Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.
KEISHA DAGNER, ADMINISTRATRIX OF THE
ESTATE OF CAROLINE DAGNER, DECEASED
OPINION BY
v. Record No. 062134 JUSTICE LAWRENCE L. KOONTZ, JR.
November 2, 2007
CHARLES ANDERSON, M.D.
FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
Richard S. Blanton, Judge
This appeal arises from a jury verdict in favor of an
emergency room physician in a wrongful death medical
malpractice action. The dispositive issue presented is
whether the circuit court erred in permitting the jury to
consider the testimony of the physician’s expert medical
witness who had expressed an opinion that an alcohol
withdrawal seizure rather than a diabetic seizure was the
cause of the decedent’s injury and death. To resolve that
issue, we consider whether such testimony was relevant to the
question of the physician’s alleged negligence in discharging
the decedent from the emergency department of the hospital
where she was being treated, and if so, whether the expert was
qualified to express that opinion.
BACKGROUND
Because our consideration of this appeal is limited to
discrete questions concerning the relevance and admissibility
of expert witness testimony, we need recite only those facts
necessary to our resolution of the appeal. See, e.g., Budd v.
Punyanitya, 273 Va. 583, 587, 643 S.E.2d 180, 181 (2007);
Molchon v. Tyler, 262 Va. 175, 180, 546 S.E.2d 691, 695
(2001). We will recite the evidence in the light most
favorable to the defendant, Charles C. Anderson, M.D., the
prevailing party in the circuit court. See, e.g., Smith v.
Irving, 268 Va. 496, 498, 604 S.E.2d 62, 63 (2004).
On the evening of September 22, 2000, Caroline A. Dagner
(Dagner), a 52-year-old insulin-dependant diabetic, was
transported to the emergency department of Southside Community
Hospital in Farmville after being found unconscious in her
apartment by her adult daughter, Keisha R. Dagner. It is not
disputed that Dagner had taken her daily doses of insulin, had
not eaten any solid food, and had consumed a considerable
quantity of beer.1 While en route to the hospital, emergency
1
There is no dispute among the parties in this case that
insulin is a naturally occurring substance normally produced
in the pancreas that triggers the conversion of glucose in the
bloodstream into glycogen, which is stored in the liver and
muscle tissue, in order to reduce blood sugar levels. Dagner
suffered from a form of diabetes mellitus, commonly referred
to as diabetes, a chronic condition in which the body fails to
produce adequate amounts of insulin to properly regulate blood
sugar levels. Supplemental insulin, taken orally or by
injections, is a standard treatment for diabetes. If a
diabetic patient takes an insulin supplement, but does not
consume food, the patient’s blood sugar level will fall
causing a hypoglycemic episode in which the patient may lose
consciousness. Consumption of alcoholic beverages can
exacerbate the effect of a hypoglycemic episode.
2
medical personnel determined that Dagner was likely suffering
from hypoglycemia, that is, an abnormally low blood sugar
level, and gave Dagner an injection of glucagon in an effort
to stabilize her condition.2 Dagner responded positively to
the glucagon treatment and began to regain consciousness.
Upon arrival at the emergency department of the hospital
at 8:35 p.m., Dagner was evaluated by Kim Brown, R.N., a
triage nurse, and was then examined by Dr. Anderson. Both
Nurse Brown and Dr. Anderson concurred that Dagner’s condition
was the result of diabetic hypoglycemia. They also detected a
smell of alcohol on Dagner’s person and suspected that she
might be intoxicated, a factor which would interfere with her
body’s ability to recover from the hypoglycemic episode. Dr.
Anderson ordered various laboratory tests to be conducted
including a determination of Dagner’s blood alcohol level
(BAL). He further directed that she be given a meal, and that
she receive 50 milligrams of dextrose.3
2
There is no dispute among the parties in this case that
glucagon is a naturally occurring substance in the body that
triggers the release of stored glycogen into the bloodstream
and the production of glucose in the liver, thus raising blood
sugar level. An intramuscular injection of glucagon is a
standard treatment for diabetic hypoglycemia when the patient
is unable to take glucose orally.
3
There is no dispute among the parties in this case that
dextrose is a form of glucose and is frequently given to
diabetic patients orally or by injection following a
3
While Dagner ate the meal, Dr. Anderson spoke with her
about her routine for managing her diabetes. During this
conversation, Dagner, who then appeared to be fully alert and
responding normally, conceded that she had in the past
encountered complications in managing her blood sugar level
when consuming alcoholic beverages. Dr. Anderson warned her
that she “should never drink [alcohol] again.” After the
laboratory tests were completed, which among other things
showed that Dagner had a BAL of .24, Dr. Anderson discussed a
management plan with Dagner, directing her to return home,
measure her blood sugar level, eat a snack, and rest. He then
discharged Dagner from the emergency department shortly after
10:00 p.m.
