Present: All the Justices
LEONARD A. ROSEN, M.D., ET AL.
OPINION BY
v. Record No. 980371 JUSTICE LAWRENCE L. KOONTZ, JR.
February 26, 1999
DARLENE GREIFENBERGER
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
In this medical malpractice suit, we consider whether the
trial court erred in giving a jury instruction on a physician’s
duty to continue his services as long as they are necessary
where the evidence shows that another physician within the
treating physician’s group practice had been advised that the
patient might need additional care during the treating
physician’s temporary absence.
BACKGROUND
“According to settled principles of appellate review, we
will consider the evidence in the light most favorable to the
plaintiff, who comes to this Court armed with a jury verdict
approved by the trial judge.” Salih v. Lane, 244 Va. 436, 438,
423 S.E.2d 192, 194 (1992). The parties dispute much of the
evidence, including that relevant to the alleged primary
negligence of the treating physician. However, because we
awarded an appeal limited to the issue of whether a particular
jury instruction was proper, we will recount only those facts
relevant to our resolution of that issue. Jeld-Wen, Inc. v.
Gamble, 256 Va. 144, 146, 501 S.E.2d 393, 395 (1998).
Darlene Greifenberger first became a patient of Fairfax Ob-
Gyn Associates, P.C. (the group practice) in 1988. The group
practice, a Virginia professional corporation, is owned by and
operates the medical practice of three physicians: Felicia L.
Donald, M.D., Leonard A. Rosen, M.D., and Robert L. Castle, M.D.
In 1988 and 1989, Greifenberger was treated by all three members
of the group practice in relation to her pregnancy and the
successful delivery of her second child. Dr. Donald was
Greifenberger’s primary treating physician at that time, but Dr.
Rosen treated Greifenberger during some obstetrical visits, and
Dr. Castle delivered the child and administered Greifenberger’s
post-partum care.
Greifenberger continued as a patient of the group practice
after this pregnancy, and on occasion received treatment from
each of the three physicians. In April 1992, Greifenberger
requested that a Norplant contraceptive device be implanted.
Dr. Donald performed the necessary procedure and later treated
Greifenberger when she complained of complications from the
implant. Because of dissatisfaction with Dr. Donald’s
2
treatment, Greifenberger requested that she no longer receive
treatment from Dr. Donald. 1
On September 17, 1992, Greifenberger contacted the group
practice and advised a nurse there that she believed she was
pregnant and that she was considering terminating the pregnancy.
Dr. Rosen saw Greifenberger in the group practice’s office that
afternoon. A pregnancy test confirmed that Greifenberger was
pregnant. Based upon her report of the date of her last
menstrual cycle, Dr. Rosen estimated that the pregnancy was in
the seventh or eighth week of the first trimester. After
discussing the options for continuation or termination of the
pregnancy with Dr. Rosen, including the recommendation of the
manufacturer of the contraceptive device that it be removed if
the pregnancy were continued, Greifenberger indicated that she
wished to terminate the pregnancy through a therapeutic
abortion. The next day she completed the necessary consent
document and other paperwork required to schedule the abortion
procedure.
1
Greifenberger named Dr. Donald as an individual defendant
in the action from which this appeal arises, asserting that Dr.
Donald was negligent with respect to the implantation of the
contraceptive device, the follow-up treatment related thereto,
and Greifenberger’s unwanted pregnancy. The jury returned a
verdict in favor of Dr. Donald on these issues, and
Greifenberger has not appealed that aspect of the judgment.
Accordingly, the claims against Dr. Donald individually are no
longer at issue in this case.
3
On September 22, 1992, Greifenberger was admitted to Fair
Oaks Hospital as an outpatient under the care of Dr. Rosen to
terminate her pregnancy. After a general anesthetic had been
administered, but before the abortion procedure had been
started, Dr. Rosen determined from an assessment of uterine size
that the pregnancy was more advanced than he had previously
thought, estimating that it was in the twelfth to fourteenth
week of the first trimester. Because Greifenberger had been
unequivocal in stating her desire to terminate the pregnancy and
because the dilation and evacuation procedure Dr. Rosen intended
to perform is medically appropriate to terminate a late first
trimester pregnancy, Dr. Rosen decided to go forward with the
procedure.
During the procedure, however, Dr. Rosen determined that
the pregnancy had advanced beyond the fourteenth week. Because
a dilation and evacuation procedure is not medically appropriate
to terminate a more advanced pregnancy, Dr. Rosen discontinued
the procedure after approximately ten minutes. Knowing that the
procedure was incomplete, Dr. Rosen elected to send
Greifenberger “home with a medication called Methargen to cause
further medical uterine contractility to further expel whatever
remaining products of conception were left behind” in the
uterus. He also prescribed a “broad spectrum antibiotic in the
form of Keflex” to protect her from infection.
