Bryan v. Burt

Present: All the Justices

CINDY L. BRYAN,
PERSONAL REPRESENTATIVE, ETC.

OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 961409 June 6, 1997

STEVEN BURT, D.O., ET AL.

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
James H. Chamblin, Judge

The main appellate issue in this wrongful death action,

alleging medical malpractice against both an emergency room

physician and a family practitioner, is whether the trial court

erred in striking the plaintiff's evidence at the close of the

plaintiff's case-in-chief.
Appellant Cindy L. Bryan, who sues as "Personal

Representative and Administratrix of the Estate of Shirley A.

Robertson, deceased," filed a motion for judgment against

appellees Steven M. Burt, D.O., and Eric J. Maybach, M.D.,

seeking damages for the alleged wrongful death of the decedent.

The plaintiff alleged that the decedent came to a hospital

emergency department complaining of severe abdominal pain. She

alleged that Burt, the emergency room physician, diagnosed

constipation as the cause of the pain when it actually was due to

a perforated ulcer. The plaintiff alleged Burt discharged the

decedent from the hospital after several hours of examination and

treatment.

Subsequently, the plaintiff alleged, when the pain did not

subside, the decedent's family contacted the office of Maybach,

the decedent's family physician. The plaintiff further alleged
that as the result of Burt's misdiagnosis, which Maybach "knew or

should have known of," the decedent's condition worsened and she

died several months later while a patient in another hospital.

In a grounds of defense, Burt denied the plaintiff's

allegations of negligence. Maybach filed a grounds of defense

also denying he was negligent because "he was not involved in the

care and treatment of" the decedent on the day of the alleged

misdiagnosis.
Following presentation of the plaintiff's case-in-chief

during a four-day jury trial in March 1996, the trial court

sustained the defendants' respective motions to strike the

evidence. We awarded the plaintiff an appeal from the trial

court's April 1996 order entering summary judgment in favor of

the defendants.

According to settled principles of appellate review

governing a case in which the plaintiff's evidence has been

struck at the close of the plaintiff's case-in-chief, we will

recite the essential facts in the light most favorable to the

plaintiff. Brown v. Koulizakis, 229 Va. 524, 526, 331 S.E.2d

440, 442 (1985).

The focus of this lawsuit is upon the events of December 13,

1992. Near 9:00 p.m. of that day, a Sunday, the plaintiff's

decedent, age 53, went to the emergency department of the

Fauquier Hospital in Warrenton, where she was examined and

treated by Burt. She complained of pain "covering the entire

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abdomen." The patient stated she had experienced "the acute

onset of the abdominal pain" about three hours earlier.

Upon examination, the patient's "vital signs" were normal.

She gave a history of peptic ulcer disease, hypertension,

headaches, "a cholesterol problem," and "problems with

constipation." She reported that she recently had been taking a

number of different medications.

Burt ordered "lab work" and x-rays that were "of a standard

nature" and "normal in this sort of situation." Upon making a

diagnosis of constipation, the physician ordered injection of a

pain relieving drug, Toradol, and giving of "a high soapsuds

enema" about 10:00 p.m. Near 11:30 p.m., the patient began

receiving "IV fluids, to run at approximately 500 cc's an hour."

About 35 minutes later, she was given "an oil retention enema."
The patient was discharged near 1:00 a.m. on December 14.

Upon discharge, Burt instructed the patient to drink "lots of

water," to pursue a "high fiber diet," to take specified doses of

mineral oil, and "if no bowel movement" resulted, to take "8 oz.

of citrate of Magnesia." She was told to return to the emergency

room "if fever or any vomiting" developed and to "follow-up" with

her personal physician on December 14 or 15 "for recheck" of her

blood pressure.

The patient returned to her home, accompanied by her

daughter. The pain continued, preventing the patient from

sleeping. Over the course of the next few hours, she took the

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prescribed doses of mineral oil. The pain did not subside and

the medication did not produce a bowel movement.

Before noon on December 14, the daughter called Dr.

