PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Stephenson, S.J.
TAMELA H. WEBB
OPINION BY
v. Record No. 071008 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
June 6, 2008
CHARLES WILLIAM SMITH, III, M.D.
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Pamela S. Baskervill, Judge
In this appeal, we determine whether, under the special
facts and circumstances of this medical malpractice action, the
plaintiff was required to present expert testimony on the issue
of causation.
I
Tamela H. Webb filed an action against Charles William
Smith, III, M.D., alleging medical malpractice by Dr. Smith for
negligently performing surgery on her, which caused Webb to
undergo a subsequent surgery and incur damages attendant
thereto. At the conclusion of Webb's case-in-chief and at the
conclusion of all the evidence, Dr. Smith moved the court to
strike Webb's evidence on the ground that Webb had not presented
expert testimony on the issue of causation. The trial court
took the motions under advisement and submitted the case to the
jury.
The jury returned its verdict in favor of Webb in the
amount of $75,000, with interest on $25,520.06 from August 30,
2004, until paid. Following the verdict, the trial court
considered Dr. Smith's motion to strike Webb's evidence. Upon
the parties' post-trial briefs, the court sustained Dr. Smith's
motion and entered judgment in his favor. We awarded Webb this
appeal.
II
For years, Webb had suffered pain associated with her
menstrual cycle. She had been advised by her long-time
physician that she "might need" to undergo a bilateral salpingo
oophorectomy (BSO). Webb decided to undergo the BSO together
with a hysterectomy, and she went to Dr. Smith for the surgery.
Dr. Smith agreed to perform both procedures in a single surgery.
Dr. Smith performed the hysterectomy, but he forgot to perform
the BSO.
At trial, Webb presented an expert witness who testified
about the relevant standard of care for a doctor engaged in Dr.
Smith's field of practice. The expert witness also testified
that Dr. Smith had breached the standard of care by agreeing and
obtaining consent to perform the two procedures in one surgery,
but failing to do so. The expert witness did not offer any
testimony regarding causation.
Webb testified that, due to Dr. Smith's negligence in
performing only one procedure, she had to undergo a second
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surgery and endure a second round of trauma, associated pain and
suffering, and mental anguish.
III
Webb contends that the verdict was improperly set aside
because the present case presents one of the rare instances in
which expert testimony was not necessary or appropriate. Webb
asserts that "[n]o specialized training was necessary for a
juror to understand that when [Dr.] Smith neglected to perform
the surgery he had agreed to perform, [she] would necessarily
have to find another physician to finish what [Dr.] Smith had
started, but failed to finish." Webb testified that Dr. Smith
told her he had forgotten to perform the second procedure. Webb
asserts that, as with forgetting to remove a sponge or scalpel
from a patient's body during surgery, her damages for Dr.
Smith's forgetting to perform the second procedure "are evident
to any normal person" and are the direct and proximate result of
Dr. Smith's negligence. Therefore, Webb concludes, the jury did
not need expert testimony to find, as it did, that she desired
to have her ovaries removed, that Dr. Smith agreed to perform
the procedure together with a hysterectomy, that Dr. Smith
negligently failed to perform the procedure, and that Dr.
Smith's negligence was the proximate cause of her having to
undergo a second surgery.
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Dr. Smith contends that Webb, because she brought a tort
action for medical malpractice and not a breach-of-contract
action, was required to establish the necessary elements of a
medical malpractice action, which she failed to do. Dr. Smith
observes that, in medical malpractice actions, expert testimony
is ordinarily required to establish the necessary elements,
including causation, and he contends that the present case is no
exception.
IV
We have said that, in medical malpractice cases, "expert
testimony is ordinarily necessary to establish the appropriate
standard of care, to establish a deviation from the standard,
and to establish that such a deviation was the proximate cause
of the claimed damages." Raines v. Lutz, 231 Va. 110, 113, 341
S.E.2d 194, 196 (1986); accord Bly v. Rhoads, 216 Va. 645, 653,
222 S.E.2d 783, 789 (1976). Exceptions to this rule exist only
in "those rare cases in which a health care provider's act or
omission is clearly negligent within the common knowledge of
laymen." Raines, 231 Va. at 113, n.2, 341 S.E.2d at 196, n.2;
see, e.g., Coston v. Bio-Medical Applications of Va., Inc., 275
Va. 1, 5, 654 S.E.2d 560, 562 (2008) (plaintiff placed in
defective chair by health care provider); Easterling v. Walton,
208 Va. 214, 218, 156 S.E.2d 787, 790-91 (1967) (foreign object
left in patient's body by surgeon).
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We conclude that the present case presents one of those
"rare cases" in which expert testimony is not necessary to
establish that Dr. Smith's deviation from the standard of care
was the proximate cause of Webb's damages. As a result of Dr.
Smith's failure to perform the BSO, Webb had to undergo the
second surgery and incur damages attendant thereto. A
reasonably intelligent juror did not need an expert to explain
why Dr. Smith's negligence was the proximate cause of Webb's
damages because the issue of causation was within the common
knowledge of laymen.
IV
Accordingly, we will reverse the trial court's judgment,
reinstate the jury's verdict, and enter judgment in favor of
Webb.
Reversed and final judgment.
JUSTICE KINSER, with whom JUSTICE AGEE joins, dissenting.
