Doherty v. Aleck

Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, Agee, JJ.,
and Carrico, S.J.

JOHN R. DOHERTY
OPINION BY
v. Record No. 060959 SENIOR JUSTICE HARRY L. CARRICO
March 2, 2007
DEBRA J. ALECK, D.P.M., ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
James A. Cales, Jr., Judge

BACKGROUND

In this medical malpractice case, the plaintiff, John R.

Doherty, filed a motion for judgment against the defendants,

Debra J. Aleck, D.P.M., and Podiatry, Ltd., a limited liability

company wholly owned by Dr. Aleck. In his motion for judgment,

Doherty alleged that Dr. Aleck was negligent, inter alia, in

failing to “refrain from contraindicated surgeries,” resulting

in the amputation of the great toe on Doherty’s left foot.

A jury returned a verdict in favor of Doherty in the amount

of $850,000.00. The defendants moved to set aside the verdict

on the grounds Doherty’s medical expert, Dr. Noel P. Patel, had

failed to testify to a reasonable degree of medical probability

that Dr. Aleck breached the standard of care and that the

alleged breach proximately caused Doherty’s injuries. The trial

court granted the motion, set the verdict aside, and entered

final judgment in favor of the defendants. We awarded Doherty

this appeal.
 STANDARD OF REVIEW

In determining whether the verdict was properly set aside,

we are guided by a well-settled standard of review. Under Code

§ 8.01-680, a trial court is empowered to set aside a verdict in

a civil action on the ground it is “plainly wrong or without

evidence to support it.” However, as we explained in Lane v.

Scott, 220 Va. 578, 260 S.E.2d 238 (1979):

“[This power] can only be exercised where the verdict is
plainly wrong or without credible evidence to support it.
If there is a conflict in the testimony on a material
point, or if reasonable [persons] may differ in their
conclusions of fact to be drawn from the evidence, or if
the conclusion is dependent on the weight to be given the
testimony, the trial judge cannot substitute his conclusion
for that of the jury merely because he would have voted for
a different verdict if he had been on the jury.”

Id. at 581, 260 S.E.2d at 240 (quoting Commonwealth v. McNeely,

204 Va. 218, 222, 129 S.E.2d 687, 689-90 (1963)). Further, “in

considering the evidence, we give the recipient of the verdict

the benefit of all substantial conflicts in the evidence and all

reasonable inferences that may be drawn from the evidence.”

Shalimar Dev., Inc. v. Federal Deposit Ins. Corp., 257 Va. 565,

570, 515 S.E.2d 120, 123 (1999).

THE FACTS

The record shows that Doherty came under Dr. Aleck’s care

in April of 2000 for a callous on the side of the great toe on

his left foot. At the time, Doherty was 74 years of age and

suffering from diabetes and diabetic neuropathy with a history

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of quintuple bypass surgery and the installation of a pacemaker

one year earlier, as well as colon cancer and prostate cancer

several years earlier. In her 11 years of practice, Dr. Aleck

had seen only two other patients who had undergone quintuple

bypass surgery.

Dr. Aleck began a course of treatment of Doherty’s callous,

which included periodically shaving the callous and having the

plaintiff wear a shoe that, he said, did not relieve the pain in

his toe and got his “back out of whack.” The shaving process

continued for about ten months to the point where the process

caused the callous to bleed and create a hole in the callous.

By February of 2001, Doherty had developed a neuropathic

ulcer in the same area as the callous, and his toe became red

and swollen. He made an appointment with Dr. Aleck, who noticed

there was a “brewing infection underneath the skin.” She “cut

it, drain[ed] it, cultured it,” and put Doherty “on an

antibiotic right away.”

Nine months later, x-rays revealed a bone spur on Doherty’s

left great toe “that was causing it . . . not to heal.” On

December 5, 2001, Dr. Aleck performed surgery in her office and

removed the bone spur, and it is this surgery that is the

subject of the present controversy. Doherty returned home the

same day with his foot completely bandaged.

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 On a follow-up visit five days later, Dr. Aleck removed the

bandage, examined Doherty’s toe, and indicated everything was

“fine.” Two days later, Doherty’s wife called Dr. Aleck’s

office because Doherty was in such pain that he was crying and

his toe was hot and red. Mrs. Doherty was only able to reach

Dr. Aleck’s assistant, who told her to increase the pain

medication, which she did. In a second conversation the same

day, the assistant told Mrs. Doherty that “they had done . . .

extensive surgery on the foot.”

Early on the morning of December 12, Mrs. Doherty called

Dr. Aleck’s office again, this time in tears, because her

husband was “hurting so bad” and she “could smell something but

[she] didn’t know what it was.” She asked to speak to the

doctor, but was only allowed to talk to the assistant. About

six o’clock that evening, Dr. Aleck called Mrs. Doherty, who

told the doctor what she had reported to the assistant earlier

in the day. Dr. Aleck told Mrs. Doherty to “bring [Doherty] in

first thing in the morning.” Mrs. Doherty asked where Dr. Aleck

was, and when she was told the doctor was in the office, Mrs.

