Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Koontz, JJ., and Whiting, Senior Justice
SHIRLEY DICKERSON
OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
v. Record No. 961531
April 18, 1997
NASROLLAH FATEHI, M.D., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Thomas V. Forehand, Judge
In this medical malpractice action, the trial court, relying
solely upon the pleadings and certain pretrial discovery
material, granted summary judgment in favor of a physician and
two nurses. The court ruled, inter alia, that expert testimony
was necessary to establish the appropriate standards of care and
breaches thereof, and the principal issue in this appeal is
whether that ruling was erroneous.
Shirley Dickerson filed this action against Nasrollah
Fatehi, M.D., a neurosurgeon, and his professional entity,
Atlantic Neurosurgery, P.C. (collectively, Fatehi), and against
Rachel Jacobs, R.N., and Millicent P. Spruill, ORT. 1 Dickerson
alleged that, on February 27, 1989, she was admitted to
Chesapeake General Hospital for neck surgery to be performed by
Fatehi. The next day, Fatehi, assisted by Jacobs, the
circulating nurse, and by Spruill, the surgical technician who
acted as the scrub nurse, performed an anterior cervical
diskectomy.
1
Dickerson also filed this action against Chesapeake General
Hospital. In a separate action which was consolidated with this
suit, Dickerson sued Edward Habeeb, M.D., and his professional
entity, Orthopaedic Surgeons, Ltd. (collectively, Habeeb). On
Dickerson's motion, however, Habeeb and the Hospital were
nonsuited.
Dickerson further alleged that, during the course of the
surgery, Fatehi "used a blunt tip 18 gauge hypodermic needle,
including [a] plastic attachment to the syringe, as a metallic
marker [which] . . . was intended to be removed prior to closure
of the operative site." Fatehi, however, negligently "failed to
remove [the] hypodermic needle" from Dickerson's neck at the
close of surgery, and Jacobs and Spruill, in violation of their
duty of care, negligently failed "to maintain a proper needle
count . . . [to] ensure the removal of the needle" after surgery.
Following the surgery, Dickerson allegedly experienced
"severe pain . . . [in] her right arm, hand and neck." Fatehi
referred her to Dr. Edward Habeeb, an orthopedic surgeon. Habeeb
ordered x-rays of Dickerson's neck and shoulder, but was unable
to determine the cause of her pain. He referred her to Fatehi
for therapy.
Approximately 20 months after the surgery, Dr. Thomas Queen,
a general surgeon, discovered and removed the needle, including
the plastic attachment to the syringe, from Dickerson's neck.
Dickerson alleged that the negligence of Fatehi, Jacobs, and
Spruill (collectively, the Defendants) was a proximate cause of
her injuries.
Responding to the Defendants' pretrial discovery requests
that Dickerson identify the expert witnesses she expected to call
at trial, Dickerson named only a psychiatrist/neurologist and a
radiologist. Dickerson had not named any other expert witnesses
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when the court-ordered discovery cut-off date arrived.
The Defendants moved for summary judgment on the ground that
the two experts named by Dickerson were not qualified to testify
on the appropriate standards of care. 2 The trial court agreed
and granted summary judgment in favor of the Defendants. At the
same time, the trial court rejected Dickerson's contention that
the doctrine of res ipsa loquitur applied. The court reasoned
that Dickerson's pleadings and "the undisputed facts" showed that
the needle marker "was not in the exclusive control of any one
defendant."
Dickerson contends, on appeal as she did in the trial court,
that, based upon the facts shown by her pleadings and the
Defendants' admissions, expert testimony is not necessary to
establish the appropriate standards of care and breaches thereof.
Dickerson asserts that "whether a reasonably prudent
neurosurgeon . . . should account for and remove a hypodermic
needle from a patient's body before closing the operative wound
is within the range of common experience of a jury." Similarly,
Dickerson also asserts that "whether a reasonably prudent
2
The Defendants relied upon Code § 8.01-581.20 regarding the
requisite knowledge, skill, and experience that a proffered
witness must have in order to qualify as an expert witness on the
appropriate standard of care. Code § 8.01-581.20, however, does
not require a plaintiff to present expert testimony in all
medical malpractice actions, Beverly Enterprises v. Nichols, 247
Va. 264, 269, 441 S.E.2d 1, 4 (1994), and, given our decision in
the present case, we do not reach the question whether the
proffered witnesses were qualified to testify as experts on the
standard of care.
