Atkinson v. Scheer

Present: All the Justices

WALTER ATKINSON, ADMINISTRATOR OF THE
ESTATE OF RUBY E. ATKINSON, DECEASED
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 972694 November 6, 1998

DANIEL W. SCHEER, D.O.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge

In this appeal of a judgment in a medical negligence

action, we consider whether the defendant was entitled to

present evidence that another doctor, who is not a party to

this litigation, breached the standard of care owed to a

patient.

Walter Atkinson, administrator of the estate of Ruby E.

Atkinson (Atkinson), filed a motion for judgment against

Daniel W. Scheer, a doctor of osteopathic medicine. The

estate alleged that Dr. Scheer breached the standard of care

owed to Atkinson and that her death was caused by Dr. Scheer's

negligence. Dr. Scheer filed a grounds of defense and denied

any acts of negligence.

During a jury trial, Dr. Scheer was permitted to ask the

plaintiff's expert witness, over the plaintiff's objection,

whether another physician who had also treated Atkinson had

committed acts of negligence. The trial court permitted Dr.

Scheer to elicit such testimony, and at the conclusion of the
trial, the jury returned a verdict in favor of Dr. Scheer.

The plaintiff appeals.

We will state the facts and all reasonable inferences

therefrom in favor of Dr. Scheer, the recipient of a jury

verdict confirmed by the trial court. Atkinson began to

experience symptoms of a heart attack around 5:00 p.m. on

September 12, 1994. She had pain and nausea, and she vomited.

She arrived at Richmond Memorial Hospital's emergency room at

6:50 p.m., and she complained of pain in her chest, neck, and

left shoulder.

An emergency room nurse placed Atkinson on oxygen,

extracted a blood sample from her, and connected her to a

continuous heart monitor. The nurse gave Atkinson certain

fluids intravenously and attached her to an

electrocardiograph. Dr. Scheer examined Atkinson around 7:15

p.m., performed a physical evaluation, and ordered certain

diagnostic tests.

Dr. Scheer testified that even though he did not make a

final diagnosis of Atkinson on September 12, he made a working

diagnosis that "her etiology was probably cardiac in origin,

probably cardiac ischemia." Dr. Scheer stated that a working

diagnosis is "the one most likely to be what was going on with

the person." Dr. Scheer described an ischemia as "a lack of

oxygen going to the heart."

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 Subsequently, Dr. Scheer ordered that a patch of

nitroglycerin paste be placed on Atkinson's chest to be

absorbed through her skin into her body. The nitroglycerin

paste dilated her blood vessels, thereby reducing the strain

on her heart which, in turn, decreased her heart's need for

oxygen. According to Dr. Scheer, after the nitroglycerin

paste was administered, Atkinson's pain abated. Atkinson's

daughter, however, testified that her mother continued to

experience pain.

Dr. Scheer ordered a blood test to ascertain the presence

of enzymes in Atkinson's body which would have been indicative

of heart damage. Dr. Scheer had not received the results of

the blood test when his emergency room shift ended at 10:00

p.m.

Dr. Scheer also contacted Dr. Selwyn Goodwin by

telephone. Dr. Goodwin was a physician who was "on call" for

Atkinson's regular treating physician. Dr. Goodwin was aware

of Atkinson's past history of pulmonary embolism, a condition

which could also cause chest pain. Dr. Goodwin suggested to

Dr. Scheer that he order a ventilation protrusion scan which

would detect the presence of this condition. This scan is

commonly referred to as a VQ scan. The scan was performed,

but the results were not available when Dr. Scheer's shift

ended.

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 When Dr. Scheer left the emergency room at about 10:00

p.m., Dr. Gayle Wampler-Adams, another emergency room

physician, began treatment of Atkinson. Dr. Wampler-Adams

testified that it was her "recollection . . . that [Atkinson]

had been cleared for discharge, that we were awaiting VQ scan

results as a final diagnostic test."

Dr. Wampler-Adams received the results of the VQ scan,

which were negative. Dr. Wampler-Adams spoke with Atkinson,

performed a physical examination, and reviewed the EKG and

laboratory results available to her. Dr. Wampler-Adams noted

in the emergency room record that her diagnosis of Atkinson's

condition was "[a]typical chest pain, probable GE Reflux."

Dr. Wampler-Adams also spoke by telephone with Dr. Goodwin.

