal representative of Sands'
estate (Smith), filed a wrongful death action against Dr. Kim,
Dr. Balba, and their employer, Gastroenterology Associates of
2
ARDS is a "hylan membrane disease, an inflammatory process
throughout [the] lungs."
3
Northern Virginia, LTD (collectively the Doctors). 3 Among other
things, Smith alleged the Doctors breached the standard of care
by failing to timely diagnose and treat Sands' bowel obstruction
and inappropriately conducting colonoscopies, which caused Sands
to aspirate his stomach contents and/or fecal matter into his
lungs. Smith further alleged the aspiration led to the
development of ARDS and other medical problems, which ultimately
and proximately caused Sands' death.
During the course of a jury trial, Smith presented medical
expert testimony regarding the Doctors' breach of the standard
of care and the proximate cause of Sands' death. 4 Louis
Lambaise, M.D., an expert in the field of gastroenterology,
testified that Dr. Balba breached the standard of care when he
ordered a second gallon of GoLYTELY, as he should have suspected
an abdominal obstruction because the enemas and the first gallon
of GoLYTELY were not effective. Dr. Lambaise opined that Dr.
Kim breached the standard of care because "a colonoscopy was
performed despite evidence of abdominal distension and a risk of
aspiration." Dr. Lambaise testified that the cause of Sands'
3
Smith also named Mitchell Tobias, M.D., who was the
anesthesiologist who participated in the second colonoscopy, and
his employer, Fairfax Anesthesiology Associates, Inc., as
defendants but later nonsuited them.
4
The Doctors likewise presented expert medical testimony,
but it is not necessary to summarize that evidence in order to
resolve the issue before us.
4
aspiration was the large amount of GoLYTELY he had ingested
along with the pressure applied to his stomach area by a nurse. 5
Finally, Dr. Lambaise opined that if the Doctors had done
certain things to comply with the standard of care, Sands would
not have aspirated and he would not have been taken to emergency
surgery in the condition in which Dr. Walter found him.
An expert in the field of critical care and pulmonary
medicine, Stuart Jacobs, M.D., testified that the first episode
of ARDS left Sands with "significant, long-term damage" to his
lungs. Dr. Jacobs explained that "ARDS is a very severe lung
injury, and . . . survival of it is often 50 percent or less."
Continuing, Dr. Jacobs opined that Sands' long-term lung damage
from his first case of ARDS proximately contributed to his
death. Dr. Jacobs further opined that, if Sands had not
aspirated during the second colonoscopy, he likely would not
have developed the first episode of ARDS. Finally, Dr. Jacobs
opined that Sands' chances of surviving the second episode of
ARDS were "essentially none" because his lung function, at that
point, was half of what it should have been due to the
aspiration and first episode of ARDS.
5
Dr. Tobias, testifying on behalf of Smith, stated that at
the time Sands vomited the feculent-smelling material, "there
were four clenched fists pushing on [Sands'] abdomen."
5
After Smith and the Doctors concluded their presentation of
evidence, Smith requested the circuit court to give, among
others, Instruction No. 18 to the jury:
If you believe from the evidence that Mr. Sands Smith
Jr., exercised ordinary care in selecting physicians
for treatment of the injuries he sustained as a result
of the colonoscopy performed on 02/04/04 and you
further believe that Mr. Sands Smith Jr., sustained
additional injuries, including death, as a result of
such medical treatment, whether performed negligently
or not, then you are instructed that the law considers
the additional injuries, including death to be an
aggravation that naturally flows from the original
injuries, and the Plaintiff may recover for such
aggravation from the person legally responsible for
causing the original injuries.
