Present: All the Justices
STUART W. POLLINS, ADMINISTRATOR OF THE
ESTATE OF NICHOLAS VACCARO-POLLINS, DECEASED
v. Record No. 010425 OPINION BY JUSTICE ELIZABETH B. LACY
January 11, 2002
RAYMOND JONES, M.D.
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
In this appeal from a judgment in favor of the defendant
doctor in a wrongful death case, we consider whether the
evidence presented supported a jury instruction which told the
jury to enter judgment in favor of the doctor if it found that
the doctor chose one of "two or more alternative courses of
action . . . recognized by the profession as proper."
Nicholas Vaccaro-Pollins (Nicholas) was born on October 20,
1993 with trisomy 21 (Down's Syndrome) and a congenital
ventricular septal defect. 1 On April 4, 1995, Nicholas underwent
surgery to repair the defect in his heart at the Medical College
of Virginia Hospitals (MCV Hospital). Nicholas experienced
post-operative complications, including two different episodes
of pericardial effusion, a condition in which excessive fluid
collects around the heart. These effusions were drained on
April 7 and 14 while Nicholas was still in the care of MCV
Hospital. Nicholas was discharged from MCV Hospital in stable
condition on April 17 with instructions that he be given one
baby aspirin every six hours and 5 mg. of Lasix twice daily. 2
On April 21, Nicholas began vomiting and suffering from
diarrhea and a low-grade fever. Nicholas' mother, Donna
Vaccaro-Pollins, took Nicholas to see Raymond Jones, M.D.,
Nicholas' pediatrician. Dr. Jones was aware of Nicholas' prior
surgery and post-operative pericardial effusions. Dr. Jones
gave Nicholas a physical examination that included listening to
and palpitating his heart and liver, and concluded that Nicholas
had gastritis. He prescribed Phenergan, an anti-emetic drug.
He also instructed Mrs. Vaccaro-Pollins not to give Nicholas his
evening dose of Lasix or aspirin and recommended that she
contact Nicholas' doctors at MCV Hospital to report his current
problems.
In the early hours of April 22, 1995, Nicholas went into
cardiac arrest and, after attempts to revive him failed, he was
pronounced dead at 5:38 a.m. The autopsy of Nicholas' body
revealed that his pericardium contained 170 cc. of fluid,
evidence that Nicholas died from congestive heart failure
resulting from cardiac tamponade, a condition where excessive
1
A ventricular septal defect is a condition in which there
is a connecting hole between the lower two chambers of the
heart.
2
Lasix is a diuretic used to flush excess fluid from the
body and is commonly prescribed after heart surgery.
2
pressure is placed on the heart as a result of fluid in the
pericardium.
Stuart W. Pollins, Nicholas' father and the administrator
of his estate (the Administrator) brought this wrongful death
action against Dr. Jones. 3 The Administrator presented three
expert witnesses, who testified regarding the standard of care
for treating a patient presenting Nicholas' symptoms and that
Dr. Jones breached that standard of care. Dr. Jones also
offered the testimony of three expert witnesses who testified
that Dr. Jones' actions did not constitute a breach of the
standard of care of a physician presented with a patient in
Nicholas' condition.
Over the Administrator's multiple and strenuous objections,
the trial court granted Dr. Jones' request that Instruction R be
given to the jury. The instruction stated:
You have heard from the expert witnesses who have
testified in this case with different views as to what
would be the proper procedures to be followed by a
physician in the position of Dr. Jones. If you find
from this testimony that two or more alternative
courses of action would be recognized by the
profession as proper, and that Dr. Jones in the
exercise of his best judgment elected one of these
proper alternatives, you should find for Dr. Jones.
The jury returned a verdict in favor of Dr. Jones and the trial
court entered judgment in accordance with the jury verdict.
3
On appeal, the Administrator seeks reversal of the judgment
on the ground that Instruction R was improperly given because
there is no evidence to support such an instruction.
