King v. Sowers

Present: All the Justices

JASON KING, AN INFANT, ETC.

v. Record No. 951688 OPINION BY JUSTICE BARBARA MILANO KEENAN
June 7, 1996
ANN B. SOWERS, M.D., ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Roy B. Willett, Judge

In this appeal of a judgment entered in a medical

malpractice action, we consider whether the trial court erred (1)

in instructing the jury regarding "acceptable and customary"

methods of treatment, and (2) in permitting certain testimony by

an ophthalmic pathologist, including his evaluation of a

computerized axial tomography (CT scan).
Jason D. King, an infant (King), filed an amended motion for

judgment by his next friend, Cheryl King, his mother, against Ann

B. Sowers, M.D., Ronald D. Harris, M.D., and Gill Memorial Eye,

Ear, Nose and Throat Clinic, P.C. (the defendants). King alleged

that the defendants were negligent in their treatment of a

dermolipoma, a benign tumor in his right eye.

King first sought treatment from Dr. Sowers for the

dermolipoma in 1988. The tumor was located on the posterior

region of King's eye and usually could not be seen unless the lid

was pulled away from the eye. A portion of the tumor, however,

was visible when King moved his eye in certain directions. In

these limited circumstances, someone observing his eye could see

what appeared to be a pink dot the size of a sharp pencil point.

Dr. Sowers diagnosed the tumor as a dermoid cyst, which does
not require treatment as long as it does not interfere with

vision and remains cosmetically unobjectionable. Dr. Sowers

instructed King to seek further treatment only if the tumor grew

so that it was visible without lifting the eyelid.

Dr. Sowers testified that when King returned for treatment

of his eye in April 1991, the tumor had not changed in appearance

or size. At that time, Dr. Sowers also observed that King's

visual acuity was normal for a child of his age.
Dr. Sowers stated that she told King's mother that removal

of the tumor was not indicated except for cosmetic reasons.

King's mother, however, testified that Dr. Sowers told her the

tumor had grown and needed to be removed. She further testified

that Dr. Sowers did not tell her that the surgery was indicated

solely for cosmetic reasons.

Dr. Sowers next testified that, in May 1991, she surgically

removed the tumor, which measured 1.5 centimeters by 1.2

centimeters by .7 centimeters. She stated that she removed the

tumor intact because, if the contents of a dermoid cyst spill

into the eye, it will become severely irritated.

The pathology report on the tumor indicated that it was a

dermolipoma rather than a dermoid cyst. Although these two types

of growths appear similar, a dermolipoma is a relatively solid,

homogenous mass, while a dermoid cyst has a more fluid center.

In excising a dermolipoma, only the visible portion of the tumor

should be removed. There is no danger of spilling the contents

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of a dermolipoma into the eye.

The pathology report also indicated that Dr. Sowers

inadvertently had removed a portion of King's lacrimal tissue

during the surgery. The removed tissue showed signs of scarring

and included lymphoid cells. These abnormalities in the lacrimal

tissue were unrelated to the dermolipoma in King's eye. The

scarring and presence of the lymphoid cells indicated that King's

lacrimal gland had been diseased prior to the excision of the

tumor.
Dr. Sowers testified that, in December 1991, King returned

complaining of severe pain in his right eye. At this time, she

observed that King's right cornea had become scratched. She

believed that the condition resulted from a chemical irritation

and advised King to continue the use of antibiotic eye drops that

she had prescribed earlier.

Later that month, King again consulted Dr. Sowers and

informed her that he was experiencing even more severe pain in

his right eye. He told Dr. Sowers that it felt like a "knife

sticking" in his eye. At that time, Dr. Sowers observed that the

cornea of King's right eye was heavily scratched, and that his

visual acuity in that eye was reduced. Dr. Sowers concluded that

this problem might have been aggravated by King rubbing the eye.

She advised King's parents to stop use of the eye drops and

placed a patch over his right eye to aid the healing process.

In January 1992, King sought treatment from two other

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ophthalmologists, Dr. David A. Kinsler and Dr. B. Allen Watson,

who concluded that the cause of King's severe pain was a

condition known as dry eye. This condition results from

insufficient lubrication in the eye, which causes intense pain

and may damage the surface of the eye.

In March 1992, King sought treatment from Dr. John D.