Dr. Wampler-Adams discharged Atkinson at 11:40 p.m. that

night.

Dr. Wampler-Adams testified, without contradiction, that

she relied upon Dr. Scheer's "workup" of Atkinson when making

the decision to discharge Atkinson. Shortly after her

discharge, Atkinson began to experience symptoms associated

with a heart attack. She began to vomit, and she complained

of pain in her shoulder "down through her arm." Her regular

physician diagnosed her condition the next day as "a heart

attack in progress," and she was admitted to Richmond Memorial

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Hospital. She died on October 4, 1994, as a result of her

heart attack.

Dr. Scheer did not present any expert witnesses at trial.

His expert witnesses were disqualified from testifying in a

pretrial order.

Dr. David Munter, who qualified as an expert witness on

behalf of the plaintiff on the subject of "emergency room care

medicine," testified within a reasonable degree of medical

certainty that Dr. Scheer breached the standard of care owed

to Atkinson. Specifically, Dr. Munter testified that Dr.

Scheer had enough information to admit Atkinson as a patient

to the hospital and that he breached the standard of care in

failing to do so. Dr. Munter also opined that Dr. Scheer

should have been more aggressive in his treatment of Atkinson

and that Atkinson would have "had a very high probability of

surviving had she been admitted" to the hospital on the

evening she was treated in the emergency room and that her

"high likelihood of survivability was lost."

During Dr. Scheer's cross-examination of Dr. Munter, the

trial court permitted him to ask, over the plaintiff's

objection, whether Dr. Wampler-Adams, who had settled the

estate's claims against her, breached the standard of care

owed to Atkinson. Dr. Munter testified that Dr. Wampler-Adams

had breached the standard of care by discharging Atkinson.

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 Atkinson, relying upon Jenkins v. Payne, 251 Va. 122, 465

S.E.2d 795 (1996), argues that the trial court erred by

permitting Dr. Scheer to introduce evidence at trial that Dr.

Wampler-Adams was negligent in her care and treatment of

Atkinson. Dr. Scheer responds that the trial court properly

admitted this testimony in evidence because Dr. Wampler-Adams'

conduct was negligent and such conduct was a superseding

intervening cause of Atkinson's injury. We disagree with Dr.

Scheer.

In Jenkins, we considered "whether the trial court erred

in excluding from the jury's consideration (1) opinion

evidence that another physician, who had settled the

plaintiff's claim against him, was negligent in his treatment

of the decedent, and (2) the defendants' argument that the

settling physician was the sole proximate cause of the

decedent's death." Jenkins, 251 Va. at 124, 465 S.E.2d at

796.

Veronica L. Payne filed a motion for judgment against

Harold S. Jenkins, M.D., Jill W. York, R.N., P.N.P., Barry S.

Rothman, M.D., and Doctors Rothman, Grapin, and McKnight, P.C.

Payne alleged that these health care providers breached the

applicable standards of care owed to her. Payne died before

trial, and her husband, Troy R. Payne, the personal

representative of her estate, was substituted as plaintiff,

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and the motion for judgment was amended to allege a cause of

action for wrongful death.

Veronica Payne had Paget's Disease, which is a cancer of

the nipple and milk ducts. While this cancer remains non-

invasive, it grows slowly and is highly curable. There is

about a 90% survival rate for patients with Paget's Disease

who receive treatment before the cancer becomes invasive.

Veronica Payne first sought treatment for her breast

abnormalities when she was examined by York, a nurse

practitioner working under the supervision of Dr. Jenkins.

She was seen and treated twice by York, who referred her to a

dermatologist. Subsequently, Payne sought treatment from Dr.

Rothman, a gynecologist, who prescribed oral antibiotics and a

topical steroid to treat problems she was having with her

breast. Id. at 125-26, 465 S.E.2d at 797.

Payne made several additional visits to both York and Dr.

Rothman because she was concerned about sores on her breast

which had not healed properly. Subsequently, York examined

Payne and discovered the presence of multiple masses in her

breast, and Payne was referred to a surgical oncologist, who

determined that she had aggressive cancer which had spread to

her lymph nodes. An expert witness testified at trial that

Payne's death was the result of a misdiagnosed breast cancer

and that she would have had a 10-year survival probability of

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about 90% had her cancer been diagnosed when it was still non-

invasive.