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circulating nurse and scrub nurse . . . [made] and report[ed] an
accurate account of all needles . . . used during the surgical
procedure . . . [also is a matter] within the common knowledge
and experience of a jury."
In almost all medical malpractice cases, expert testimony is
necessary to assist a jury in determining a health care
provider's appropriate standard of care and whether there has
been a deviation from that standard. Raines v. Lutz, 231 Va.
110, 113, 341 S.E.2d 194, 196 (1986); Bly v. Rhoads, 216 Va. 645,
653, 222 S.E.2d 783, 789 (1976). In certain rare cases, however,
when the alleged negligent acts or omissions clearly lie within
the range of a jury's common knowledge and experience, expert
testimony is unnecessary. Beverly Enterprises v. Nichols, 247
Va. 264, 267, 441 S.E.2d 1, 3 (1994); accord Jefferson Hospital,
Inc. v. Van Lear, 186 Va. 74, 41 S.E.2d 441 (1947).
In considering a motion for summary judgment, a court must
adopt those inferences from the facts that are most favorable to
the nonmoving party, unless the inferences are forced, strained,
or contrary to reason. Carson v. LeBlanc, 245 Va. 135, 139-40,
427 S.E.2d 189, 192 (1993). "Summary judgment shall not be
entered if any material fact is genuinely in dispute." Rule
3:18.
This case did not go to trial; consequently, the record on
appeal is quite limited. In addition to Dickerson's pleadings,
the record discloses that Fatehi's attorney conceded in argument
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before the trial court that "anybody . . . without regard to any
medical training would be able to say that unless the object left
in the patient has some therapeutic value, you don't leave a
foreign object in the body."
Furthermore, Dickerson submitted the following request for
admission to Fatehi:
15. Admit that it was your responsibility as
surgeon to remove after surgery the 18 gauge blunt tip
hypodermic needle placed in . . . Dickerson's neck
during anterior cervical diskectomy surgery . . . .
Fatehi responded as follows:
15. Denied. It was the obligation of Dr. Fatehi
to remove the needle, as he did, prior to the removal
of the disk. The request implies the needle was to be
removed only after the surgery was performed. Dr.
Fatehi relies on the counts of the hospital's OR
Technician and circulating nurse at the end of the
operation and prior to closing the wound, which counts
indicated all needles were accounted for and none was
in the surgical wound site and he believed that the
counts necessarily included the needle.
In the present case, based upon the record before us, we are
of opinion that, if the facts alleged and admitted by Fatehi were
presented to a jury, the jurors, absent expert testimony,
reasonably could determine, by calling upon their common
knowledge and experience, whether Fatehi was negligent and
whether his negligence was a proximate cause of Dickerson's
injuries. Therefore, the trial court erred in ruling that expert
testimony was necessary to establish the standard of care.
With respect to Jacobs and Spruill, we conclude that the
record has not been developed sufficiently to enable either the
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trial court or this Court to determine that the alleged
negligence does not lie within a jury's common knowledge and
experience so that expert testimony is necessary. Therefore, the
trial court acted prematurely in entering summary judgment in
favor of Jacobs and Spruill. Likewise, the record has not been
developed sufficiently to enable either the trial court or this
Court to determine whether the doctrine of res ipsa loquitur is
applicable. See Easterling v. Walton, 208 Va. 214, 216-17, 156
S.E.2d 787, 789-90 (1967) (doctrine applies where means or
instrumentality causing injury is in exclusive possession and
control of person charged with negligence).
Accordingly, we will reverse the trial court's judgment and
remand the case for further proceedings consistent with this
opinion. 3
Reversed and remanded.
3
We need not consider whether the trial court abused its
discretion in refusing to permit Dickerson to supplement her
discovery answers by naming additional expert witnesses because
the case will be remanded for further proceedings. Upon remand,
the court should establish a new date for the completion of
discovery, and, therefore, the issue is moot.
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