The majority concludes that “[a]s a result of Dr. Smith’s
failure to perform the [bilateral salpingo oophorectomy (BSO)],
Webb had to undergo the second surgery and incur damages
attendant thereto.” Only testimony from a medical expert could
have established that Webb “had” to undergo the second surgery.
Therefore, I respectfully disagree with the majority opinion and
conclude that the trial court did not err in setting aside the
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jury verdict in favor of Webb because she failed to present
medical expert testimony on the issue of proximate causation.
“In order to recover for medical negligence, the plaintiff
ordinarily must prove through the use of expert testimony the
applicable standard of care, a deviation from that standard,
proximate causation, and damages.” Rogers v. Marrow, 243 Va.
162, 167, 413 S.E.2d 344, 346 (1992) (emphasis added) (citing
Raines v. Lutz, 231 Va. 110, 115, 341 S.E.2d 194, 197 (1986)).
As the trial court recognized, the issue was whether Webb
presented sufficient evidence to establish that Dr. Smith’s
breach of the standard of care proximately caused Webb’s claimed
damages. In holding that Webb did not present sufficient
evidence of causation, the trial court concluded “that the need
for a subsequent surgery is not within common knowledge of
laymen and . . . that expert testimony is required to show
causation.” (Emphasis added.)
Before this Court, Webb casts her argument in terms
suggesting that the two medical procedures she consented for Dr.
Smith to perform were “elective.” Her testimony, however, was
stated in terms of necessity. Specifically, Webb testified, “I
needed my ovaries and tubes out because they should have come
out to begin with.” However, Dr. Smith, in uncontradicted
testimony, stated that, during the first surgery, he inspected
Webb’s “tubes and ovaries” and found them “to be normal with no
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visible pathology, nothing to suggest that there was anything in
the slightest wrong with them, nothing that would indicate that
they ought to come out or that she would benefit from such.”
When asked if there was “any medical need” to remove Webb’s
“ovaries and tubes” during the first surgery, Dr. Smith
responded, “No.”
Dr. John R. Partridge, who testified as a medical expert on
behalf of Dr. Smith, agreed that Dr. Smith’s decision to not
remove Webb’s “tubes and ovaries” during the initial surgery was
appropriate since “[t]he ovaries looked normal [and] there was
really no reason to take them out.” Dr. Partridge opined that
apart from elective plastic surgery, it is not within the
standard of care to perform a medical procedure that is not
needed. Webb’s medical expert witness, Dr. Ezell S. Autry, did
not disagree with that opinion. Although Dr. Autry testified
“that the standard of care was violated in respect that the
patient had signed a permit for a procedure of vaginal
hysterectomy, bilateral salpingo-oophorectomy and physician Dr.
Smith did not do that,” he nonetheless acknowledged that, even
though a patient consents to a BSO as part of a total
hysterectomy, it would be appropriate for the surgeon to not
perform that procedure if the surgeon decided it was
unnecessary.
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The majority, nevertheless, reasons that the necessity of
the second surgery was within the common knowledge of lay
persons. I disagree. Only a medical expert witness could
testify as to whether Webb needed to have the BSO during the
first surgery and, whether as a result of Dr. Smith’s failure to
perform the BSO, it remained medically necessary for her to
undergo that procedure, thereby requiring the second surgery.
Cf. Combs v. Norfolk & W. Ry. Co., 256 Va. 490, 496-97, 507
S.E.2d 355, 358-59 (1998) (holding that only a medical doctor is
qualified to state an expert medical opinion regarding the
causation of an injury to the human body). Without such
testimony, Webb could not establish that Dr. Smith’s negligence
in failing to perform the BSO during the first surgery was a
proximate cause of the damages she claimed as a result of
undergoing the second surgery.
The majority fails to recognize the distinction that the
trial court correctly pointed out in its letter opinion, “[t]his
cause of action is one for medical malpractice based on
negligence, not breach of contract. Yet, the thrust of
plaintiff’s evidence and arguments supports a theory of failed
expectations.” See Filak v. George, 267 Va. 612, 618, 594
S.E.2d 610, 613 (2004) (“[L]osses suffered as a result of the
breach of a duty assumed only by agreement, rather than a duty
imposed by law, remain the sole province of the law of
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contracts.” (citing Sensenbrenner v. Rust, Orling & Neale,
Architects, Inc., 236 Va. 419, 425, 374 S.E.2d 55, 58 (1988))).
Indeed, the testimony from Dr. Autry, Webb’s only medical
expert witness, supports the trial court’s conclusion. As
already noted, Dr. Autry based his opinion that Dr. Smith
breached the standard of care solely on the basis that Dr.
Smith, during the first surgery, did not perform a procedure
that he had agreed to perform and that Webb had agreed to
undergo by virtue of the consent form she signed. Yet, the
majority concludes that Webb “had” to undergo the second surgery
because Dr. Smith failed to perform the BSO during the first
surgery. Whether Smith “had” to undergo the second surgery is a
question of medical necessity requiring expert testimony from a
physician.
For these reasons, I conclude that this is not one of those
“rare cases” in which a plaintiff can prevail without medical
expert testimony to establish the requisite element of proximate
causation. Therefore, I respectfully dissent and would affirm
the judgment of the trial court.
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