The circuit court refused to give the instruction. 6
The jury returned a verdict in favor of the Doctors. Smith
filed a motion to set aside the verdict and grant a new trial
6
Smith also requested the circuit court to give Instruction
No. 15. In their respective briefs, the parties quote an
Instruction No. 15, but the quoted instruction is different than
an instruction numbered 15 contained in the record from the
circuit court. Since the instruction quoted in the parties'
briefs is not a part of the record in this case, we will not
consider it or Smith's arguments that the circuit court erred by
refusing to give that particular instruction to the jury. See
Prince Seating Corp. v. Rabideau, 275 Va. 468, 470, 659 S.E.2d
305, 307 (2008) ("We cannot review the ruling of a lower court
for error when the appellant does not . . . provide us with a
record that adequately demonstrates that the court erred.");
Pettus v. Gottfried, 269 Va. 69, 81, 606 S.E.2d 819, 827 (2005)
(noting an appellant "is charged with the responsibility of
presenting an adequate record from which the appellate court can
determine the merits of [the] argument"); Justis v. Young, 202
Va. 631, 632-33, 119 S.E.2d 255, 257 (1961) (reiterating that we
consider a case based on the record sent to us from the lower
court).
6
based, in part, on the circuit court's failure to give
Instruction No. 18. The circuit court denied Smith's motion and
entered final judgment in favor of the Doctors.
Smith appeals from the circuit court's judgment, arguing
the court erred by refusing to give Instruction No. 18.
ANALYSIS
"A litigant is entitled to jury instructions supporting his
or her theory of the case if sufficient evidence is introduced
to support that theory and if the instructions correctly state
the law." Schlimmer v. Poverty Hunt Club, 268 Va. 74, 78, 597
S.E.2d 43, 45 (2004); accord Holmes v. Levine, 273 Va. 150, 159,
639 S.E.2d 235, 239 (2007); Monahan v. Obici Med. Mgmt. Servs.,
Inc., 271 Va. 621, 636, 628 S.E.2d 330, 339 (2006); Honsinger v.
Egan, 266 Va. 269, 274, 585 S.E.2d 597, 600 (2003). "When we
review the content of jury instructions, our 'sole
responsibility . . . is to see that the law has been clearly
stated.'" Hancock-Underwood v. Knight, 277 Va. 127, 131, 670
S.E.2d 720, 722 (2009) (citations omitted). Determining whether
a proffered jury instruction accurately states relevant legal
principles is a question of law reviewed de novo on appeal. Id.
Smith contends she advanced at trial the theory that the
Doctors were negligent in their treatment and care of Sands,
causing him to have a weakened lung condition that was
aggravated by subsequent, negligent medical treatment.
7
According to Smith, proffered Instruction No. 18 correctly
stated the law regarding aggravation of an original injury. In
that regard, "[t]he general rule is that if an injured person
uses ordinary care in selecting a physician for treatment of his
injury, the law regards the aggravation of the injury resulting
from the negligent act of the physician as a part of the
immediate and direct damages which naturally flow from the
original injury." Corbett v. Clarke, 187 Va. 222, 224-25, 46
S.E.2d 327, 328 (1948); accord Washington v. Williams, 215 Va.
353, 357, 210 S.E.2d 154, 157 (1974); Powell v. Troland, 212 Va.
205, 212, 183 S.E.2d 184, 188 (1971); Fauver v. Bell, 192 Va.
518, 522, 65 S.E.2d 575, 578 (1951). The rationale underlying
this rule is "that the aggravation of [an] injury by the
negligent treatment of [a] physician is a result that might
reasonably have been anticipated" by the original tortfeasor.
Corbett, 187 Va. at 225, 46 S.E.2d at 328; accord Powell, 212
Va. at 212, 183 S.E.2d at 188.
In Powell, the plaintiff had been involved in an automobile
accident and underwent surgery for an injury sustained in the
accident. 212 Va. at 206, 183 S.E.2d at 185. The plaintiff
claimed the surgeon was negligent in the performance of the
operation, and as a result of that negligence, the plaintiff had
to immediately undergo additional surgery to remove a small
hemorrhage resting on the spinal cord. Id. The pressure of the
8
hemorrhage on the spinal cord caused the plaintiff to sustain
some permanent physical impairment. Id. at 206-07, 183 S.E.2d
at 185.
