Williams v. Le

Present: All the Justices

TAMEIKA WILLIAMS, ADMINISTRATOR
AND PERSONAL REPRESENTATIVE OF
THE ESTATE OF TAWANDA WILLIAMS, DECEASED

v. Record No. 071409 OPINION BY JUSTICE DONALD W. LEMONS
June 6, 2008
CONG LE, M.D.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge

In this appeal, we consider whether the trial court erred

in instructing the jury on superseding intervening causation

in a medical malpractice case.

I. Facts and Proceedings Below

On May 26, 2005, Tawanda Williams (“Williams”) saw Dr.

Daniel G. Kaw ("Dr. Kaw"), a physician at the Fair Oaks Kaiser

Permanente Center in Fairfax, for pain in her right calf and

leg. Dr. Kaw ordered a Doppler ultrasound to be performed on

Williams' calf within the Kaiser system in mid-June. Williams

scheduled a follow-up appointment for "June 6 or PRN" ("as

needed").

On June 1, 2005, Williams returned to the Fair Oaks

Kaiser Permanente Center to see Dr. Paul McClain ("Dr.

McClain"), her primary care physician. Williams complained of

ankle pain and discomfort in her calf. Williams told Dr.

McClain that she had "misstepped a few weeks earlier." Dr.

McClain thought Williams had a possible tear in the back of
her calf muscle. Dr. McClain ordered an ankle x-ray for June

1, 2005, and rescheduled the Doppler ultrasound of her calf to

be performed within 48 hours.

Williams went to Tysons Corner Diagnostic Imaging for a

Doppler ultrasound appointment on June 2, 2005. Megan Murphy

("Murphy"), a sonogram technician, performed the Doppler

ultrasound on Williams. Murphy called Dr. Cong Van Le ("Dr.

Le"), a diagnostic radiologist who was working at Vienna

Diagnostic Imaging, 1 and sent him the image of Williams' right

lower leg by electronic mail. Murphy believed that the images

showed that Williams had a deep vein thrombosis in her right

lower leg. Murphy told Dr. Le that she had informed Williams

that there was a "positive finding," and that she should see

her doctor as soon as possible.

Upon reviewing the images of Williams' leg, Dr. Le

diagnosed Williams with deep vein thrombosis in her right leg. 2

The presence of deep vein thrombosis put Williams at risk for

pulmonary embolism, a life-threatening condition in which

pieces of a deep vein clot break off and slip out of the

vasculature of the legs and travel into the lungs.

1
Tysons Corner Diagnostic Imaging and Vienna Diagnostic
Imaging are separate facilities that are part of the same
corporation, Diagnostic Imaging Associates.
2
Specifically, Dr. Le diagnosed Williams with two deep
vein blood clots in the popliteal vein and the posterior
tibial vein, and one blood clot in a superficial vein, the
lesser saphenous vein.

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 Dr. Le telephoned Dr. McClain's office to tell Dr.

McClain the diagnosis of Williams' condition. Dr. Le reached

an automatic telephone system, followed the instructions, and

then reached an operator. He told the operator who he was,

that he was a radiologist, and asked to speak to Dr. McClain.

The operator told Dr. Le she would have to locate Dr. McClain,

and then she put Dr. Le “on hold.” Dr. Le was “on hold” long

enough that he "lost [his] confidence to get in touch with

[Dr. McClain] at that moment." He stated that he was unable

to leave a voicemail or talk to a human being. Dr. Le

testified that previously he had problems communicating with

the doctors at Kaiser by telephone. Dr. Le prepared a "wet

read" (an emergency read) with his findings and drew a picture

of Williams' lower extremity showing the location of the blood

clots. He placed the wet read in a "wet read box" to be sent

immediately by facsimile to Dr. McClain.

After the Doppler ultrasound was performed, Williams

telephoned Dr. McClain on June 2. She left a message for Dr.