4
Dr. Rosen then contacted Greifenberger’s husband in the
hospital waiting room and told him that “the operation went
okay, that there [were] no problems.” Dr. Rosen further told
Greifenberger’s husband that Greifenberger “would pass a small
amount, a very small amount of tissue . . . that she might bleed
. . . a little heavier than her normal menstrual cycle.” Dr.
Rosen did not specifically advise Greifenberger’s husband that
the abortion procedure was incomplete.
Greifenberger was instructed by a hospital discharge nurse
to take additional doses of the antibiotics and Methargen and to
use a prescription pain medication as needed. She was further
instructed by the nurse to make an appointment with Dr. Rosen in
one week and to “notify your doctor if you have heavy vaginal
bleeding, severe abdominal pain or fever.” Greifenberger was
discharged from the hospital without having been informed that
the abortion procedure was incomplete. Although Dr. Rosen gave
her medication intended to induce uterine contractions and a
spontaneous abortion to expel the remaining fetal tissue, he did
not inform Greifenberger that he would be temporarily
unavailable to treat her or that, if necessary, Dr. Castle would
be treating her during Dr. Rosen’s absence.
Dr. Rosen was scheduled to attend a medical conference in
Chicago on the day following Greifenberger’s surgery and was to
leave that evening. Before leaving the hospital, Dr. Rosen
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contacted Dr. Castle, the only member of the group practice who
would be available for patient consultation and treatment that
night and for the next several days, and informed him that
Greifenberger’s pregnancy had been more advanced than had been
first thought. Dr. Rosen further advised Dr. Castle “to expect
a call” because “products of conception” had been left in the
uterus and that Greifenberger had been sent home with
antibiotics, pain medication, and the medication to cause
uterine contractions to expel the remaining tissue.
In the early morning hours of September 24, 1992,
Greifenberger contacted Dr. Castle complaining of “cramping” and
“slight bleeding.” Dr. Castle was “expecting” the cramping
because of the medication given to Greifenberger and advised her
to take the prescribed pain medication and come to the group
practice’s office the next day. Several hours later, her
husband took Greifenberger to the emergency room. At that time
she was in significant pain and had a temperature of 101. Dr.
Castle was called to the hospital and performed surgery to
complete the abortion.
On August 2, 1995, Greifenberger filed a motion for
judgment against the group practice and against Dr. Rosen
individually, alleging malpractice resulting from negligence or
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gross negligence. 2 Among the allegations of malpractice,
Greifenberger alleged that “Dr. Rosen’s post-operative care
manifested an utter disregard of prudence amounting to a
complete neglect of the safety of plaintiff and lacked due
care.”
After a period of extended discovery, a jury trial was held
in the trial court beginning on October 20, 1997. Evidence in
accord with the above recounted facts was received along with
expert testimony on the relevant standard of care from witnesses
for both parties. Dr. John Partridge, an expert witness for Dr.
Rosen, testified that the duty of continuing necessary treatment
does not require that physicians “be held hostage in our own
offices.” Rather, “[t]he standard of care requires that a
doctor have adequate backup, skillful backup, that there be a
communication flow on issues of importance between one doctor
and another [about what] the other doctor may have to handle.”
At the conclusion of the evidence, Greifenberger proffered
the following jury instruction:
A doctor who has accepted a patient for treatment
has a duty to continue his services as long as they
are necessary. A doctor may not abandon his patient
while the services are necessary, unless he gives
notice to the patient and makes arrangements for
2
Greifenberger also advanced theories of lack of informed
consent, battery, and emotional distress. Theses claims have no
direct relevance to the issue presented by this appeal.
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continuing treatment by another doctor. If a doctor
fails to perform this duty, then he is negligent.
The group practice and Dr. Rosen objected to the
instruction, contending that it was not appropriate because the
facts presented at trial did not establish a lack of continuing
care. Greifenberger contended that the instruction was
appropriate because even if Dr. Rosen’s association with the
group practice and his communication to Dr. Castle satisfied his
duty to continue necessary treatment, Dr. Rosen’s failure to
give notice to Greifenberger that he would not be available for
consultation and further treatment nonetheless constituted a
breach of that duty.