Before trial, the personal representative of Payne's

estate settled his claim against Dr. Rothman and his

professional corporation. The plaintiff made a motion in

limine requesting that the trial court exclude any opinion

evidence that Dr. Rothman was negligent in his treatment of

Veronica Payne. The defendants objected, asserting that their

defense would be based on a theory that Dr. Rothman's

negligence was the sole proximate cause of Veronica Payne's

death. The trial court ultimately granted the motion, ruling

that Dr. Rothman's conduct was "at the very best . . .

concurrent negligence as opposed to [superseding negligence]."

Id. at 124, 465 S.E.2d at 796.

On appeal, the defendants in Jenkins argued that the

trial court erred in refusing to permit them to present

testimony that Dr. Rothman breached the standard of care owed

to Payne because there was evidence that Dr. Rothman was the

sole proximate cause of Veronica Payne's death. Rejecting

their contentions, we stated the following principles which

are equally pertinent here.

"Issues of negligence and proximate causation
ordinarily are questions of fact for the jury's
determination. Brown v. Koulizakis, 229 Va. 524,
531, 331 S.E.2d 440, 445 (1985). A court decides
these issues only when reasonable persons could not

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 differ. Hadeed v. Medic-24, Ltd., 237 Va. 277, 285,
377 S.E.2d 589, 593 (1989).

"'The proximate cause of an event is that act
or omission which, in natural and continuing
sequence, unbroken by an efficient intervening
cause, produces the event, and without which that
event would not have occurred.' 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.
Panousos v. Allen, 245 Va. 60, 65, 425 S.E.2d 496,
499 (1993).

"In order to relieve a defendant of liability
for his negligent act, the negligence intervening
between the defendant's negligent act and the injury
must so entirely supersede the operation of the
defendant's negligence that it alone, without any
contributing negligence by the defendant in the
slightest degree, causes the injury. Id.; Coleman
v. Blankenship Oil Corp., 221 Va. 124, 131, 267
S.E.2d 143, 147 (1980); City of Richmond v. Gay, 103
Va. 320, 324, 49 S.E. 482, 483 (1905). Thus, a
superseding cause of an injury 'constitutes a new
effective cause and operates independently of any
other act, making it and it only the proximate cause
of injury.' Maroulis v. Elliott, 207 Va. 503, 511,
151 S.E.2d 339, 345 (1966)." (Emphasis added).
Jenkins, 251 Va. at 128-29, 465 S.E.2d at 799.

We applied these principles in Jenkins, and we held that

reasonable persons could not conclude from the evidence that

Dr. Rothman's negligence alone, without any contributing

negligence by the defendants in the slightest degree, caused

Payne's death.

We also note that we stated in Richmond v. Gay, 103 Va.

320, 324, 49 S.E. 482, 483 (1905):

"To be a superseding cause, whether intelligent or
not, it must so entirely supersede the operation of
the defendant's negligence, that it alone, without

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 the defendant's contributing negligence thereto in
the slightest degree, produces the injury." Accord
Panousos v. Allen, 245 Va. 60, 64-65, 425 S.E.2d
486, 499 (1993); Philip Morris, Inc. v. Emerson, 235
Va. 380, 397, 368 S.E.2d 268, 277 (1988); Cox v.
Mabe, 214 Va. 705, 708, 204 S.E.2d 253, 256 (1974);
Savage Truck Line v. Traylor, 193 Va. 579, 585-86,
69 S.E.2d 478, 482 (1952); Jefferson Hospital, Inc.
v. Van Lear, 186 Va. 74, 81, 41 S.E.2d 441, 444
(1947).

Applying the principles that we enunciated in Jenkins and

Gay, we hold, as a matter of law, that Dr. Wampler-Adams'

conduct was not a superseding intervening cause of Atkinson's

injury and, thus, the trial court erred by permitting Dr.

Scheer to elicit testimony of Dr. Wampler-Adams' negligence.

Dr. Scheer sought to relieve himself of liability for his

purported negligent acts because of a claimed superseding

intervening cause. Therefore, he was required to prove that

Dr. Wampler-Adams' failure to admit Atkinson to the hospital

entirely superseded the operation of Dr. Scheer's own alleged

negligence so that Dr. Wampler-Adams' negligence alone,

without any contributing negligence, even in the slightest

degree by Dr. Scheer, caused Atkinson's injuries. Dr. Scheer

failed to meet this burden.