McClain advising him that she had been told by Murphy to call

him. Dr. McClain did not personally receive Williams'

message.

At 10:43 p.m. on June 2, 2005, Dr. McClain sent the

following electronic mail message regarding Williams to his

clinical assistant, Lynne Stidman ("Stidman"): "Lynne - Would

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you get the results of the Doppler study of the leg from Tyson

Corner Diagnostic Imaging Center. . . . Please place the

result in a Pace note and message me. Thanks. Dr. McClain."

"PACE" is Kaiser's electronic system for patient medical

records and internal non-urgent messages. On the morning of

June 3, 2005, Stidman called the imaging center and had the

results of the Doppler study sent to her by facsimile.

Stidman received the report and entered it into the PACE

system. At 10:24 a.m. on June 3, 2005, Stidman sent the

following message to Dr. McClain: "Patient's Doppler results

are in the computer." Dr. McClain did not read Stidman's

message until June 15, 2005, after Williams died.

Dr. McClain had an appointment scheduled with Williams on

June 6, which Williams did not attend. Williams died on June

8, 2005, from a pulmonary embolism. Dr. McClain did not look

at the results of the Doppler ultrasound of Williams' leg

until February of 2006. Dr. McClain testified that normally,

if there was a positive finding from a Doppler ultrasound, he

would be notified by the radiologist with “direct contact,”

which was “[g]enerally voice-to-voice contact.” Dr. McClain

testified that had he received direct contact, he would have

immediately started Williams on anticoagulant therapy. The

plaintiff's expert testified that “anticoagulation would have

prevented [Williams] from developing a pulmonary embolism,”

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and that if the anticoagulant therapy had been started anytime

before the morning of June 7, 2005, the treatment would likely

have prevented Williams' death.

Tameika Williams ("Tameika"), as administrator and

personal representative of the estate of Williams, filed a

complaint against Kaiser Foundation Health Plan of the Mid-

Atlantic States, Inc., Mid-Atlantic Permanente Medical Group,

P.C., Tyson's Corner Diagnostic Imaging, Inc., Vienna

Diagnostic Imaging, Inc., and Dr. Le, alleging negligence in a

wrongful death action. Tameika nonsuited her claims against

Tysons Corner Diagnostic Imaging, Inc. and Vienna Diagnostic

Imaging, Inc. Tameika settled her claims against Kaiser

Foundation Health Plan of the Mid-Atlantic States, Inc. and

Mid-Atlantic Permanente Medical Group, P.C. The case

proceeded to trial solely against Dr. Le.

At trial, Tameika presented expert testimony that the

standard of care requires that a radiologist who diagnoses a

patient with deep vein thrombosis make “direct communication

with the physician who ordered the study or with one of their

physicians who was covering or a nurse or the patient

directly,” so that the treating physician can “institute

prompt treatment.” At the conclusion of the evidence, over

Tameika’s objection, the trial judge gave the following

instruction on superseding intervening causation:

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 A superseding cause is an independent event, not
reasonably foreseeable, that completely breaks
the connection between the Defendant's negligent
act and the alleged injury or death. A
superseding cause breaks the chain of events so
that the Defendant's original negligent act is
not a proximate cause of the Plaintiff's injury
in the slightest degree.

On March 21, 2007, the jury returned a verdict for Dr.

Le. The trial court entered a final order confirming the

jury's verdict in favor of Dr. Le. Tameika appeals from the

final order on one assignment of error: "In this medical

malpractice case the trial court erred in instructing the jury

on superseding intervening cause (Instruction N)."

II. Analysis

“When asked to review jury instructions given by a trial

court, ‘our responsibility is to see that the law has been

clearly stated and that the instructions cover all issues which

the evidence fairly raises.’ ” Monahan v. Obici Med. Mgmt.