Doherty said she was “bringing him tonight.” Mrs. Doherty

borrowed a wheelchair from a neighbor, put her husband in a car,

and drove him to Dr. Aleck’s office.

Dr. Aleck examined Doherty’s toe and found it malodorous,

blackish in color, and with hemorrhagic drainage. “The minute

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[Dr. Aleck] saw [the toe],” she knew it “was a serious

condition.” As a podiatrist, she could only co-admit patients

to a hospital, and she had to call several other doctors before

she could arrange for Doherty’s admission. Mrs. Doherty and

other family members who had come to Dr. Aleck’s office took

Doherty to the emergency room at Maryview Hospital. Doherty was

admitted to the hospital, and the next morning was examined by

Dr. Elias J. Arbid, a vascular surgeon, who found Doherty

suffering from “gangrene with a necrotizing infection” with “no

way to salvage the toe.” Dr. Arbid then amputated the toe.

ANALYSIS

On appeal, the defendants argue that the trial court was

correct in setting aside the jury verdict because, as they

argued in their motion to set aside the verdict, Doherty’s

expert witness, Dr. Patel, did not testify to a reasonable

degree of medical probability that Dr. Aleck breached the

standard of care and that the alleged breach proximately caused

Doherty’s injuries. As Doherty points out, we have held that

this argument is properly considered a challenge to the

admissibility of the evidence, not a challenge to the

sufficiency of the evidence. Bitar v. Rahman, 272 Va. 130, 139,

630 S.E.2d 319, 324 (2006). Such a challenge must be raised

when the evidence is presented and, as Bitar explains, comes too

late “if the objecting party remains silent during its

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presentation and brings the matter to the court’s attention by a

motion to strike made after the opposing party has rested." Id.

In this case, the defendants did not object to the admission of

Dr. Patel's testimony and, thus, the defendants' argument

challenging the adequacy of Patel's testimony on the ground it

was not to a reasonable degree of medical probability was not

timely made. Therefore, the trial court should not have

considered this argument in deciding whether there was

sufficient evidence to sustain the jury verdict and we will not

consider it here.*

The question in this case is not whether Dr. Aleck was

negligent in the way she performed the spur-removal surgery on

Doherty’s toe on December 5, 2001, but whether she was negligent

in performing the surgery at all. Our consideration of the

issue of breach of the standard of care, therefore, will focus

upon whether, as Doherty’s motion for judgment charged, the

surgery was “contraindicated.”

*
The defendants say we should not consider Doherty's argument
concerning their failure to make a contemporaneous objection
because Doherty's petition for appeal contained no assignment of
error relating to that failure. However, assignments of error
are supposed to "list the specific errors in the rulings below
upon which the appellant intends to rely," Rule 5:17(c), meaning
errors of a court in a given case, not errors of a party in the
handling of the case. Furthermore, Doherty assigned error to
the trial court's action in setting aside the verdict, and the
defendants' failure to make a contemporaneous objection relates
to that assignment because the failure to object directly

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 BREACH

Dr. Patel, Doherty’s medical expert, testified that, given

Doherty’s medical history, Doherty was “a poor candidate” for

the surgery Dr. Aleck performed on December 5, 2001, and that

the surgery “was not medically necessary at the time.” Dr.

Patel said that “[t]his is not an emergency procedure, this is

more elective”; Doherty was more at risk of infection, gangrene,

and amputation than one not suffering from similar conditions;

and “the standard of care . . . with respect to doing surgery”

would require one to “be very reserved and conservative and

certainly not trying . . . to complicate matters more.”

Dr. Patel also stated that “[a]fter reviewing the records

of Dr. Aleck and the other consultants,” it was his opinion “Mr.

Doherty was a poor choice for this elective procedure” and he

“could have been treated conservatively.” There was “a good

chance,” Dr. Patel said, “that Mr. Doherty probably would have

healed eventually with the conservative care,” and when asked on

cross-examination “[h]ow much longer would [he] have gone on

. . . with a patient like Mr. Doherty,” Dr. Patel replied, “[a]s

long as it takes to keep that patient ambulatory, to keep that

toe alive.”

affects the quality of the evidence that must be evaluated in
determining whether the verdict was property set aside.

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 Dr. Patel was also asked on cross-examination whether he

understood “there may be a difference between what [he] would do

individually and what the standard of care in the abstract would

require.” The doctor replied, “I think it’s prudent for the

physician to make that decision from the standpoint of what a

normal practicing physician would do under those circumstances,

and my personal opinion is that [Dr. Aleck] did not do what a

normal practicing physician would do under those circumstances.

So therefore, she did breach the standard of care.”

