Present: All the Justices
LISA COSTON
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
v. Record No. 062449 January 11, 2008
BIO-MEDICAL APPLICATIONS OF VIRGINIA, INC.,
d/b/a TIDEWATER RENAL DIALYSIS CENTER
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Norman A. Thomas, Judge
I.
In this appeal of a judgment in favor of a defendant in a
medical negligence case, we consider whether the plaintiff was
required to present expert testimony to establish that the
defendant health care provider breached the applicable
standards of care by placing the plaintiff in a defective
chair.
II.
Plaintiff, Lisa M. Coston, filed her motion for judgment
against Bio-Medical Applications of Virginia, Inc. Coston
alleged that on April 8, 2002, she received dialysis treatment
from a facility that the defendant operated called the
Tidewater Renal Dialysis Center in Norfolk.
Plaintiff further alleged that while she was receiving
her dialysis treatment, she was injured when a chair in which
she was seated "failed[,] causing her to fall and strike the
ground." Continuing, plaintiff alleged that despite the
chair's defective condition, the defendant's employees placed
her back in the chair, "which failed again[,] causing her to
strike the ground a second time."
Plaintiff also alleged in her motion for judgment that
the defendant health care provider breached the applicable
standard of care owed to her as a result of the defendant's
"false, misleading, reckless, negligent, careless and wrongful
conduct, including acts of commission and omission, all of
which fell below a reasonable standard of care for health care
providers in their specialty practicing in Virginia as herein
enumerated, [plaintiff] has been severely and permanently
injured . . . ." In its grounds of defense, the defendant
denied that it breached any duty owed to the plaintiff.
The circuit court entered a pretrial order that required
the plaintiff to identify her expert witnesses on or before
June 9, 2005. Plaintiff failed to identify any expert witness
who would testify about the applicable standards of care owed
by the defendant to the plaintiff and deviations from those
standards. Subsequently, the defendant filed a motion for
summary judgment and asserted that the plaintiff could not
establish a prima facie case of medical negligence because she
failed to identify any expert witnesses who would testify
about the applicable standards of care.
During the hearing on the motion for summary judgment,
the plaintiff requested, and was granted, a voluntary nonsuit
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after the case had been submitted to the circuit court for
decision. This Court granted the defendant's appeal, and we
held that the circuit court erred in granting the plaintiff's
motion for a nonsuit because the case had been submitted to
the court for decision. This Court reversed the judgment of
the circuit court and remanded the case so that the circuit
court could rule on the defendant's motion for summary
judgment. Bio-Medical Applications of Virginia, Inc. v.
Coston, 272 Va. 489, 495, 634 S.E.2d 349, 352 (2006).
Upon remand, the circuit court held that the plaintiff
was required to present expert testimony to establish the
applicable standards of care and any deviations therefrom, and
the court entered summary judgment on behalf of the defendant
because the plaintiff had not identified an expert witness who
would render such testimony. The plaintiff appeals.
III.
The plaintiff argues that the circuit court erred in
granting the defendant's motion for summary judgment. The
plaintiff contends that she was not required to establish the
applicable standards of care and deviations therefrom with
expert testimony because the issue whether the defendant was
negligent by placing the plaintiff in a defective chair falls
within the common knowledge and experience of a jury.
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Responding, the defendant asserts that plaintiff may not
challenge the circuit court's ruling that her failure to
designate an expert witness on the standards of care required
the dismissal of her medical negligence action because she
failed to assign cross-error to that ruling in the first
appeal to this Court. Continuing, the defendant argues that
even if the plaintiff may assert her assignment of error in
this appeal, she was required to produce expert testimony to
establish the applicable standards of care and any deviations
from those standards. We disagree with the defendant's
arguments.
Contrary to the defendant's assertions, the plaintiff
could not have assigned as cross-error in the first appeal the
circuit court's ruling that is the subject of the present
appeal. As we have already noted, in the first appeal the
sole issue before this Court was whether the circuit court
erred by granting the plaintiff a nonsuit. Coston was not
required to assign cross-error in the prior appeal because in
the former proceeding in the circuit court, that court did not
grant the defendant's motion for summary judgment. This Court
remanded this case in the first appeal and directed the
circuit court upon remand to rule on the defendant's motion
for summary judgment that is the subject of this appeal. Bio-
4
Medical Applications of Virginia, 272 Va. at 495, 634 S.E.2d
at 352.
We have stated on many occasions that issues involving
medical negligence often fall beyond the realm of the common
knowledge and experience of a lay jury, and, therefore, in
most instances expert testimony is required to assist a jury.
Expert testimony is usually necessary to establish the
applicable standards of care, a deviation from those standards
of care, and that such deviation was a proximate cause of a
plaintiff's damages. Perdieu v. Blackstone Family Practice
Center, Inc., 264 Va. 408, 420, 568 S.E.2d 703, 710 (2002);
Beverly Enterprises-Virginia, Inc. v. Nichols, 247 Va. 264,
267, 441 S.E.2d 1, 3 (1994); Raines v. Lutz, 231 Va. 110, 113,
341 S.E.2d 194, 196 (1986); Bly v. Rhoads, 216 Va. 645, 653,
222 S.E.2d 783, 789 (1976).
We have held, however, that in certain rare
circumstances, expert testimony is not necessary in a medical
negligence case because the alleged acts of negligence clearly
lie within the range of the jury's common knowledge and
experience. For example, in Beverly Enterprises, we affirmed
a circuit court's judgment confirming a jury verdict in favor
of a plaintiff in a medical negligence action even though the
plaintiff did not produce expert testimony. 247 Va. at 270,
441 S.E.2d at 3-4.
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In that case, Blanche Nichols was diagnosed with
Alzheimer's disease. She could not care for herself, and she
was unable to eat unassisted. She was admitted to a nursing
home, and an administrator at the home was informed that
Nichols was unable to eat unassisted. Nichols' sons also
informed the administrator of prior incidents when Nichols had
choked while eating. Id. at 265-66, 441 S.E.2d at 2.