At Dagner’s request, Nurse Brown called Keisha Dagner to
advise her that Dagner would be discharged from the hospital
and needed to be taken home. Keisha Dagner advised Nurse
Brown that she would be unable to leave work and come to the
hospital until the next morning. Dr. Anderson was not advised
that Dagner would not be able to return home and follow the
management plan as he had advised her.
hypoglycemic episode in order to speed the natural recovery to
a normal blood sugar level.
4
Dagner remained in the waiting area of the emergency
department, unattended, for over eight hours after she was
discharged by Dr. Anderson. When hospital personnel next
checked Dagner on the morning of September 23, she had a blood
sugar level of 17 and was comatose and unresponsive.4 Dagner
was admitted to the hospital and died on December 20, 2000
without regaining consciousness.
On September 18, 2002, Keisha Dagner, who had qualified
as administratrix of her mother’s estate, filed a motion for
judgment in the Circuit Court of Prince Edward County alleging
that Dagner’s death was caused by the medically negligent acts
of Dr. Anderson and Southside Community Hospital. The action
named Dr. Anderson, his employer Emergency Physicians of
Farmville, P.C. (collectively, “Dr. Anderson”), and Southside
Community Hospital as defendants.5 Dr. Anderson responded to
the action by asserting, among other things, that his
treatment of Dagner, and specifically his decision to
discharge her, was not a breach of the applicable standard of
care.
4
Dr. Anderson does not contest that when a person’s blood
sugar level declines below 20 milligrams per deciliter of
blood and remains so for a prolonged period of time that brain
damage and death are the likely result.
5
The estate subsequently accepted a settlement from the
hospital, which was dismissed from the action.
5
At trial, during the opening statement by counsel for Dr.
Anderson, a computerized slideshow media presentation was
shown to the jury that outlined Dr. Anderson’s anticipated
defense and included references to an alcohol withdrawal
syndrome (AWS) seizure as the cause of Dagner’s coma, brain
injury, and death. The substance of Dr. Anderson’s defense as
outlined in this presentation was that his discharge of Dagner
from the emergency department did not violate the standard of
medical care because he could not have known that Dagner was
subject to seizures as a result of AWS, and that it was just
such a seizure that caused her coma, brain injury, and death.
During their direct testimony, counsel for the estate
asked its expert witnesses, Dean Williams, M.D. and Anthony
McCall, M.D., their opinions as to whether Dagner’s coma,
brain injury, and death were the result of an AWS seizure,
rather than a diabetic seizure. Both experts opined that
there was no evidence to support a diagnosis that Dagner had
suffered an AWS seizure. Both experts further opined that Dr.
Anderson had failed to comply with the standard of care that
required him to protect Dagner from the consequences of her
low blood sugar in combination with her intoxication from
alcohol in making the decision to discharge Dagner from the
emergency department. Dr. McCall explained that the
combination of insulin and alcohol can be a “lethal
6
combination” for a diabetic such as Dagner. In general terms,
insulin lowers the blood sugar level and excessive alcohol in
the bloodstream prevents the blood sugar from being stabilized
because alcohol prevents the liver from producing more sugar,
and the brain requires a constant supply of sugar to remain
healthy.
In voir dire by Dr. Anderson’s counsel, David L. Shank,
M.D., who was Dr. Anderson’s only expert witness, testified
that he was “board certified in emergency medicine” and that
he had “been . . . in the practice of full time emergency
medicine since [1980].” Dr. Shank further testified that he
was “familiar with the standard of care for the care and
treatment of diabetes and hypoglycemia.” Dr. Shank agreed
that he was “familiar with something called alcohol withdrawal
seizure” and that he would be concerned about the occurrence
of such a seizure “[i]f someone who has been consuming
significant alcohol stops consuming alcohol.” In the course
of his practice of emergency medicine, Dr. Shank stated that
“[i]t wouldn’t be unusual . . . to see 5, 10, maybe 15 of
those patients [suffering AWS seizures] in a year’s time.”
Over the objection of the estate, the circuit court qualified
Dr. Shank “as an expert on the standard of care for an
emergency room physician or emergency medicine physician” and,
7
after being prompted by counsel for Dr. Anderson, added that
Dr. Shank was “qualified to speak as to causation.”
