Present: All the Justices
MARY H. NICHOLS
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 981388 April 16, 1999
KAISER FOUNDATION HEALTH PLAN
OF THE MID-ATLANTIC STATES, INC.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
Appellant Mary H. Nichols, the plaintiff below, had been a
patient and subscriber since at least 1990 of appellee Kaiser
Foundation Health Plan of the Mid-Atlantic States, Inc., a
defendant below. Kaiser operated various medical facilities
available to its subscribers, including pharmacies at Falls
Church and Reston staffed by its employees.
In this action for damages, the plaintiff alleged that
while being seen by a Kaiser physician in April 1995 for
respiratory disease she was given a prescription for medrol, a
steroid medication. The plaintiff further alleged that the
prescription was filled at Kaiser's pharmacy at Falls Church and
refilled at Kaiser's pharmacy at Reston during that month. She
also alleged that, without her knowledge, the pharmacies
negligently provided the wrong medication, namely dexamethasone,
a steroid five times more potent than medrol.
The plaintiff further alleged that in May 1995 she
discontinued taking the wrong medication and resumed taking the
correct medication. Thereafter, plaintiff alleged, she was
treated by Kaiser's physicians in an effort to relieve the
pronounced side effects she suffered from taking the wrong
medication.
The plaintiff also alleged that Kaiser's pharmacy employees
failed to comply with the applicable standard of care in the
dispensing of her prescriptions. As a result, plaintiff
alleged, she has suffered permanent injury, sustained expense,
and incurred other losses, for which she sought recovery in
damages.
In a grounds of defense, Kaiser admitted responsibility for
the conduct of its pharmacy employees who, acting within the
scope of their employment, dispensed medication to the
plaintiff. Kaiser also admitted that plaintiff had erroneously
been given dexamethasone, as alleged. Kaiser denied, however,
that the negligence of its employees proximately caused the
injuries and damages alleged by plaintiff.
In a March 1998 jury trial, the defendant moved to strike
the plaintiff's evidence both at the conclusion of the
plaintiff's case-in-chief and at the conclusion of all the
evidence. The grounds of the motions were, first, that the
plaintiff had not presented any expert testimony that the
pharmacists had breached the applicable standard of care and,
second, that the plaintiff failed to present expert testimony of
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causation, viz., that her "complaints were as a result of taking
dexamethasone."
The trial court denied the motions on the first ground,
ruling expert testimony was unnecessary because a jury could
understand, without the aid of such testimony, that dispensing
wrong medication is a breach of a pharmacist's standard of care.
The court took the second ground of the motions under
advisement, stating it was "concerned with the causation
testimony."
The jury found for the plaintiff, fixing her damages at
$75,000. The defendant renewed its motion to strike the
plaintiff's evidence and moved the court to set the verdict
aside.
Following briefing and argument upon the motions, the court
granted them "on the basis there was insufficient expert
evidence of causation." We awarded the plaintiff this appeal
from the April 1998 final judgment entered in favor of the
defendant.
The sole question presented is whether the trial court
erred in ruling there was insufficient expert evidence of
causation to present an issue for the jury.
Settled principles guide our consideration of the facts.
"When the verdict of a jury has been set aside by the trial
court, the verdict is not entitled to the same weight upon
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appellate review as one that has received the trial court's
approval. But in considering the facts under these
circumstances, the appellate court will accord the plaintiff
benefit of all substantial conflicts in the evidence and all
reasonable inferences that may be drawn from the evidence."
Commercial Bus. Sys., Inc. v. Halifax Corp., 253 Va. 292, 296,
484 S.E.2d 892, 894 (1997).
There are few conflicts in the evidence. The plaintiff's
medical evidence was presented through the testimony of Kaiser
employees supplemented by her Kaiser medical records. The focus
of the controversy is upon the two-month period of April-May
1995.
The plaintiff's principal witness was Dr. Ronald J.
Klayton, a Kaiser physician specializing in internal medicine
with a subspecialty in pulmonary diseases. He first treated her
on March 15, 1995 because her regular pulmonary physician was on
vacation. The plaintiff, born in 1932, came for treatment of
lung disease and sinus drainage.