When asked on cross-examination whether it “would be fair

to say” that “just because someone’s a poor candidate doesn’t

mean it’s a breach of the standard of care for a doctor to

address the problem surgically,” Dr. Patel replied, “there’s

something called common sense. I think as a physician you have

to make that decision for the patient. You have to protect the

patient’s best interest.” When pressed with the same question,

the doctor stated: “The standard of care, in my opinion, would

be to breach from the norm, and as far as I’m concerned, this is

a breach from the norm.” And, although Dr. Patel agreed while

on cross-examination that “whether to do surgery” was a matter

of “[p]rofessional judgment,” he stated on redirect that Dr.

Aleck’s surgery on Doherty “certainly was poor judgment.”

As noted previously, the question in this case is not

whether Dr. Aleck was negligent in the way she performed the

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spur-removal surgery on December 5, 2001, but whether she was

negligent in performing the surgery at all. The defendants were

quite successful in getting Dr. Patel to agree there was nothing

negligent about the way Dr. Aleck performed the surgery, but,

again, the defendants have missed the point. We are of opinion

that Dr. Patel’s testimony as supplemented by the medical

records was clearly sufficient to make a jury issue of whether

Dr. Aleck was negligent in performing the surgery at all.

CAUSATION

“ ‘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.’ ” Jenkins v. Payne,

251 Va. 122, 128, 465 S.E.2d 795, 799 (1996) (quoting Beale v.

Jones, 210 Va. 519, 522, 171 S.E.2d 851, 853 (1970)). “There

may be more than one proximate cause of an event.” Jenkins, 251

Va. at 128, 465 S.E.2d at 799. Thus, the question is whether

the surgery Dr. Aleck performed on Doherty on December 5, 2001,

was a proximate cause of the amputation of his toe.

In addition to the evidence concerning Doherty’s age and

the pre-surgery debilitating condition of his health, the record

shows a continuous sequence of events commencing with the

surgery on December 5, 2001, followed only eight days later by

the amputation of his toe on December 13. Dr. Patel testified

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that Dr. Aleck had used a tourniquet on Doherty’s toe during the

surgery, which he said was an accepted procedure, but “when you

release that tourniquet, you get a flow of blood especially into

that area,” and “that can lead to a more complicated condition

where he has ischemia”; “[i]schemia is a lack of blood flow to

the area,” and the “number one cause of [gangrene developing in

Mr. Doherty’s situation] is ischemia, lack of blood flow to the

area.” And from his “reading of the notes,” Dr. Patel concluded

“it was gangrene” that was “the reason for the amputation.”

The defendants assert, however, that Dr. Patel “undermined

his already weak testimony regarding proximate cause when he

admitted that Mr. Doherty may have undergone an amputation even

absent Dr. Aleck’s surgery.” The defendants point out that Dr.

Patel said there was “a possibility [Doherty] would probably go

on to amputation” and that “diabetic patients can go on to

develop gangrene even if a podiatrist does everything right.”

We disagree with the defendants’ characterization of the

strength of Dr. Patel’s testimony. But, if Doherty’s proof of

causation was lacking in some respect, the deficiency was

removed by the testimony of two of the defendants’ own

witnesses. The defendants’ medical expert, Dr. Laurence Rubin,

testified on direct examination that Doherty had a post-

operative infection, rather than ischemia, and that “[m]other

nature” caused the infection. However, when asked on cross-

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examination “[d]oes mother nature cut off circulation like a

tourniquet . . . [p]ostoperatively,” his answer was,

“[p]ostoperatively, no.” And, Dr. Arbid, who amputated

Doherty’s toe and who testified for the defendants, supplied the

clincher. He was asked “[w]hether anything [Dr. Aleck] did

caused Mr. Doherty to need a great toe amputation.” The doctor

replied, “I’d like for you to clarify that, because clearly that

occurred as a result of a previous procedure she had performed.”

(Emphasis added.)

Finally, with regard to Dr. Patel’s testimony that there

was “a possibility [Doherty] would probably go on to amputation”

(emphasis added), the law in this area deals in probabilities

and not possibilities. Fairfax Hosp. System, Inc. v. Curtis,

249 Va. 531, 535, 457 S.E.2d 66, 69 (1995). Furthermore, anyone

who reads the record in this case should come away convinced

that, with a patient in the stressful situation in which Doherty

found himself, it was probable that, but for Dr. Aleck’s

surgery, Doherty would not have suffered the amputation of his

toe. We are of opinion, therefore, that the evidence was

clearly sufficient to make a jury issue of whether the surgery

Dr. Aleck performed on Doherty was a proximate cause of the

amputation of his toe.

Accordingly, we hold that the jury’s verdict was supported

by credible evidence, and we will reverse the judgment of the

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trial court, reinstate the jury verdict, and enter final

judgment in favor of Doherty.

Reversed and final judgment.

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