During direct examination, counsel for Dr. Anderson asked
Dr. Shank to “explain what caused [Dagner’s] unresponsiveness”
when she was found in the waiting area of the emergency
department on September 23, 2000. Dr. Shank stated that
“[t]here are several things that we have to think about that
could be the cause,” but expressed the opinion that “the most
likely cause was that she had an alcoholic withdrawal
seizure.” Dr. Shank further opined that Dagner’s alcohol
withdrawal seizure was an “unforeseeable, unpredictable event”
based on everything Dr. Anderson knew during his treatment of
Dagner and at the time he discharged her from the emergency
department.
During cross-examination, Dr. Shank conceded that only
three to five percent of the people who have alcohol
withdrawal also have seizures, and that such seizures are
“readily treatable.” Dr. Shank acknowledged that if Dagner
had been admitted to the hospital and been observed he would
have expected her to survive. Dr. Shank further acknowledged
that Dagner’s insulin level “was a significant factor” in
causing her brain injury following her seizure, that the
seizure could have had a “multifactorial cause,” and that he
was not an expert in such cases. Dr. Shank stated that while
8
he did not “have a neurologist’s perspective” on the causation
of seizures, he maintained that he had “a reasonable
physician’s opinion since I’m in emergency medicine and see
seizures.” At the conclusion of his testimony, the estate
moved to strike Dr. Shank’s testimony as to causation on the
ground that he was not qualified to offer an opinion on a
seizure with multifactorial causes. The circuit court
overruled the motion.
At the conclusion of all the evidence, the jury returned
its verdict in favor of Dr. Anderson, and the circuit court
entered judgment in accord with that verdict. We awarded the
estate this appeal.
DISCUSSION
The estate contends that the circuit court erred in
allowing the jury to consider evidence that Dagner’s brain
injury and subsequent death were caused by an AWS seizure.
Specifically, the estate contends that the circuit court
should not have permitted any testimony concerning AWS because
it was not relevant to the standard of care required of Dr.
Anderson in treating Dagner for hypoglycemia and in making the
determination to discharge her from the emergency department.
The estate also contends that evidence of alcohol use by
Dagner was highly prejudicial and outweighed its probative
value, if any. Even if the possibility that Dagner suffered
9
an AWS seizure was relevant and admissible, the estate further
contends that Dr. Shank’s opinion that Dagner had suffered
such a seizure was inadmissible because Dr. Shank lacked the
necessary qualifications to express that opinion.
Well established principles govern our consideration of
the issues raised in this appeal. “A trial court’s exercise
of its discretion in determining whether to admit or exclude
evidence will not be overturned on appeal absent evidence that
the trial court abused that discretion.” May v. Caruso, 264
Va. 358, 362, 568 S.E.2d 690, 692 (2002) (citing John v. Im,
263 Va. 315, 320, 559 S.E.2d 694, 696 (2002)). Likewise,
“whether a witness is qualified to testify as an expert is
‘largely within the sound discretion of the trial court.’ ”
Perdieu v. Blackstone Family Practice Center, Inc., 264 Va.
408, 418, 568 S.E.2d 703, 709 (2002) (quoting Noll v. Rahal,
219 Va. 795, 800, 250 S.E.2d 741, 744 (1979)); see also
Swersky v. Higgins, 194 Va. 983, 985, 76 S.E.2d 200, 202
(1953).
The issue before the jury in this case was whether Dr.
Anderson’s treatment of Dagner, and specifically his decision
to discharge her from the emergency department rather than to
delay discharge for further observation of her or to admit her
to the hospital, fell within the applicable standard of care
for a physician providing treatment to a patient suffering
10
from diabetes-related hypoglycemia in an emergency department
setting. In this context, evidence as to the actual cause of
Dagner’s subsequent coma, brain injury, and death was clearly
relevant to determining whether that standard of care was
violated. Dagner’s estate had the burden of showing that a
reasonable emergency care physician, under the factual
circumstances known to Dr. Anderson, would have recognized
that Dagner’s condition might worsen with respect to the
actual cause of her subsequent brain injury and death, whether
from a diabetes-related trauma or some other cause. If the
cause of her brain injury and death resulted from, or was
contributed to by, an AWS seizure as the defense maintained,
then the estate would have been required to show that Dr.
Anderson should have foreseen that possibility prior to
discharging Dagner. Accordingly, we hold that the circuit
court did not err in overruling the estate’s motion to exclude
evidence that Dagner may have suffered an AWS seizure.6
6
The estate’s reliance on Hemming v. Hutchinson, 221 Va.