The trial court ruled that there was sufficient “evidence
upon which a correct statement of the law can be given” as to
the duty to continue necessary treatment. Based on this ruling,
the trial court granted Greifenberger’s proffered instruction.
The jury returned its verdict in favor of Greifenberger
against the group practice and Dr. Rosen, awarding her $175,000
in damages. By order dated November 21, 1997, the trial court
affirmed the jury verdict and award of damages. We awarded the
defendants this appeal limited to the issue whether the trial
court erred in granting Greifenberger’s jury instruction on the
duty to continue necessary treatment.
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DISCUSSION
It has long been the rule that a trial court should not
give a jury instruction that, while a correct statement of the
law as an abstract proposition, is inapplicable to the facts of
the case. Gordon v. Virginia Electric & Power Co., 150 Va. 442,
450, 143 S.E. 681, 683 (1928); see also Parker v. McCoy, 212 Va.
808, 814, 188 S.E.2d 222, 226 (1972). Rather, the trial court
should instruct the jury only on those theories of the case
which find support in the evidence, see Neeley v. Johnson, 215
Va. 565, 575, 211 S.E.2d 100, 108 (1975)(“an instruction should
not be given which is unsupported by the evidence”), and the
evidence relied on to support a proffered instruction must
amount to “more than a scintilla.” Hatcher v. Commonwealth, 218
Va. 811, 814, 241 S.E.2d 756, 758 (1978); see also Ring v.
Poelman, 240 Va. 323, 327, 397 S.E.2d 824, 827 (1990).
The instruction at issue here, commonly known as an
“abandonment” instruction, as an abstract proposition is
arguably a correct statement of the law with respect to a
physician’s duty to continue to render treatment to a patient as
long as may be necessary. We have previously addressed the
nature of this duty, arising from the physician-patient
relationship, by stating that “[a]fter a physician has accepted
employment in a case it is his duty to continue his services as
long as they are necessary. He cannot voluntarily abandon his
9
patient.” Vann v. Harden, 187 Va. 555, 565, 47 S.E.2d 314, 319
(1948). We have further stated that “under certain
circumstances, the physician has a right to withdraw from a
case, provided the patient is afforded a reasonable opportunity
to acquire the services he needs from another physician.” Lyons
v. Grether, 218 Va. 630, 634, 239 S.E.2d 103, 106 (1977). The
essence of this duty is the responsibility of the treating
physician to avoid a lapse in necessary treatment to the
patient.
In the present case, Dr. Rosen contends that his action in
turning over Greifenberger’s treatment to Dr. Castle for the
period of Dr. Rosen’s absence did not constitute an abandonment
of his duty to render continuing necessary treatment to her.
Limiting our holding to the specific facts of this case, we
agree with Dr. Rosen.
It is a matter of common knowledge and experience that
physicians in a group practice regularly rotate “on-call”
responsibility for a patient’s treatment during non-office
hours. Moreover, here the evidence showed that Greifenberger
was aware that Dr. Rosen was a member of a group practice, that
the other members of the group practice specialized in the same
field of medicine, and that she had been treated by all three
members of the group practice at various times. In addition,
Greifenberger does not challenge Dr. Castle’s qualifications to
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provide the treatment she required in Dr. Rosen’s absence, and
she made no claim against Dr. Castle individually in this suit.
Finally, the evidence shows that although Dr. Rosen did not
advise Greifenberger of his intended absence, it is undisputed
that he made adequate arrangements for her to contact and
receive continuing treatment from Dr. Castle during that time.
Accordingly, the evidence does not support abandonment or lack
of continuing care of the patient that would justify the
instruction in question.
Finally, Greifenberger contends that even if the trial
court erred in giving the abandonment instruction, that error
was harmless, and the judgment in her favor should be sustained
since the evidence shows that Dr. Rosen was negligent in his
entire course of treatment of her. We express no opinion on the
issue of Dr. Rosen’s primary negligence because that issue is
not before us. However, it is undisputed that Greifenberger
presented both the issues of abandonment and negligence by Dr.
Rosen to the jury. The claim that a physician has abandoned a
patient in need of urgent, continuing medical treatment, such as
the present case, would undoubtedly tend to inflame the emotions
of a jury. Under such circumstances, giving an erroneous
instruction is not harmless. Rather, “[i]f an issue is
erroneously submitted to a jury, we presume that the jury
11
decided the case upon that issue.” Clohessy v. Weiler, 250 Va.
249, 254, 462 S.E.2d 94, 97 (1995).
CONCLUSION
For these reasons, we will reverse the judgment of the
trial court and remand the case for a new trial.
Reversed and remanded.
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