Gottsch at Johns Hopkins University Hospital. Dr. Gottsch

concluded that King had dry eye in both eyes. However, he found

that the condition was more severe in the right eye. Dr. Gottsch

attributed the more severe case of dry eye in the right eye to

the fact that Dr. Sowers had removed lacrimal tissue, the tissue

that produces tears for the eye, during excision of the

dermolipoma.
Dr. Gottsch testified that Dr. Sowers breached the standard

of care for an ophthalmologist in several aspects of her

treatment of King. First, he testified that she should not have

performed the surgery. He relied on the fact that the medical

records did not demonstrate that the tumor was harmful to King's

vision, or that the tumor impaired the physiology of his eye. In

addition, Dr. Gottsch testified that the medical records did not

indicate that the tumor was visible to common observation.

Therefore, he concluded that King's condition did not provide a

basis for the decision to remove the tumor.

Dr. Gottsch also testified that Dr. Sowers' surgical

technique failed to comply with the standard of care. He

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asserted that she should have recognized that the tumor did not

have the characteristic appearance of a dermoid cyst, should have

removed only a portion of the dermolipoma, and should not have

removed lacrimal tissue from the eye. In addition, Dr. Gottsch

stated that Dr. Harris, who assisted in the surgery, also

breached the standard of care for an ophthalmologist by failing

to recognize that the tumor was not dermoid in character.

Finally, Dr. Gottsch testified that Dr. Sowers and Dr.

Harris breached the standard of care in their postoperative

treatment of King. He stated that they should have observed from

the pathology report that Dr. Sowers had removed lacrimal tissue.

According to Dr. Gottsch, Dr. Sowers and Dr. Harris then should

have monitored King closely for dry eye and should have

recognized the symptoms as soon as they manifested themselves in

late 1991.
Dr. Sowers presented evidence that her treatment of King did

not constitute a breach of the standard of care. Dr. Earl R.

Crouch, Jr., an ophthalmologist, testified that King's dry eye

was not caused by the excision of lacrimal tissue, and that the

excision of this tissue did not harm King's eye. However, Dr.

Crouch also testified that the excision may have exacerbated the

dry eye.

Dr. Lorenz E. Zimmerman, an ophthalmic pathologist, reviewed

a CT scan and some tissue samples of King's dermolipoma and

lacrimal gland tissue. He testified that King's pain was caused

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by Sjogren's syndrome, an auto-immune disease characterized by

symptoms such as dry eyes, dry mouth, arthritis, and thyroiditis.

However, Dr. Zimmerman acknowledged that he had not reviewed the

results of tests given King, from which King's pediatrician, Dr.

William N. Gordge, had concluded that King did not have Sjogren's

syndrome.

Dr. Crouch and Dr. Michael A. Lemp, another ophthalmologist,

testified that King's medical history indicated that excision of

the tumor was appropriate to correct the appearance of his eye,

since his mother had requested the surgery. Dr. Crouch also

testified that the surgery performed by Dr. Sowers and Dr. Harris

met the prevailing standard of care for ophthalmologists in

Virginia. He stated that a dermoid cyst appears almost identical

to a dermolipoma and must not be opened during surgery. Dr.

Crouch concluded that Dr. Sowers and Dr. Harris properly removed

the tumor, and that their removal of a small portion of the

lacrimal gland during surgery did not constitute a deviation from

the standard of care.
Dr. Crouch also stated that the postoperative care given

King by Dr. Sowers and Dr. Harris met the standard of care. He

explained that, if dry eye had resulted from the surgery itself,

it normally would have appeared within about two weeks after the

May 1991 operation.

The jury returned a verdict in favor of the defendants. The

trial court overruled King's motion to set aside the verdict and

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entered final judgment for the defendants.

On appeal, King first asserts that the trial court

improperly granted jury instruction 12, which stated that
a mere difference in views between practitioners as to
treatment, or as to medical judgment exercised, is not
sufficient in itself to support an action for
malpractice where it is shown that the judgment
exercised is an acceptable and customary method of
performing the treatment, under the circumstances
presented to the treating physician.

King asserts that this instruction misstated the law and was

inapplicable under the evidence in this case.
In response, the defendants assert that King failed to

object to the instruction in the trial court on the ground that

it misstated the law, but only objected on the ground that the

instruction was inapplicable under the evidence presented.

Further, the defendants contend that the decision whether to

operate on King's eye, the determination of what portion of the

tumor to remove, and the postoperative care of King all involved

questions of medical judgment. Therefore, they argue that the

jury instruction was properly given under the facts of this case.

Initially, we agree with King that this instruction is an

incorrect statement of law. The relevant issue in a medical

malpractice action is whether the treatment rendered violated the

applicable standard of care and whether any such breach of the

standard of care was a proximate cause of the plaintiff's injury.