The issue in Powell was whether the plaintiff, who had
received a monetary judgment against the original tortfeasor in
an action where issues concerning the original injury and the
physician's alleged negligent aggravation of that injury were
submitted to the jury, could nevertheless maintain an action
against the physician. Id. at 209, 183 S.E.2d at 186-87. In
concluding that the action against the physician was barred by
the plaintiff's judgment against the original tortfeasor, we
agreed with the circuit court's holding that there was no
"separability" of the physician's negligence from the negligence
of the original tortfeasor. 7 Id. at 212, 183 S.E.2d at 189. In
other words, the injury caused by the original tortfeasor's
negligence was aggravated by the subsequent treating physician's
negligence.
In Corbett, the plaintiff had a tooth extracted, but the
dentist left the root in the gum and refused to provide further
7
After this Court's decision in Powell, the General
Assembly enacted Code § 8-368, the predecessor to current Code
§ 8.01-443. The current version of the statute provides that
when a plaintiff obtains a judgment against one of several
alleged joint tortfeasors and the judgment is satisfied, the
other joint tortfeasors are discharged, except with respect to
any possible contribution claim by the paying tortfeasor against
the other joint tortfeasors.
9
treatment. 187 Va. at 226, 46 S.E.2d at 329. A second dentist
removed the root from the gum but also extracted a second tooth
and sewed up a foreign object in the socket. Id. In an action
against the second dentist, the trial court sustained the
dentist's plea of release based on the plaintiff's settlement of
her claim against the first dentist and execution of a release
for the injuries the first dentist inflicted. Id. at 224, 46
S.E.2d at 327-28. We reversed, holding that whether the
injuries caused by the two dentists were separate and distinct,
or inseparable, was a matter of proof. 8 Id. at 230, 46 S.E.2d at
330-31. In doing so, we recognized that if subsequent negligent
acts could not be reasonably anticipated, there are two separate
and distinct torts, not a mere aggravation of the original
injury. To hold otherwise "would strain the usual and normal
concept of 'proximate cause' to the breaking point." Id. at
226, 46 S.E.2d at 329.
One important principle, among several, can be gleaned
from the decisions in Powell and Corbett: "Whether the
8
Both the current and prior versions of Code § 8.01-35.1
contain express provisions on the effect of a plaintiff's
execution of a release or covenant not to sue as to one of
multiple alleged tortfeasors. Factual issues may arise under
the statute as to whether the same injury or property damage is
covered in a prior settlement. See Accordia of Virginia Ins.
Agency v. Genito Glenn, L.P., 263 Va. 377, 388-90, 560 S.E.2d
246, 252-53 (2002); Tazewell Oil Co. v. United Virginia Bank,
243 Va. 94, 115, 413 S.E.2d 611, 622-23 (1992).
10
physician's negligent acts cause a mere aggravation of the
original injury or cause instead a separate and distinct
injury should, as a general rule, be left to the
determination of a jury, guided by ordinary principles of
proximate cause." Washington, 215 Va. at 357, 210 S.E.2d
at 158. Smith's proffered Instruction No. 18 violates this
principle. The instruction directs a jury that "the law
considers the additional injuries, including death to be an
aggravation that naturally flows from the original
injuries[.]" The proffered instruction withdraws from the
jury an important question of fact – whether the additional
injuries sustained as a result of subsequent medical
treatment are indeed an aggravation of the original
injuries, as opposed to separate and distinct injuries.
Thus, proffered Instruction No. 18 is not a correct
statement of law. 9 See id.; Bear v. Bear, 131 Va. 447, 454,
109 S.E. 313, 315 (1921) (holding a jury instruction was
plainly wrong because it "took away from the jury the
consideration and determination of an important question of
fact upon which different conclusions might have been
reached by reasonable men upon the evidence adduced").
9
Contrary to Smith's assertion, Instruction No. 18 does not
follow Restatement (Second) of Torts, § 457 (1965). Thus, we
express no opinion on whether the Restatement section is in
accord with the law of the Commonwealth.
11
CONCLUSION
Since proffered Instruction No. 18 is not a correct
statement of law, the circuit court did not err by refusing to
grant it. 10 Thus, we will affirm the circuit court's judgment.
Affirmed.
10
In light of our holding, it is not necessary to decide
whether Smith presented sufficient evidence to warrant a jury
instruction on her theory of the case.
12