Chandler v. Graffeo

PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee,
JJ., and Stephenson, S.J.

RUTH E. CHANDLER, ET AL.
OPINION BY
v. Record No. 030665 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
November 5, 2004
CHARLES S. GRAFFEO, M.D., ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge

In this appeal from a judgment in a medical-malpractice

action, we determine whether the trial court erred in: (1)

admitting into evidence the opinion of a Medical Malpractice

Review Panel (the Panel) and the testimony of two Panel members

thereon when the Panel's decision was rendered beyond the

timeframe set forth in Code § 8.01-581.7:1; (2) permitting

testimony from two Panel members as the defendants' retained

experts after they had rendered a Panel opinion in the

defendants' favor; (3) granting jury instructions on the issue

of contributory negligence; (4) refusing to grant a jury

instruction regarding concurring negligence; and (5) allowing

the defendant-physician to recite the opinion of a non-

testifying physician.

I

This action was brought by Ruth E. Chandler and Toinette M.

Hurt (collectively, Chandler), as co-administrators of the

Estate of Robert H. Fields, against Charles S. Graffeo, M.D.,
and his employer, Emergency Physicians of Tidewater, Inc.

(Emergency Physicians) (collectively, the Defendants).1 Chandler

alleged that the Defendants' medical negligence led to Fields'

death. Fields had died from a ruptured thoracoabdominal aortic

aneurysm.

On February 27, 2001, this Court designated the members of

the Panel, and the Panel rendered its decision on September 4,

2001, more than six months after its designation. The Panel

opined that the evidence did not support a conclusion that Dr.

Graffeo and Emergency Physicians had failed to comply with the

appropriate standard of care.2 Chandler did not participate in

the Panel proceeding.

The case was tried before a jury, which returned a verdict

in favor of the Defendants. The trial court entered judgment on

the verdict, and this appeal ensued.

II

A brief summary of the underlying facts will suffice.

Additional facts will be recited as they relate to the several

issues under consideration.

1
Named defendants, Portsmouth General Hospital and Thomas
W. Wagner, M.D., were nonsuited, and named defendants, Ronald L.
King, M.D., and his employer, Medical Center Radiologists, Inc.,
settled with Chandler prior to trial.
2
The Panel further found that Medical Center Radiologists,
Inc., and Ronald L. King, M.D., had failed to comply with the
appropriate standard of care, but that such failure was not a
proximate cause of Fields' death.

2
 On September 4, 1997, Fields was admitted to Maryview

Medical Center (Maryview) in Portsmouth, complaining of sharp,

mid-sternal chest pain, abdominal pain, and numbness in both

legs. During his five-day hospital stay, Fields underwent

numerous tests, none of which provided a definitive diagnosis.

On September 9, 1997, Fields was discharged from Maryview with

instructions to follow up with a nephrologist to evaluate renal

insufficiency of an unknown origin.

Fields' pains persisted, and, on September 11, 1997, he

presented to Portsmouth General Hospital's emergency room.

There, Fields stated that his back and stomach area "hurts." He

also complained of chest pain and "bilateral flank pain, right

greater than left, that extend[ed] down towards his lower

abdomen."

Dr. Thomas W. Wagner saw Fields in the emergency room. Dr.

Wagner ordered radiological tests to rule out abdominal aortic

aneurysm and placed Fields under the care of Dr. Graffeo.

Dr. Graffeo diagnosed Fields as suffering from a non-

dissecting lower thoracoabdominal aortic aneurysm. Fields'

pains subsided, and Dr. Graffeo discharged Fields from the

hospital with instructions to see Dr. Keith H. Zaitoun, a

nephrologist, the following day, September 12th.

Fields endeavored to schedule the appointment with Dr.

Zaitoun as directed, but he was informed that September 17th was

3
the earliest available appointment. On September 15, 1997,

Fields collapsed at his home and was pronounced dead after

emergency resuscitation efforts were unsuccessful.

III

We first consider whether the trial court erred in

admitting into evidence the Panel's opinion and its members'

testimony thereon. Code § 8.01-581.7(A) provides that a panel

shall, after receiving all the evidence and after joint

deliberation, render an opinion within 30 days. Code § 8.01-

581.7:1 provides:

Unless the parties otherwise agree, any opinion
of the panel shall be rendered no later than six
months from the designation of the panel unless the
judge shall extend the period one time, not to exceed
ninety days, upon a showing of extraordinary
circumstances. If the opinion of the panel is not
rendered within the time provided, any panel opinion
rendered subsequently shall be inadmissible as
evidence unless the failure of the panel to render a
decision within the time provided was caused by delay
on the plaintiff's part.