The plaintiff's medical records, examined by Klayton,
revealed that her lung disease had been "severe in nature." At
the time, the plaintiff was taking a number of medications
including the steroid medrol, 16 milligrams (mg) per day, and
two other steroids. Following an examination of plaintiff,
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Klayton concluded she "had severe chronic obstructive pulmonary
disease."
During the first visit, Klayton advised her to double the
dose of medrol to 32 mg per day. He increased the dosage of
some of her other medications and prescribed an antibiotic.
Klayton understood that plaintiff had been taking various doses
of either medrol or prednisone, another steroid, for two or
three years.
On March 22, plaintiff returned to see Klayton. She was
"feeling better" and Klayton felt that her lung disease had
improved due to the increase of the medrol dose and institution
of the antibiotic. During that visit, the medrol dose was
reduced to 28 mg per day and she was started on another
medication to help loosen thick secretions.
On April 5, Klayton's "initial prescription" for medrol 4
mg tablets was filled for plaintiff at Kaiser's Falls Church
pharmacy. It was filled correctly as medrol but it was entered
into the pharmacy computer system incorrectly as dexamethasone 4
mg tablets. When plaintiff refilled the prescription on April
13 at Kaiser's Reston pharmacy, dexamethasone was dispensed, and
plaintiff began taking it. That medication is "about five times
as potent" as medrol, according to Klayton.
Plaintiff saw Klayton on April 5 and May 3. On May 3, he
diagnosed her as "having diabetes secondary to steroids."
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Klayton was unaware that plaintiff was "on dexamethasone."
According to Klayton's review of plaintiff's medical record,
prior to April 5 no physician had noted in writing in the record
a diagnosis of diabetes nor had any physician indicated in
writing in the record that he had undertaken to actively treat
her for diabetes.
On May 3, plaintiff "was upset over some bruises on her
skin" and Klayton observed "a hemorrhage underneath the skin.
It looks like a black and blue mark." Plaintiff's glucose level
was 314 according to one test and 392 according to another. The
"normal range" for a person like plaintiff was 118 and her
readings were "way too high," according to Klayton. He
immediately began treating plaintiff's diabetes and asked that
she return to see him the next day.
Upon plaintiff's return on May 4, Klayton learned that she
had been taking dexamethasone. He said she was taking 16 mg of
dexamethasone and getting the equivalent of 80 mg of medrol.
On that date, he noted in her record an "assessment" of
"dexamethasone induced hyperglycemia." He testified: "I
thought that the dexamethasone had induced her high blood
sugar." Elaborating, the physician stated: "I meant that she
had what's called secondary diabetes. In this case, secondary
to the use of a steroid."
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Klayton was asked: "So you assessed her as having a high
sugar level because of the dexamethasone she was taking?" He
answered: "Because that was the steroid she was taking. I mean
if she was on Medrol I would have blamed it on that. They both
can do it. But she was on dexamethasone."
Klayton was asked to describe the side effects he noticed
"as a result of the amount of dexamethasone she was taking if
she was substituting one dexamethasone tablet for one Medrol
tablet" for the period of time in question. He responded that
"the side effects are identical. It's only because she was on
dexamethasone that we can say they were due to the
dexamethasone."
Klayton then described the following side effects
experienced by plaintiff: Bruising, elevated blood sugar, being
emotionally distraught and depressed, difficulty in sleeping,
leg weakness, hip pain upon movement, swelling of her body,
extreme thinning of skin, and appearing "cushingoid." Klayton
described plaintiff's cushingoid appearance: "It's a plethoric
face. Weight primarily central, with thin arms and legs. And
there tends to be a deposition of fat over the upper part of the
back."
There was no reference in the plaintiff's medical record
from January 1, 1995 through April 4, 1995 "where a physician at
Kaiser assessed her as being cushingoid." On April 14, 1995, a
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Kaiser physician had written in her record, "Appears
cushingoid." There was no reference in her record prior to
April 5 "where a physician ha[d] made a physical exam and noted
the extreme thinning of her skin."