Maybach's office because the patient "wasn't feeling better."

The daughter spoke with the physician's receptionist. The

daughter called Maybach's office again near 3:00 p.m. on the

14th, and the receptionist relayed a recommendation from

Maybach's nurse suggesting a laxative and an enema. Maybach was

not present in his office when either call was received, and

there was no request during either call for the physician to call

the daughter.
Near 4:00 p.m. on December 14, the patient "started getting

worse." She "started looking bad" and began "[g]asping for air."

About 8:35 p.m., the daughter took her to the emergency room of

the Fauquier Hospital, where the patient went into shock and was

seen by Dr. Fortune Odend'hal.

Within hours, Dr. J. Paul Wampler performed exploratory

abdominal surgery on the patient. As a result, she was diagnosed

as having a perforated pyloric ulcer and acute respiratory

distress syndrome (ARDS). A plaintiff's medical expert testified

the ulcer perforated about 6:00 p.m. on December 13.

Following surgery, the patient's condition "stabilized" and

she was admitted to the hospital. The patient remained there

until she was transferred to the University of Virginia Medical

Center at Charlottesville on February 5, 1993, where she died 20

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days later. According to a plaintiff's medical expert, the cause

of death was ARDS and respiratory failure. He testified that the

ARDS was caused by the perforated pyloric ulcer.

Three medical experts testified for the plaintiff: Dr.

Frederick L. Glauser, who is "Board Certified in internal

medicine, pulmonary and critical care medicine"; Dr. Philip G.

Leavy, an expert in "emergency medicine"; and Dr. Robert Bowman,

a "family practitioner of general medicine" presently employed in

a hospital emergency department. The plaintiff proffered Glauser

as a so-called "causation witness" and Leavy as a so-called

"standard of care" expert in emergency medicine; neither

purported to express an opinion on the alleged malpractice of

defendant Maybach.
Glauser's testimony can be summarized as follows. From a

review of the medical records, he said "the medically initiating

cause" of the decedent's death "was a perforated pyloric ulcer."

Relying, in part, on his study of the pertinent x-rays, the

witness opined that the ARDS began with the perforation of the

ulcer at 6:00 p.m. on the 13th. He said there was a progression

from the perforated ulcer to the ARDS to the death. Glauser's

opinion was that the decedent had a 90 to 95 percent chance of

survival at 6:00 p.m. on the 13th, a 75 to 80 percent survival

chance on the 14th, and a 40 to 50 percent chance of survival on

the 15th.

The trial court restricted Glauser's testimony on the basis

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that he was attempting to offer opinions as a "standard of care"

witness and not as a "causation" witness. That action of the

court is the subject of an assignment of error. We shall not

address the substance of the issue because any error committed by

limiting the testimony was harmless; the expert fully expressed

his views and the excluded information was supplied by the

plaintiff's other experts.

Leavy's "standard of care" testimony can be summarized as

follows. He opined that Burt "violated the standard of care in

his emergency room examination" of the decedent "on several

occasions in several areas of his care" for her.
Specifically, the witness said, Burt failed "to appreciate

the significance of the complaint of the abrupt onset of pain in

the abdomen"; he "failed to appreciate the medication[s] she was

taking and failed to get a history of . . . how often she had

been taking them"; he failed to recognize she was being treated

with a combination of medications that had a propensity to worsen

ulcers; and Burt "turned away from the chief complaint and

focused on the chronic constipation problem that she had."

In addition, the expert opined that Burt should have noticed

"free air," an abnormal condition, in the decedent's abdomen that

was revealed on the x-rays taken on the 13th. The witness'

"impression" was that most patients with "perforated ulcers will,

in fact, have free air." Also, the witness said Burt's conduct

fell below the standard of care by not monitoring more frequently

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the patient's vital signs during her four-hour emergency room

stay on the 13th.