On February 27, 2001, this Court designated the Panel

members to review this case, and a Panel hearing was originally

scheduled for May 25, 2001. The trial court, however, cancelled

this date because Dr. Ronald L. King, then a defendant and Panel

witness, was scheduled to be "out of the country" at that time.

When the hearing date was cancelled, nearly three months of the

six-month statutory period remained. Nevertheless, the court,

without any explanation at the time, reset the hearing for

4
September 4, 2001, eight days beyond the six-month statutory

period. The parties did not agree to the extension, and

Chandler had nothing to do with any delay or scheduling of the

hearing beyond the six-month period.

Prior to trial, Chandler moved to have excluded the Panel's

opinion and the members' testimony thereon. The trial court

considered this motion on October 8, 2002, one week prior to

trial. On that date also, the Defendants, for the first time,

moved the court, after the fact, to extend the time for the

Panel hearing.

By order entered October 21, 2002, "nunc pro tunc to

October 28, 2002," the court denied Chandler's motion to exclude

and granted the extension for the Panel hearing. The court

found that "there was a showing of extraordinary circumstances

in existence, thereby allowing the Court to extend the time for

the panel to convene, not to exceed 90 days." The extraordinary

circumstances, according to the court, were that Dr. King was

out of the country and unavailable for the May 25th hearing date

and that "the date most convenient to the Court and the Panel

Members was September 4, 2001."

We find nothing in the record to support the trial court's

finding that extraordinary circumstances existed to justify

setting the Panel hearing date beyond the statutory six-month

period when, at the time of the extension, nearly three months

5
of the period remained. The court does not explain why the

hearing could not have been conducted within the six-month

period. We hold, therefore, that the trial court erred in

admitting into evidence the Panel's opinion and its members'

testimony thereon.

IV

We next consider the Panel members' testimony as

Defendants' retained experts. Chandler contends that the trial

court erred in permitting "trial testimony from two [Panel]

members as defendants' retained experts and as panel members,

after they had rendered panel opinions in defendants' favor."

Pursuant to Code § 8.01-581.3, a panel shall be composed of

two "impartial attorneys," two "impartial health care

providers," and a judge of the circuit in which the action is

filed who presides over the panel but does not vote. After an

opinion is issued, it "shall be admissible as evidence," and

"[e]ither party shall have the right to call, at his cost, any

member of the panel, except the judge, as a witness. If called,

each witness shall be required to appear and testify." Code

§ 8.01-581.8. Code § 8.01-581.1 defines "impartial health care

provider" as

a health care provider who (i) has not examined,
treated or been consulted regarding the claimant or
his family; (ii) does not anticipate examining,
treating, or being consulted regarding the claimant or
his family; or (iii) has not been an employee, partner

6
 or co-proprietor of the health care provider against
whom the claim is asserted.

In the present case, after the Panel proceeding, the

Defendants retained as experts former Panel members Karsten F.

Konerding, M.D., a radiologist, and Francis E. Watson, M.D., an

emergency room physician, to examine "additional materials" and

to testify on behalf of the Defendants at trial. When these

former Panel members testified at trial, the Defendants' counsel

presented them as having been appointed by the Chief Justice of

this Court to serve on the Panel and as having taken an oath to

examine the claims impartially.

The Defendants assert that the Panel members "were

appointed by this Court, took the Oath and rendered a fair and

impartial opinion and came to trial to testify regarding that

process and their opinions. They were paid for their additional

services, as allowed by statute, and testified that their

individual opinions had not changed by review of additional

material."3 Chandler counters that "[i]t cannot reasonably be

asserted that a party calling the Panel member 'at his cost'

grants any party the right to convert the impartial Panel member

3
At trial, Dr. Konerding testified only regarding the Panel
proceeding and the Panel opinion. Dr. Watson testified that,
after the Panel proceeding, he considered additional materials
in the form of depositions and that nothing therein had changed
his opinion from that rendered as part of the Panel.

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into a retained expert with additional duties and work beyond

and outside the scope of the Panel proceeding."

We agree with Chandler. We find nothing in the statutory

scheme respecting a panel's procedures that gives either party

the right to retain an impartial panel member as an expert. In

addition, we think that the impartiality required by Code

§ 8.01-581.3 must remain through the conclusion of the trial.