On May 4, Klayton asked plaintiff to "restart the Medrol in
a dose of 16 milligrams a day and stop the dexamethasone." He
examined her on May 8, May 10, and May 15.
On May 8, her blood sugar reading was 303 and her diabetes
"wasn't doing well." On May 10, her blood sugar reading was
"down to 144 . . . just getting close to the normal of 118." On
May 15, her diabetes was "well controlled." Plaintiff's last
visit to Klayton was on May 24, 1995; she "had a very prominent
cushingoid appearance."
The plaintiff, a school teacher, testified that: "Once I
got this wrong medication, this is when all these problems
started coming up one after another." She stated that during
the period from January to the end of March 1995, she "was doing
very good, except I usually would get sinus infections or
bronchitis. And then it would go to asthma." She was "doing
great" emotionally, she said.
She was asked to describe changes that took place in her
physical condition from April through the first few days of May
1995. She testified that she "became very hyper," that she
could not "seem to sit down at all," that she could not sleep at
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night, that she "started noticing this huge round face and these
big lumps on my neck," that her "stomach just started to
protrude," that she gained weight, that her "skin would just
split," and that she began "getting all these marks if I would
just bump against anything." She testified that "all this
started happening" at "the end of April."
The plaintiff's son testified he saw his mother, who lived
alone, at least weekly from 1994 through March 1995. According
to the son, during this period she was "fine" and worked daily
"at the schools," she "seemed healthy," and she was "very happy"
emotionally.
The son testified he observed his mother weekly during the
period April-May 1995. He corroborated the plaintiff's
testimony about the changes in her physical and emotional
condition during that period, adding that she began growing
facial hair.
The defendant presented the testimony of Kaiser physicians
who had treated the plaintiff from 1990 through 1996. In sum,
this testimony, as well as her medical record during that
period, revealed a continuing problem with emphysema (chronic
obstructive pulmonary disease) and chronic sinusitis. She had
been smoking one pack of cigarettes daily for 40 years.
In July 1991, a physician noted she had "[t]rouble with
steroids." In October 1992, a physician noted she was taking
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prednisone ("an oral steroidal medication"), was having
difficulty sleeping, and was feeling "hyper." In November 1992,
a physician noted the plaintiff "was still smoking." In January
1993, a physician found that plaintiff "has a lot of side
effects from taking Prednisone" such as "restlessness, insomnia,
[and] becoming hyper."
On August 16, 1993, plaintiff was prescribed medrol for the
first time, to replace prednisone. Several days later, her
physician decreased the dose of medrol from 40 mg to 32 mg daily
because she was "tolerating" the medication and "feeling much
better;" she was experiencing no "unpleasant side effects."
In April 1994, a physician noted plaintiff had gained
weight after having stopped smoking during the previous
September. In May 1994, plaintiff had been taking medrol 48 mg
daily for four days and reported complaints of "bloating" and
"being moody."
During the last six months of 1995 and during 1996,
plaintiff's physicians were of the opinion "that she developed
the diabetes or high glucose condition due to steroid." She had
become "steroid dependent" due to her lung disease because "her
condition would aggravate if she would try to come off the
steroid." She continued to exhibit many of the side effects
associated with steroid use to the time of trial.
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On appeal, urging affirmance of the judgment below,
defendant bases its argument on what it says is the following
question presented: "Is expert testimony required to
differentiate between the effects of taking dexamethasone in an
unknown quantity for an unknown number of days and the effects
related to continuing on medrol on a daily basis for at least
ten months, or is the difference sufficiently obvious to be
within common knowledge?" That is not the question presented.
Furthermore, the defendant builds its argument on a
contention never made in the trial court. Defendant argues
"[t]here was no evidence and no one knows how many of the wrong
pills Nichols took between April 13 and May 4, 1995, when the
error was discovered." Thus, defendant contends, "the jury was
forced to render a judgment based upon whatever they speculated
was the amount of dexamethasone consumed by Nichols." This
argument was not made in the trial court and we will not
consider it for the first time on appeal. Rule 5:25. Indeed,
the record establishes the plaintiff ingested at least 183
dexamethasone tablets during the 21-day period in question, an
average of about nine pills per day.