The uncontradicted evidence of record demonstrates that

Dr. Scheer's alleged negligence contributed at least "in the

slightest degree" to Atkinson's death because Dr. Wampler-

Adams testified without contradiction that she relied upon Dr.

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Scheer's "workup" when she made the decision to discharge

Atkinson. Even though Dr. Wampler-Adams, just as Dr. Rothman

in Jenkins, had the last opportunity to take acts which would

have substantially increased the patient's probability of

survival, Dr. Wampler-Adams' failure to act did not entirely

sever the chain of proximate causation set in motion by Dr.

Scheer's alleged negligence.

Finding no merit in Dr. Scheer's remaining arguments, we

will reverse the judgment of the trial court and remand this

case for a new trial.

Reversed and remanded.

JUSTICE KOONTZ, with whom JUSTICE COMPTON and JUSTICE LACY
join, dissenting.

I respectfully dissent.

The parties agree on appeal, as they did at trial, that

the broad issue to be resolved is whether our decision in

Payne v. Jenkins, 251 Va. 122, 465 S.E.2d 795 (1996), is

controlling in the factual context of the present case. The

specific issue presented is whether it can be properly

determined as a matter of law that the conduct of Dr. Wampler-

Adams was not a superseding intervening cause or the sole

proximate cause of Ruby Atkinson’s death, or whether that

conduct created an issue of fact with regard to causation to

be determined by the jury. I dissent because the majority

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resolves that issue as a matter of law and, although

inadvertently, effectively invades the province of the jury.

As we initially noted in Jenkins, ordinarily issues of

negligence and proximate causation are questions of fact for

the jury’s determination and only become questions of law when

reasonable persons could not differ. “In order to relieve a

defendant of liability for his negligent act, the negligence

intervening between the defendant’s negligent act and the

injury must so entirely supersede the operation of the

defendant’s negligence that it alone, without any contributing

negligence by the defendant in the slightest degree, causes

the injury.” Jenkins, 251 Va. at 129, 465 S.E.2d at 799.

Guided by these well established principles, we held in

Jenkins that two medical practitioners were not entitled to

present opinion evidence that the negligence of a third

defendant, against whom claims had been nonsuited following

settlement of the claims against him, was the sole proximate

cause of the patient’s death. In that case, the evidence

showed that all of the defendants concurrently treated the

patient and were subject to the same standard of care of the

patient. Therefore, the evidence would not support a finding

that only the nonsuited defendant’s negligence contributed to

the patient’s death. Id. Accordingly, we agreed with the

trial court that while evidence establishing the facts

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surrounding the treatment of the patient by the nonsuited

defendant was admissible, id. at 124 n.1, 465 S.E.2d 796 n.1,

expert opinion as to whether he had breached the standard of

care in his treatment of the patient was irrelevant to the

issue of whether the defendants also were negligent in their

treatment of the patient.

I begin my analysis by noting the obvious distinction

between the factual context in which the causation issue

arises in the present case and that existing in Jenkins.

Unlike Jenkins, the present case does not involve concurrent

medical treatment of a mutual patient. Here, Dr. Scheer and

Dr. Wampler-Adams, while subject to the same standard of care

in their treatment of Atkinson, did not concurrently treat

her. Rather, Dr. Munter’s testimony established that,

consistent with the standard of care for patients in the

emergency room, Scheer’s treatment of Atkinson terminated at

the end of Scheer’s shift in the emergency room, and Atkinson

thereafter became solely the patient of Wampler-Adams.

This factual distinction is significant. This is

particularly so in light of plaintiff’s theory of liability

and additional undisputed facts in this case. The thrust of

plaintiff’s theory of liability is that Dr. Scheer was

negligent in failing to diagnose Atkinson’s cardiac condition

and, moreover, in failing to promptly admit her to the

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hospital for appropriate intensive cardiac care treatment.

Indeed, plaintiff called Dr. Munter, as an expert witness, in

support of that theory of liability. Dr. Munter, as noted by

the majority, opined that Dr. Scheer was negligent in not

admitting Atkinson to the hospital and that her very high

probability of survivability was lost because she was not

admitted to the hospital on the evening she was treated in the

emergency room.