Indeed, impartiality would become an impossibility if either

party were permitted to retain panel members as experts because

no potential panel member would be without any anticipation

concerning future consultation regarding the claimant or his

family. Moreover, the panel members' appointment to and service

on the panel would tend to clothe the expert, in the jury's

view, with superior qualifications and greater credibility.

We hold, therefore, that the trial court erred in

permitting the Panel members to testify as the Defendants'

retained experts. Their testimony violated the intent and

spirit of the statutory scheme; i.e., the impartiality of the

Panel proceeding.4

V

4
Chandler also contended that the Defendants' Designation
of Expert Witnesses did not sufficiently disclose that the Panel
members had been retained as Defendants' experts. In light of
the other rulings set forth in the present opinion, it is not
necessary to address this issue.

8
 We now consider whether the trial court erred in

instructing the jury on contributory negligence and in refusing

to instruct the jury on concurring negligence. As previously

noted, Fields presented to the emergency room of Portsmouth

General Hospital on September 11, 1997. While there, Fields

came under the care of Dr. Graffeo, who diagnosed a "non-

dissecting 4 cm lower thoracoabdominal aneurysm" and "a small

amount of left pleural fluid." According to Dr. Graffeo, there

was nothing emergent about Fields' condition. Accordingly, Dr.

Graffeo discharged Fields from the hospital with instructions to

follow up the next morning with Dr. Zaitoun. Fields endeavored

to secure an appointment with Dr. Zaitoun the following morning,

but Dr. Zaitoun could not see Fields until September 17. Fields

died of a ruptured abdominal aortic aneurysm on September 15,

1997.

The Defendants contend that Fields was contributorially

negligent for not seeing Dr. Zaitoun the following morning.

Chandler asserts, to the contrary, that Fields' conduct was not

negligent, and that, even if it were, it was not contemporaneous

with Dr. Graffeo's negligence. We agree with Chandler.

To constitute contributory negligence in a medical-

malpractice case, a plaintiff's negligence must be

contemporaneous with the claimed defendant's negligence. Sawyer

v. Comerci, 264 Va. 68, 75, 563 S.E.2d 748, 753 (2002);

9
Ponirakis v. Choi, 262 Va. 119, 125, 546 S.E.2d 707, 711 (2001);

Gravitt v. Ward, 258 Va. 330, 335, 518 S.E.2d 631, 634 (1999);

Eiss v. Lillis, 233 Va. 545, 552, 357 S.E.2d 539, 543 (1987);

Lawrence v. Wirth, 226 Va. 408, 412-13, 309 S.E.2d 315, 317-18

(1983). We conclude that the record is devoid of any evidence

suggesting that Fields was negligent. Clearly, there was no

evidence of any negligence by Fields that was contemporaneous

with Dr. Graffeo's negligence in discharging him from the

hospital. Dr. Graffeo did not think Fields' condition was life

threatening, and Fields, a layman, cannot be expected to know

otherwise. We hold, therefore, that the trial court erred in

granting the jury instructions on contributory negligence. See

Sawyer, 264 Va. at 75-76, 563 S.E.2d at 753.

Regarding concurring negligence, Chandler asserts that the

evidence showed that both Dr. King and Dr. Graffeo were

negligent. We do not agree.

The Panel opinion served as the sole expert evidence

regarding Dr. King's deviation from the standard of care. This

evidence was insufficient to establish Dr. King's negligence

because it would have left the jury to speculate regarding the

appropriate standard of care. See Raines v. Lutz, 231 Va. 110,

114, 341 S.E.2d 194, 197 (1986). In cases such as this,

10
evidence of negligence must come from other expert testimony.5

We hold, therefore, that the trial court properly refused to

grant a jury instruction regarding concurring negligence.

VI

Finally, we consider whether the trial court erred in

permitting Dr. Graffeo to recite the opinion of Dr. Zaitoun, a

non-testifying expert. At trial, over Chandler's hearsay

objection, Dr. Graffeo was permitted to testify that he had

described Fields' condition and symptoms to Dr. Zaitoun and that

Dr. Zaitoun had agreed that it was safe to discharge Fields from

the hospital. Dr. Graffeo asserts that Dr. Zaitoun's opinion

was not hearsay because it was not introduced to prove the truth

of the assertion.

We have described hearsay evidence as

"evidence which derives its value, not solely from the
credit to be given the witness on the stand, but in
part from the veracity and competency of some other
person. It is primarily testimony which consists in a
narration by one person of matters told him by
another. A clear example of hearsay evidence is where
a witness testifies to the declaration of another for
the purpose of proving the facts asserted by the
declarant."