The proper question to be decided, as we have said, is
whether the trial court erred in ruling there was insufficient
expert evidence of causation to present an issue for the jury.
On the subject of causation, this case is a hybrid as it
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relates to the necessity of presenting expert testimony in
matters strictly involving medical science as opposed to
accepting testimony of lay or nonexpert witnesses who are
familiar with a person whose physical condition is in question.
See, e.g., Raines v. Lutz, 231 Va. 110, 113, 341 S.E.2d 194, 196
(1986) (expert testimony ordinarily necessary to establish that
health care provider's deviation from standard of care was
proximate cause of claimed damages); Todt v. Shaw, 223 Va. 123,
127, 286 S.E.2d 211, 213 (1982) (lay testimony of causal
connection between automobile accident and injury admissible
even when medical testimony fails to expressly establish such
connection); Roll 'R' Way Rinks v. Smith, 218 Va. 321, 330-32,
237 S.E.2d 157, 163-64 (1977) (causal connection between
accident and permanent disability factual matter for jury even
though medical testimony never "formally pronounced" such
connection); and Pepsi-Cola Bottling Co. v. McCullers, 189 Va.
89, 97-98, 52 S.E.2d 257, 260-61 (1949) (opinions of lay
witnesses on causation generally limited to opinions upon
physical condition and may not extend to matters determinable
only through peculiar experience, knowledge, and training of a
physician).
Here, plaintiff did not present expert testimony in the
strict sense of that term, that is, a witness was not formally
qualified who responded to hypothetical questions.
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Nevertheless, there was abundant opinion testimony from
plaintiff's treating physicians, particularly Dr. Klayton. In
addition, lay testimony was offered from the plaintiff and her
son upon the plaintiff's physical and emotional condition as it
appeared before and after the critical April-May 1995 period.
Consequently, the case reduces to whether there was
sufficient evidence, comprised of medical opinion and lay
testimony, to present a jury question on causation. We answer
that query in the affirmative; testimony from a "pure" expert
witness was unnecessary.
The evidence showed that, prior to April 1995, plaintiff
had suffered from a severe respiratory disease for at least five
years. She had been taking various steroid medications during
the five-year period and had experienced side effects to a
moderate degree sporadically during that time. She took medrol
for the first time on August 16, 1993. Over the next 20 months
until April 1995, she used medrol in varying doses and tolerated
the medication with few unpleasant side effects even though she
had a history of "trouble" with steroids. From January 1995 to
April 1995, she was "doing very good" physically, except for her
respiratory condition, and "doing great" emotionally.
Then, her health worsened dramatically. On April 13 she
began taking dexamethasone, a steroid five times as potent as
medrol, which Kaiser's Reston pharmacy negligently had furnished
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her on that day. The very next day, April 14, she appeared
cushingoid to a Kaiser physician. Her side effects were
exacerbated and multiplied to a degree more severe than ever
before. She testified that once she "got this wrong medication,
. . . all these problems started coming up one after another."
She said that "all this started happening" at "the end of
April."
On May 3, after taking heavy doses of the wrong medication
for 20 days, Klayton found her glucose level was "way too high."
The next day, May 4, Klayton discovered plaintiff had been on
the wrong medication. He was of the opinion that plaintiff
suffered from "dexamethasone induced hyperglycemia" and that
"the dexamethasone had induced her high blood sugar," as well as
the other severe side effects enumerated in his testimony.
This evidence, and the other facts in the trial record,
were sufficient to present a question for the jury upon whether
the defendant's negligence caused the effects of which the
plaintiff complains. One moment she was relatively well and the
next moment she was ill; intervening between those two
conditions was defendant's negligence. Thus, medical facts and
medical opinion combined with lay testimony, without the
addition of "pure" expert testimony, entitled the plaintiff to
have a jury weigh the evidence of causation, and the trial court
erred in ruling to the contrary.
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Hence, the judgment below will be reversed, the verdict of
the jury will be reinstated, and final judgment on the verdict
will be entered here.
Reversed and final judgment.
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Nichols v. Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc.
Combined Opinion