The applicable principles are well settled. A jury
instruction may be given only if there is evidence to support
the instruction. Van Buren v. Simmons, 235 Va. 46, 51, 365
S.E.2d 746, 749 (1988). Use of the instruction at issue in this
case requires evidence from expert testimony supporting the
propositions that (1) there were "two or more alternative
courses of action," and (2) that "the profession recognized
[such alternative courses of action] as proper."
In objecting to this instruction, the Administrator argued
that, while the experts disagreed on whether or not Dr. Jones
violated the standard of care, there was no evidence presented
that the standard of care involved two or more alternative
courses of action recognized by the profession. We agree with
the Administrator.
The record shows that the expert witnesses agreed that the
standard of care was "the degree of skill and diligence in the
care and treatment of his patients that a reasonably prudent
doctor in the same field of practice or specialty in this state
would have used under the circumstances of this case." The jury
3
MCV Hospital, Dr. Richard Schieken, and Dr. Richard Embrey
were also named as defendants, but were dismissed from the case
4
was instructed on this standard of care in Instruction 12. The
Administrator's expert witnesses opined that Dr. Jones violated
the standard of care by failing to obtain Nicholas' medical
history from MCV Hospital and instead instructing Nicholas'
mother to contact the treating physicians at MCV Hospital; by
conducting a heart examination of a struggling, crying child by
percussion; by failing to determine a change in heart size
through an x-ray; by terminating the Lasix medication and
prescribing Phenergan to a child less than two years of age; and
by failing to include pericardial effusion or congestive heart
failure in his diagnosis.
Dr. Jones' expert witnesses opined that Dr. Jones did not
violate the applicable standard of care because (1) an x-ray or
echocardiogram was not required under the circumstances; (2)
instructing the mother to contact the child's physicians at MCV
Hospital was sufficient and those physicians could have
contacted Dr. Jones if they "had any other questions;" (3) the
child's past and current medical history and the physical
examination supported a diagnosis of gastritis; and (4)
terminating the Lasix medication and prescribing Phenergan to
stem the vomiting was reasonable.
All of this testimony addressed whether Dr. Jones' actions
complied with the applicable standard of care. The expert
following a settlement.
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witnesses did not agree that professionally accepted alternative
procedures under the circumstances allowed Dr. Jones to order an
x-ray or conduct only a percussive physical examination; the
experts did not agree that Dr. Jones could either contact
Nicholas' treating physicians or have Nicholas' mother contact
those physicians; the experts did not agree that the Lasix
medication could either have been terminated or continued under
the circumstances, nor did they agree that Phenergan could
either be prescribed or not be prescribed for a child of
Nicholas' age; and, finally, the experts did not agree that
reaching a diagnosis of either gastritis or pericardial effusion
would comply with the applicable standard of care. There was
absolutely no expert testimony or other evidence that "two or
more alternative courses of action were available" and "would be
recognized by the profession as proper" in the course of the
diagnosis and treatment of Nicholas on April 21, 1995.
King v. Sowers, 252 Va. 71, 471 S.E.2d 481 (1996), relied
upon by Dr. Jones, does not require a different result. In
King, the instruction at issue referenced a "difference in views
[among] practitioners as to treatment, or as to medical judgment
exercised." Id. at 77, 471 S.E.2d at 485 (internal quotations
omitted). The Court in King found that the evidence did
establish a "difference in views" among the experts and thus
supported the instruction, even though the instruction itself
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was an incorrect statement of the law. 4 Id. In the instant
case, Instruction R would only have been proper if there was
evidence to support a finding that alternative procedures "would
be recognized by the profession as proper." As discussed above,
the evidence in this case failed to show that the experts
"recognized" or agreed that alternative procedures were proper.
For the above reasons we hold that the trial court erred in
granting Instruction R. Accordingly, we will reverse the
judgment of the trial court and remand the case for a new trial.
Reversed and remanded.
4
In King, the Court stated that the instruction was an
incorrect statement of the law, but no objection to the content
of the instruction had been raised in the trial court. King v.
Sowers, 252 Va. at 76–77, 471 S.E.2d at 484. As in King, the
Administrator in this case did not challenge Jury Instruction R
on the basis of its legal content.
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