Wright v. Kaye, 267 Va. 510, 530, 593 S.E.2d 307, 318 (2004)

(quoting Williams v. Morris, 200 Va. 413, 416-17, 105 S.E.2d

5
The Panel opinion found that Dr. King's failure to comply
with the appropriate standard of care was not a proximate cause
of Fields' death. Therefore, there was no expert evidence
regarding proximate cause.

11
829, 832 (1958)). We have also said that " '[n]o litigant in

our judicial system is required to contend with the opinions of

absent "experts" whose qualifications have not been established

to the satisfaction of the court, whose demeanor cannot be

observed by the trier of fact, and whose pronouncements are

immune from cross-examination.' " CSX Transportation v. Casale,

247 Va. 180, 183, 441 S.E.2d 212, 214 (1994) (quoting McMunn v.

Tatum, 237 Va. 558, 566, 379 S.E.2d 908, 912 (1989)).

We find no other reason for introducing Dr. Zaitoun's

opinion than to bolster Dr. Graffeo's testimony to prove that he

had complied with the appropriate standard of care. We hold,

therefore, that the testimony constituted inadmissible,

prejudicial hearsay, which was not subject to cross-examination,

and that the trial court erred in permitting Dr. Graffeo to

recite it.

VII

For the reasons stated, we will reverse the trial court's

judgment and remand the case for further proceedings consistent

with the views expressed in this opinion.

Reversed and remanded.

JUSTICE AGEE, with whom JUSTICE KEENAN joins, concurring in part
and dissenting in part.

I concur in the majority opinion, except as to Part IV.

Because I conclude that the trial court did not err in

12
permitting "trial testimony from two [Panel] members as

defendants' retained experts and as [P]anel members, after they

had rendered panel opinions in defendants' favor," I

respectfully dissent as to Part IV of the majority opinion.

The statutory framework for Medical Malpractice Review

Panels, Code § 8.01-581.1, et. seq., defines the “impartial

health care provider.” No question has been raised in this case

that the physicians at issue, Drs. Konerding and Watson,

fulfilled all requirements of an impartial health care provider

at the formation of the Panel, during its deliberations, and in

the rendering of its opinion. Nothing in the statutory scheme

regulates the “impartiality” of a Panel member thereafter.

It is without question that Panel members can be called as

witnesses at trial and testify as to the Panel opinion. “Either

party shall have the right to call, at his cost, any member of

the panel, except the judge, as a witness.” Code § 8.01-581.8.

In fact the Panel member is “required to appear and testify” if

so called, and the party who calls him must pay the member’s

cost.

However, once the Panel has been selected, heard and

considered the evidence, and rendered its opinion, the statutory

basis for impartiality ceases. Clearly, at this point, the

Panel members have formed an opinion about the evidence and are

subject to being called by a party as de facto experts. The

13
impartiality requirement will have already ensured that the

Panel reached its decision fairly and objectively, but it is not

intended to constrain that the members forever remain impartial.

Thereafter permitting the retention of Panel members as experts

does not contradict the statutory requirement of impartiality.

Code § 8.01-581.20, which sets forth witness qualifications

to testify as an expert, does not disqualify a witness based

upon Panel participation. Indeed, the Panel’s work (other than

testimony at trial upon their previously rendered opinion) must

be done before the Panel member could be retained for any

additional services. Nothing in the statutory scheme prohibits

the additional step, should a party chose to do so, of retaining

a Panel member as an expert witness to testify at trial on

matters beyond the Panel opinion, once that opinion has been

rendered. Any conflict or bias on the part of the Panel member

by virtue of his post Panel work is addressed through the normal

venue of cross-examination should the member be called to

testify at trial.

The majority opinion writes a judicial amendment to the

statutory definition of impartial health care provider by adding

post-Panel prohibitions on service as a retained expert witness.

While such a prohibition may be preferred public policy, it is

not within the written statute. If such a prohibition is to be

enacted, it is for the General Assembly to promulgate and not

14
the judiciary. Courts cannot “add language to the statute the

General Assembly has not seen fit to include.” Holsapple v.

Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561, 564-65 (2003)

cert. denied, ___ U.S. ___, ___ S.Ct. ___ (2004). “[N]or are

they permitted to accomplish the same result by judicial

interpretation.” Burlile v. Commonwealth, 261 Va. 501, 511, 544

S.E.2d 360, 365 (2001) (internal quotation marks omitted).

I would hold, therefore, that the trial court did not err

in permitting the former Panel members to testify as the

defendants' retained experts. Accordingly, I respectfully

dissent as to Part IV of the majority opinion.

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