1143, 1146, 277 S.E.2d 230, 232-33 (1981) and DeWald v. King,
233 Va. 140, 146, 354 S.E.2d 60, 63 (1987), for the
proposition that evidence of Dagner’s use or abuse of alcohol
should have been excluded because the prejudice it was likely
to engender in the jury outweighed its probative value is
misplaced. As those cases make clear, evidence of alcohol use
or abuse is not admissible unless it is relevant to an issue
in the case. Here, the question whether Dagner’s alleged
abuse of alcohol contributed to her death by causing an AWS
11
We now turn to the question whether Dr. Shank should have
been permitted to express an opinion that Dagner’s brain
injury and death were caused, at least in part, by an AWS
seizure. With respect to this issue, it is important to
distinguish between the two areas in which Dr. Anderson sought
to qualify Dr. Shank as an expert witness. Dr. Anderson
sought to qualify Dr. Shank as an expert on the standard of
care owed by an emergency room physician providing treatment
to a patient, such as Dagner, suffering from diabetes-related
hypoglycemia in an emergency department setting. Dr. Shank
was clearly qualified to render such an opinion, and the
estate does not contest his qualification on that ground.
However, Dr. Anderson also sought to have Dr. Shank qualified
as an expert on the causation of a brain injury by seizures,
and specifically as an expert capable of offering an opinion
that Dagner had suffered an AWS seizure that was the cause, at
least in part, of the brain injury that resulted in her death.
The estate contends that Dr. Shank was not qualified to
offer such an opinion because he lacked the necessary
background, training, and experience to offer an opinion as to
the cause of Dagner’s brain injury. Specifically, the estate
seizure was clearly relevant to the defense’s theory of the
case.
12
notes that Dr. Shank conceded that he was not qualified to
speak about the cause of seizures that may be multifactorial
in nature. Dr. Anderson responds that Dr. Shank was qualified
to give an opinion that Dagner suffered an AWS seizure based
upon Dr. Shank’s testimony that in his practice of emergency
medicine he treats between 5 and 15 patients each year who
suffer such seizures.
Generally, to qualify as an expert a witness needs only
to have a degree of knowledge of a subject matter beyond that
of persons of common intelligence and ordinary experience so
that the witness’ opinion will have value in assisting the
trier of fact in understanding the evidence or determining a
fact in issue. See Velazquez v. Commonwealth, 263 Va. 95,
103, 557 S.E.2d 213, 218 (2002); see also Sami v. Varn, 260
Va. 280, 284, 535 S.E.2d 172, 174 (2000). We are of opinion,
however, that in this case Dr. Shank’s stated familiarity with
AWS in the context of treating patients in an emergency
department setting is not a sufficient basis for the circuit
court to have qualified him as an expert on the issue whether
Dagner suffered an AWS seizure which was the cause of Dagner’s
brain injury and death.
Dr. Shank’s own testimony established that the role of a
physician providing emergency medical care was to assess the
patient’s condition and administer the necessary treatment to
13
stabilize the patient, not to provide long term care. While
Dr. Shank noted that in this context emergency medicine
“overlaps” with a number of medical specialties, he also
acknowledged that, as a practitioner of emergency medicine, he
did not have the requisite expertise to offer an opinion on
whether there was a multifactorial cause to Dagner’s brain
injury, even though he was of opinion that complications from
her diabetes would have contributed to that injury.
Accordingly, we hold that the circuit court erred in finding
that Dr. Shank was qualified to testify regarding his opinion
that Dagner’s brain injury was caused by an AWS seizure.
CONCLUSION
As we have previously noted, the thrust of Dr. Anderson’s
defense was that his discharge of Dagner from the emergency
department when he did so did not violate a reasonable
standard of medical care because it was not foreseeable that
Dagner would suffer an AWS seizure after her diabetes-induced
hypoglycemia had been treated and stabilized. We therefore
must conclude that the improper admission of Dr. Shank’s
opinion testimony that Dagner had in fact suffered an AWS
seizure, which was the only evidence offered to rebut the
estate’s evidence to the contrary, could have influenced the
jury’s determination that Dr. Anderson was not negligent.
Accordingly, we will reverse the judgment of the circuit court
14
and remand the case for a new trial on all issues consistent
with the views expressed in this opinion.7
Reversed and remanded.
7
Because the evidence adduced in the new trial will
likely be of a different quality and nature, we will not
address the further contention of the estate that the evidence
in Dagner’s medical records provided an insufficient
foundation to support Dr. Shank’s opinion that Dagner had
suffered an AWS seizure. For the same reason, we need not
address the estate’s two remaining assignments of error
concerning the admission of evidence of Dagner’s alleged prior
noncompliance with treatment plans for her diabetes and the
alleged admission of uncorroborated hearsay statements by
Dagner through the testimony of Dr. Anderson in violation of
Code § 8.01-397.
15