Rogers v. Marrow, 243 Va. 162, 167, 413 S.E.2d 344, 346 (1992);
Brown v. Koulizakis, 229 Va. 524, 532, 331 S.E.2d 440, 445-46

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(1985). An instruction to the jury regarding "an acceptable and

customary method of treatment" is inapposite to this

determination. See Nesbitt v. Community Health of South Dade,

Inc., 467 So. 2d 711, 714 (Fla. Dist. Ct. App. 1985).

Nevertheless, the instruction became the law of the case

because the objection at trial did not challenge the legal

content of the instruction. Medical Center Hosps. v. Sharpless,

229 Va. 496, 498, 331 S.E.2d 405, 406 (1985); Norfolk &
Portsmouth R.R. v. Barker, 221 Va. 924, 928, 275 S.E.2d 613, 615

(1981). Thus, without approving the instruction, we consider the

objection King raised in the trial court, namely, whether the

instruction was properly given under the evidence. See Banner v.

Commonwealth, 204 Va. 640, 646, 133 S.E.2d 305, 309 (1963).

At trial, King objected to instruction 12 on the basis that

the evidence did not present a difference in medical views

regarding the treatment that should have been provided. King

further argued at trial, as he does on appeal, that the evidence

showed only an absence of acceptable treatment by the defendants.

We disagree.

The evidence presented a difference in views among the

experts as to the medical judgment and the treatment that the

defendants rendered. Dr. Gottsch testified that the decision to

remove the tumor was a breach of the standard of care, while both

Dr. Lemp and Dr. Crouch testified that the decision met the

standard of care for a treating ophthalmologist. Dr. Lemp and

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Dr. Crouch also testified that Sowers' decision to remove the

entire tumor did not constitute a breach of the standard of care,

while Dr. Gottsch stated that only the visible portion of the

tumor should have been removed. There was also conflicting

evidence regarding the issue whether the postoperative care that

Dr. Sowers and Dr. Harris gave King constituted a breach of the

standard of care.

This testimony plainly established a "difference in views

[among] practitioners as to treatment, or as to medical judgment

exercised." Thus, this language in instruction 12 addressed an

issue raised by the evidence, and we conclude that King's

argument on this ground is without merit.
King also contends that the trial court erred in permitting

Dr. Zimmerman to testify that the cause of King's dry eye was

Sjogren's syndrome. Dr. Zimmerman's conclusion was partially

based on his interpretation of a CT scan. King asserts that,

since Dr. Zimmerman is neither a radiologist nor a rheumatologist

who treats this type of auto-immune disease, * this testimony was

speculative, beyond the scope of his expertise, and highly

prejudicial. We disagree.

The issue whether a witness is qualified to express an

*
A rheumatologist generally treats Sjogren's syndrome, based

on the syndrome's characteristic symptoms of bilateral dry eye,

arthritis, and thyroiditis.

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expert opinion is a question submitted to the sound discretion of

the trial court. Maxwell v. McCaffrey, 219 Va. 909, 912, 252

S.E.2d 342, 344 (1979); Noll v. Rahal, 219 Va. 795, 800, 250

S.E.2d 741, 744 (1979). The record must show that the proffered

expert possesses sufficient knowledge, skill, or experience to

render him competent to testify as an expert on the subject

matter of the inquiry. Griffett v. Ryan, 247 Va. 465, 469, 443

S.E.2d 149, 152 (1994); Noll, 219 Va. at 800, 250 S.E.2d at 744.
Here, both parties agreed that Dr. Zimmerman is the leading

ophthalmic pathologist in the world. Dr. Zimmerman testified

that he regularly reviews CT scans, X-ray films, and other tests

in evaluating tissue samples for the presence of disease. He

explained that, although he has not had formal training in

radiology and does not consider himself an expert in that field,

he is able to read and interpret CT scans. Dr. Zimmerman further

stated that, if he is unable to read a CT scan, he consults with

a radiologist. However, he testified that he was able to read

and interpret the CT scans of King's eye without requesting a

radiologist's opinion. Dr. Zimmerman also indicated that, as a

pathologist, he is familiar with the cellular manifestations that

are characteristic of Sjogren's syndrome.

We conclude that the trial court did not err in permitting

Dr. Zimmerman's testimony on these issues, since the evidence

showed that he regularly evaluated CT scans in his pathology

practice, and that he has skill and experience in recognizing

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Sjogren's syndrome. See Lo v. Burke, 249 Va. 311, 318-19, 455

S.E.2d 9, 13-14 (1995). The fact that Dr. Zimmerman did not

qualify as an expert in radiology or rheumatology is relevant

only to the weight to be given his testimony by the trier of

fact.

For these reasons, we will affirm the trial court's

judgment.

Affirmed.

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