Bowman, proffered as a witness to testify about "the medical

care" provided by both defendants to the decedent, opined that

both "acted below the standard of care." Bowman's opinions on

Burt's conduct were essentially the same as Leavy's. Focusing

on the allegations against Maybach, who had been the decedent's

family doctor for 18 years, Bowman criticized Maybach's

prescription of certain medications in the past as inconsistent

with "good care." He also testified: "In the care of her

problem that brought her to the emergency room, I think there was

an opportunity to have made the care for her in the emergency

room to be more directed toward problems that might have

diagnosed her correctly had communication been given."

Continuing, he said: "I don't have enough information to be able

to know what the communication was."
Additionally, the expert said that, upon the decedent's

release from the emergency room following her stay on the 13th,

Maybach's "office was contacted on two separate occasions and the

information that was given was that she was continuing to have

abdominal pain," and the suggested treatment was to "relieve what

was diagnosed as a constipation problem." The witness said

Maybach acted below the standard of care because there was no

suggestion during the two calls "that she should be reexamined,

either by himself or by going back to the hospital."

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 Also, the witness opined that the standard of care was

violated when, assuming Maybach was not in the office when either

telephone call was received, Maybach's receptionist or nurse

failed "to obtain medical help" for the decedent when her

daughter called. The witness said a prudent physician should

establish "guidelines" for the office staff to cover such

situations. The expert admitted, however, that if Maybach's

staff had urged the decedent to return to Fauquier Hospital's

emergency room on the 14th, the standard of care would have been

met.
As we have said, the main question on appeal is whether the

trial court erred in striking the plaintiff's evidence. The

issues to be decided under this broad question are whether there

was sufficient evidence of primary negligence, in the case of

defendant Maybach, and of proximate cause, in the case of both

defendants, to have carried those issues to the jury.

The applicable law is settled. A physician is neither an

insurer of diagnosis and treatment nor is the physician held to

the highest degree of care known to the profession. The mere

fact that the physician has failed to effect a cure or that the

diagnosis and treatment have been detrimental to the patient's

health does not raise a presumption of negligence. Nevertheless,

a physician must demonstrate that degree of skill and diligence

in the diagnosis and treatment of the patient which is employed

by a reasonably prudent practitioner in the physician's field of

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practice or specialty. Brown, 229 Va. at 532, 331 S.E.2d at 445.

See Code § 8.01-581.20.

In medical malpractice cases, a plaintiff must establish not

only that a defendant violated the applicable standard of care,

and therefore was negligent, the plaintiff must also sustain the

burden of showing that the negligent acts constituted a proximate

cause of the injury or death. Thus, in a death case, if a

defendant physician, by action or inaction, has destroyed any

substantial possibility of the patient's survival, such conduct

becomes a proximate cause of the patient's death. Brown, 229 Va.

at 532, 331 S.E.2d at 446. Accord Poliquin v. Daniels, 254 Va.

___, ___, ___ S.E.2d ___, ___ (1997), decided today.

First, we shall consider the case against Dr. Burt. He does

not dispute that the plaintiff presented expert testimony which

showed he breached the standard of care and which showed the

cause of the decedent's death. However, he contends the

plaintiff failed to "present any expert testimony linking these

two events."

The plaintiff argues that "proximate cause was shown by

expert testimony of a loss of substantial possibility of Mrs.

Robertson's survival." We do not agree.

Certainly, the plaintiff presented evidence that Burt's

failure to diagnose the perforated ulcer on December 13

constituted a violation of the standard of care, and that her

chances of survival diminished from 90 to 95 percent on the 13th

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to 40 to 50 percent on the 15th. Nonetheless, the plaintiff

failed to present evidence of any course of treatment which

should have been pursued on the 13th, given a diagnosis of a

perforated ulcer, that would have increased the decedent's

chances of survival. Affording the plaintiff benefit of all

possible inferences, one could infer from the events of the 14th

that, if the condition had been properly diagnosed on the 13th,

the decedent would have been referred to a surgeon who would have

been responsible for her care. But the record is silent about

the details of that care and its possible effect on the patient's

health.
This case is unlike Hadeed v. Medic-24, Ltd., 237 Va. 277,

377 S.E.2d 589 (1989); Brown, supra; and Whitfield v. Whittaker

Mem'l Hosp., 210 Va. 176, 169 S.E.2d 563 (1969), relied on by the

plaintiff. In each of those cases, holding proximate cause to be

a jury issue, the plaintiff presented testimony to establish the

nature of the treatment the decedent could have undergone had the

diagnosis been correct and the probability that such treatment

would have extended the decedent's life.