Employees of the nursing home, on at least two occasions,
delivered food to Nichols, but no one assisted her with her
food. Even though the nursing home personnel knew that
Nichols "needed to be spoon fed" and that someone "had to keep
an eye" on her, the employees failed to assist her and Nichols
died when food obstructed a portion of her air passage and
lodged in her windpipe. Id. at 266-67, 441 S.E.2d at 2-3.
We held that the plaintiff was not required to present
expert testimony to establish a prima facie case of medical
negligence because "the question whether a reasonably prudent
nursing home would permit its employees to leave a tray of
food with an unattended patient who had a history of choking
and who was unable to eat without assistance is certainly
within the common knowledge and experience of a jury." Id. at
269, 441 S.E.2d at 4.
In Dickerson v. Fatehi, 253 Va. 324, 484 S.E.2d 880
(1997), we also considered whether expert testimony was
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necessary to establish the appropriate standards of care and
breaches thereof in a medical negligence case. In Dickerson,
the plaintiff alleged that during the course of surgery, a
physician used a blunt tip hypodermic needle, including a
plastic attachment to the syringe, and that the physician
negligently failed to remove the hypodermic needle from her
neck at the conclusion of the procedure. After the surgery,
Dickerson experienced severe pain in her right arm, hand, and
neck. Approximately 20 months after the surgery, another
surgeon discovered and removed the needle and plastic
attachment from Dickerson's neck. Id. at 326, 484 S.E.2d at
881.
Dickerson filed a motion for judgment against certain
health care providers. She asserted that based upon the facts
alleged in her pleadings and the defendant's admissions,
expert testimony was not necessary to establish the
appropriate standards of care and breaches thereof. Id. at
327, 484 S.E.2d at 881. We held that if the facts alleged by
the plaintiff and admitted by the doctor were presented to a
jury, the jurors,
"absent expert testimony, reasonably could
determine, by calling upon their common knowledge
and experience, whether [the doctor] was negligent
and whether his negligence was a proximate cause of
Dickerson's injuries. Therefore, the trial court
erred in ruling that expert testimony was necessary
to establish the standard of care."
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Id. at 328, 484 S.E.2d at 882.
We also note that in Jefferson Hospital, Inc. v. Van
Lear, 186 Va. 74, 76-77, 84, 41 S.E.2d 441, 441-42, 445
(1947), we affirmed the judgment of a circuit court confirming
a jury verdict in favor of a plaintiff in a medical negligence
action without the presentation of expert testimony. In
Jefferson Hospital, the plaintiff fell and fractured his hip
while trying to walk to a bathroom. Even though the plaintiff
had utilized a device that activated a signal light plainly
visible to the floor nurse, neither the nurse nor any other
attendant responded to his call during the 20 or 30 minute
period that the signal light was activated. We held that the
evidence was sufficient to support a finding of negligence
without expert testimony because the hospital personnel were
aware of the plaintiff's physical condition and they knew, or
should have known, that a delay in answering his call for
assistance might induce him to leave his bed and attempt to
use the bathroom without assistance. Id. at 78-80, 41 S.E.2d
at 442-43.
We hold that in the present case, just as in Dickerson,
Beverly Enterprises, and Jefferson Hospital, the plaintiff's
allegations that she was injured after she was placed in a
defective chair, if proven at trial, would be sufficient to
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establish a prima facie case of medical negligence against the
defendant without the necessity of expert testimony. Based
upon these allegations, a jury could find that defendant's
employees placed the plaintiff in a defective chair even
though they had knowledge that the chair was not safe.
Certainly, the issue whether the defendant's acts or omissions
in this case constitute medical negligence is within a jury's
common knowledge and experience and, therefore, expert
testimony is not necessary.
The defendant, nevertheless, relying upon our decision in
Perdieu, argues that the plaintiff was required to establish
the applicable standards of care and deviations therefrom with
expert testimony. We disagree with the defendant's argument.
In Perdieu, we held that a plaintiff in a medical
negligence action must produce expert testimony to establish:
that a physician failed to supervise a resident physician;
that a physician breached the standards of care by failing to
timely diagnose an injury; that a nursing home was negligent
in failing to attend, restrain, assist, diagnose, examine, and
treat an inpatient; and that the nursing home was negligent in
its failure to implement a care plan for the patient. We held
that the plaintiff was required to present expert testimony to
establish a prima facie case of negligence because these
issues were not within the common knowledge and experience of
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lay jurors. 264 Va. at 421-22, 568 S.E.2d at 711. Unlike the
standard of care issues that this Court discussed in Perdieu,
in the appeal before this Court, the issue of the defendant's
acts of medical negligence regarding the defective chair is
quite simple and within the common knowledge and experience of
a lay jury.
IV.
Accordingly, we will reverse the judgment of the circuit
court, and we will remand this case to the circuit court for a
trial on the merits.
Reversed and remanded.
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