Servs., 271 Va. 621, 636, 628 S.E.2d 330, 339 (2006) (quoting

Lombard v. Rohrbaugh, 262 Va. 484, 498, 551 S.E.2d 349, 356

(2001)). “[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. The evidence introduced in support of

a requested instruction must amount to more than a scintilla.”

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Holmes v. Levine, 273 Va. 150, 159, 639 S.E.2d 235, 239 (2007)

(citations omitted).

Dr. Le argued two separate theories at trial to avoid

liability. First, he argued that he was not liable because the

standard of care did not require him to make direct contact

with Dr. McClain, a member of Dr. McClain’s team, or the

patient herself. In furtherance of this theory, Dr. Le’s

expert testified that communication directly with a physician

when reporting non-routine ultrasound results was not required,

and that sending test results by facsimile was within the

standard of care. Second, Dr. Le argued that even if he was

negligent for not making direct contact with Dr. McClain, a

member of Dr. McClain’s team, or Williams, his negligence was

not a proximate cause of Williams’ death because Dr. McClain’s

subsequent negligence in failing to check the diagnostic report

completely broke the chain of events between Dr. Le’s

negligence and Williams’ death.

“The proximate cause of an event is that act or omission

which, in natural and continuous sequence, unbroken by an

efficient intervening cause, produces the event, and without

which that event would not have occurred." Beverly

Enterprises-Virginia v. Nichols, 247 Va. 264, 269, 441 S.E.2d

1, 4 (quoting Coleman v. Blankenship Oil Corp., 221 Va. 124,

131, 267 S.E.2d 143, 147 (1980)). There may be more than one

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proximate cause of an event. Panousos v. Allen, 245 Va. 60,

65, 425 S.E.2d 496, 499 (1993). A subsequent proximate cause

may or may not relieve a defendant of liability for his

negligence. “In order to relieve a defendant of liability for

his negligent act, the negligence intervening between the

defendant’s negligent act and the injury must so entirely

supersede the operation of the defendant’s negligence that it

alone, without any contributing negligence by the defendant in

the slightest degree, causes the injury.” Atkinson v. Scheer,

256 Va. 448, 454, 508 S.E.2d 68, 71 (1998) (quoting Jenkins v.

Payne, 251 Va. 122, 128-29, 465 S.E.2d 795, 799 (1996)).

An instruction may be given if the evidence is sufficient

to support the theory of the instruction. Accordingly, in this

case, such an instruction would be properly given only if

reasonable persons could conclude from the evidence and

reasonable inferences therefrom that Dr. McClain’s later

negligence alone, “without any contributing negligence by [Dr.

Le] in the slightest degree, caused [Williams’] death.”

Atkinson, 256 Va. at 454, 508 S.E.2d at 72; Panousos, 245 Va.

at 65-66, 425 S.E.2d at 499.

On the question of causation, the evidence proved without

contradiction that the communication problems in this case were

begun and put in motion by Dr. Le’s failure to make direct

contact with Dr. McClain, a member of his team, or Williams.

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“[A]n intervening cause does not operate to exempt a defendant

from liability if that cause is put into operation by the

defendant’s wrongful act or omission.” Jefferson Hosp., Inc.

v. Van Lear, 186 Va. 74, 81, 41 S.E.2d 441, 444 (1947). On

this record, it cannot be said that Dr. Le’s alleged negligence

was not contributing “in the slightest degree” to the death of

Williams. The trial court therefore erred in granting the

superseding intervening causation instruction. “[W]here . . .

an instruction [has] been erroneously submitted to the jury and

the record does not reflect whether such . . . instruction

formed the basis of the jury’s verdict, we must presume that

the jury relied on such . . . instruction in making its

decision.” Monahan, 271 Va. at 635, 628 S.E.2d at 338 (quoting

Johnson v. Raviotta, 264 Va. 27, 39, 563 S.E.2d 727, 735

(2002)).

III. Conclusion

For the reasons stated, the judgment of the trial court

will be reversed and the case remanded for a new trial.

Reversed and remanded.

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