For example, in Hadeed, the defendant physicians were
charged with negligently failing to timely diagnose and treat a

decedent's coronary artery disease. According to the evidence,

treatment in the form of medication or bypass surgery would have

improved the decedent's chance of survival. There, we said:

"Likewise, proximate cause was a jury question. [The plaintiff]

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presented evidence that the doctors' failure to meet the

applicable standard of care destroyed any substantial possibility

of [the deceased's] survival. A jury reasonably could find that

with bypass surgery [the deceased] would have had an 85-90

percent chance of living to age 70. With only medical therapy,

he would have had a 50 percent chance of living to age 60." 237

Va. at 286-87, 377 S.E.2d at 594.

Likewise, in Brown we stated: "Prompt diagnosis of the

presence of the clot, which existed at least 48 hours before the

death, would have enabled the orthopedist to administer treatment

in the form of medication which would have substantially

increased the patient's chances of living, according to the

testimony. This was evidence of proximate cause." 229 Va. at

533, 331 S.E.2d at 446.
Consequently, we hold that the trial court did not err in

granting Dr. Burt's motion to strike the plaintiff's evidence.

Second, we shall address the case against Dr. Maybach. The

essence of the plaintiff's criticism of Maybach is that he

mismanaged the decedent's care prior to December 13, that he

should have communicated more of the patient's history to Burt,

and that the handling of the two telephone calls on the 14th by

Maybach's office staff was improper.

Even if we assume for purposes of this discussion that one

or more of those charges somehow support a finding of negligence,

nevertheless Maybach's alleged deviations from the standard of

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care were too remote as a matter of law to be causally related to

the decedent's death. Maybach never was afforded the opportunity

to see, diagnose, or treat the decedent on the 13th. He was

never asked to evaluate her complaints of pain on that day.

Actually, the evidence showed he was working at a Front Royal

hospital at the time. He was never asked to read the x-rays

which the plaintiff now argues showed free air in the abdomen

indicating a perforated ulcer.
The evidence shows that Maybach's only involvement with the

decedent on the 13th consisted of two telephone calls. In the

first call, he directed the patient to seek treatment at the

Fauquier Hospital because he was on duty in the Front Royal

hospital at the time. In the second call, Burt merely advised

Maybach that the patient had been seen, evaluated, and discharged

with a diagnosis of constipation.

When the telephone calls of the 14th were received, Maybach

was not in his office. The decedent's daughter was told,

according to the evidence, that if the patient's pain was severe

she should be brought to Maybach's office or returned to the

hospital. The daughter responded the family did not want to take

the patient back to the hospital. The daughter was asked if she

wished to leave a message for Maybach, and she declined to do so.

The patient never came to Maybach's office for treatment on the

14th.

In sum, as Maybach argues, his involvement with the decedent

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at the pertinent times "was simply too limited, too remote and

too indirect" to be causally connected to her death. Thus, we

hold the trial court did not err in granting Dr. Maybach's motion

to strike.

Finally, we reject the plaintiff's other assignments of

error. The trial court did not abuse its discretion in refusing

to allow the deposition testimony of a radiologist as part of the

plaintiff's case-in-chief. The focus of that area of inquiry was

upon what an emergency room physician should have seen and

evaluated on x-rays, not what an expert radiologist should have

seen and evaluated. And, the trial court properly excluded proof

of medical expenses that had not been linked causally to any

alleged malpractice of the defendants.
For these reasons, the judgment below in favor of the

defendants will be

Affirmed.

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