However, Dr. Munter did not testify that this probability

of survivability was lost solely as a result of Dr. Scheer’s

failure to admit Atkinson to the hospital. At that point in

the succession of events to which Dr. Munter’s testimony

related, it is undisputed that when Dr. Scheer terminated his

treatment of her, Atkinson remained in the emergency room. In

addition, it is undisputed that Atkinson’s condition was then

stable. Plaintiff’s other expert witness, Dr. Archer

Baskerville, a board certified cardiologist, testified that

Atkinson had suffered an “incomplete heart attack” before

arriving at the emergency room and that the application of

nitroglycerin stopped the heart attack for the period during

which it was applied. Finally, it is also undisputed that Dr.

Wampler-Adams did not admit Atkinson to the hospital, but,

rather, after reviewing Dr. Scheer’s notes on Atkinson’s chart

and the results of prior tests, conducting a physical

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examination, and receiving the negative results from the VQ

scan, she discharged Atkinson with what proved to be an

erroneous diagnosis of “[a]typical chest pain, probable GE

Reflux.”

On cross-examination, Dr. Munter conceded that it was not

a breach of the standard of care for Dr. Scheer to turn the

treatment of Atkinson over to Dr. Wampler-Adams at the end of

his shift, but “it should never have reached that point.” As

Dr. Scheer’s counsel proceeded to question Dr. Munter about

Dr. Wampler-Adams’ treatment of Atkinson, plaintiff objected,

asserting that “[t]he case is not about Dr. Adams.” Dr.

Scheer contended that he was attempting to show a superseding

cause arising from the negligence of Dr. Wampler-Adams.

Plaintiff renewed the motion in limine and the trial court

replied, “I think that’s relevant,” and noted plaintiff’s

objection. Dr. Munter then testified that Dr. Wampler-Adams

had a duty to conduct her own examination and evaluation of

the patient and that, based on the information available, Dr.

Wampler-Adams or “anybody associated with this case in the

emergency department should have admitted” Atkinson.

It is then in this factual context, in contrast to that

in Jenkins, that the majority holds, as a matter of law, that

Dr. Wampler-Adams’ conduct was not a superseding intervening

cause of Atkinson’s death and, thus, that the trial court

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erred by permitting Dr. Scheer to elicit testimony of Dr.

Wampler-Adams’ negligence. The majority correctly notes that

Dr. Scheer had the burden to prove that Dr. Wampler-Adams’

failure to admit Atkinson to the hospital entirely superseded

the operation of Dr. Scheer’s own alleged negligence so that

Dr. Wampler-Adams’ negligence alone, without any contributing

negligence, even in the slightest degree, by Dr. Scheer,

caused Atkinson’s death. However, the majority then finds, as

a matter of law, that Dr. Scheer failed to meet this burden

because Dr. Wampler-Adams testified without contradiction that

she relied upon Dr. Scheer’s “workup” when she made the

decision to discharge Atkinson. In addition, the majority

reasons that even though Dr. Wampler-Adams had the last

opportunity to take acts which would have substantially

increased Atkinson’s probability of survival, Dr. Wampler-

Adams’ failure to act did not entirely sever the chain of

proximate causation set in motion by Dr. Scheer’s alleged

negligence.

The majority fails to consider the effect of the

testimony of Dr. Baskerville that the application of

nitroglycerin stopped Atkinson’s heart attack for the period

during which it was applied. This evidence establishes that,

at the time Scheer terminated his treatment of Atkinson, she

was in a stable condition and had not been discharged from the

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emergency room and was available to be admitted to the cardiac

unit of the hospital at that time by Dr. Wampler-Adams. These

facts distinguish this case from Jenkins. Moreover, they

create a jury issue on causation.

Dr. Wampler-Adams’ reliance upon Dr. Scheer’s “workup”

may well explain in part her decision to discharge Atkinson.

However, that reliance at best creates a factual issue whether

Dr. Wampler-Adams’ conduct was a superseding intervening cause

or the sole proximate cause of Atkinson’s death. This is so

simply because, on the evidence presented, reasonable persons

could have differed as to whether Dr. Wampler-Adams’ conduct

so entirely superseded the operation of Dr. Scheer’s failure

to admit Atkinson to the hospital, that it alone, without Dr.

Scheer’s alleged negligence contributing thereto in the

slightest degree, caused Atkinson’s subsequent death.

Accordingly, since a factual issue was presented in the

context of this causation issue, Scheer was entitled to

present expert opinion in support of his theory of non-

liability.

For these reasons, I would affirm the judgment of the

trial court.

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