Poliquin v. Daniels

Present: All the Justices

JAMES R. POLIQUIN, M.D., ET AL.

v. Record No. 961719

FELICIA DANIELS, ADMINISTRATRIX
OF THE ESTATE OF SAMUEL DANIELS, DECEASED

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
June 6, 1997

M. ABEY ALBERT, M.D., ET AL.

v. Record No. 961761

FELICIA DANIELS, ADMINISTRATRIX
OF THE ESTATE OF SAMUEL DANIELS, DECEASED

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge

These two related medical malpractice cases present issues

regarding (1) the testimony of expert witnesses, (2) the

sufficiency of the evidence to support the trial court's

judgment, and (3) the refusal of certain jury instructions.

I

Samuel Daniels (Daniels) died following surgery on June 13,

1993. His widow, Felicia Daniels (the Plaintiff), qualified as

administratrix of the estate and, thereafter, filed a motion for

judgment against James R. Poliquin, M.D., a general surgeon,

along with his professional corporation, Commonwealth General and

Vascular Surgery, P.C. (collectively, Poliquin), and against M.

Abey Albert, M.D., an anesthesiologist, along with his

professional group, Midlothian Anesthesia Associates, Inc.

(collectively, Albert). The Plaintiff alleged that Drs. Poliquin

and Albert negligently breached the applicable standards of care

and that their negligence proximately caused Daniels' death.
 The case was tried by a jury which returned a verdict in

favor of the Plaintiff against Poliquin and Albert in the amount

of $1,004,929.14. After considering the defendants' motions to

set aside the verdict, the trial court overruled the motions,

except to reduce the amount of the verdict to $1,000,000 in

accordance with the statutory limitation on recovery. Code

§ 8.01-581.15. On May 29, 1996, the trial court entered final

judgment on the verdict as amended. Poliquin and Albert

(collectively, the Defendants) appeal.
II

According to established law, we must view the evidence in

the light most favorable to the Plaintiff, the prevailing party

at trial. On June 12, 1993, Daniels went to a medical clinic for

treatment of a perirectal abscess and associated pain and fever.

The clinic referred Daniels to the emergency room of Johnston-

Willis Hospital for further evaluation. At the hospital, Daniels

was examined by Dr. Poliquin who determined that the abscess

required surgery. Dr. Poliquin admitted Daniels to the hospital

and scheduled him for surgery the next morning.

Daniels was hypertensive, diabetic, and obese, and, because

of the surgical risks associated with these conditions, Dr.

Poliquin ordered, among other tests, an electrocardiogram (EKG)

to detect whether Daniels had any pulmonary or cardiac diseases.

The EKG was performed on June 12, 1993, about 10:30 p.m., and

Dr. Poliquin referred the EKG tracing to a cardiologist for

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interpretation.

On the morning of June 13, Dr. Albert arrived at the

hospital to administer the anesthesia for Daniels' surgery. Dr.

Albert noted that Daniels was obese and had a history of

hypertension and diabetes and that Daniels suffered from

shortness of breath. Dr. Albert also noted that the EKG tracing,

which had not yet been interpreted by a cardiologist, showed

signs of abnormality, but he neither reported that fact to Dr.

Poliquin nor sought an interpretation of the tracing by a

cardiologist.
The surgery, performed by Dr. Poliquin, proceeded as

scheduled, and Daniels was placed under general anesthesia. At

the conclusion of the surgery, Dr. Albert noticed that Daniels

was experiencing difficulty breathing, and he attempted to

intubate Daniels again. Daniels, however, became unresponsive,

went into cardiac arrest, and, despite resuscitation efforts,

died.

Later on the morning of June 13, a cardiologist interpreted

Daniels' EKG tracing and noted that it showed that Daniels

possibly had previously suffered a myocardial infarction; i.e.,

heart attack. According to an autopsy, Daniels had suffered a

silent myocardial infarction at least one week prior to his

death. 1
1
At trial, an expert witness explained that a silent
myocardial infarction "refers to the fact that the patient does
not feel pain . . . . It is typically found . . . in patients
who are diabetics . . . . So it's not uncommon for a diabetic

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 At trial, Dr. Stephen Carl Rerych, a general surgeon, Dr.

Richard J. Hart, Jr., a cardiologist, and Dr. Brian Gerard

McAlary, an anesthesiologist, were called by the Plaintiff as

expert witnesses. They explained that surgery under general

anesthesia places stressful demands on the heart. They further

explained that a healthy heart tolerates these stresses, but a

patient who has had a myocardial infarction is at risk during

surgery.
Dr. Rerych, over the Defendants' objection, testified

regarding the standard of care required of a general surgeon. He

stated that the standard of care required a surgeon to know prior

to surgery the results of tests ordered and that this was

particularly important for a patient like Daniels, with a high

risk for undiagnosed heart disease. Therefore, before surgery on

such patients, a surgeon must order an EKG and receive an

interpretation of the results by a qualified physician. Dr.

Rerych opined that Dr. Poliquin's failure to ascertain the

results of the EKG prior to performing the surgery was a

violation of a surgeon's standard of care.

Dr. Hart testified that diabetics are at risk for silent

myocardial infarctions and, therefore, a proper interpretation of

Daniels' EKG by a cardiologist was essential. Such an

interpretation would have led to a cardiac evaluation which would

(..continued)
not to have chest pain, and, yet, they have a major heart problem
going on."

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have shown the extent of the damage to Daniels' heart from the

silent myocardial infarction. With this knowledge, Drs. Poliquin

and Albert could have explored other treatment options that, in

Dr. Hart's opinion, would have prevented Daniels' death.

Dr. McAlary was the Plaintiff's expert witness on the

standard of care for an anesthesiologist treating a patient like

Daniels. Dr. McAlary testified that an anesthesiologist must be

sensitive to the possibility that a diabetic may have had a

silent myocardial infarction and may have heart disease,

particularly when the patient is also hypertensive and obese. He

also testified that there were a variety of available monitoring

options that would have provided the surgical team with early

indications of Daniels' heart failure and that such early

indications would have led to immediate treatment. Dr. McAlary

opined that Daniels would have survived the surgery had

appropriate actions been taken for his condition. According to

Dr. McAlary, Dr. Albert breached the standard of care required of

an anesthesiologist by failing to know the interpretation of the

EKG tracing, to consult with a cardiologist which consultation

would have led to invasive monitoring, and to use invasive

monitoring of Daniels during surgery.
III

Following a voir dire hearing, the trial court qualified Dr.

Rerych as an expert witness on the standard of care for a general

surgeon in Virginia. Poliquin contends on appeal, as at trial,

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that the trial court erred in qualifying Dr. Rerych.

Code § 8.01-581.20 provides for a statewide standard of care

in medical malpractice cases unless a health care provider proves

that a local standard of care is more appropriate. Neither the

General Assembly nor this Court has ever recognized a nationwide

standard of care. Code § 8.01-581.20 provides, in pertinent

part, as follows:
[I]n any action against a physician . . . to recover
damages alleged to have been caused by medical
malpractice . . . in this Commonwealth, the standard of
care by which [the alleged malpractice is] to be judged
shall be that degree of skill and diligence practiced
by a reasonably prudent practitioner in the field of
practice or specialty in this Commonwealth and the
testimony of an expert witness, otherwise qualified, as
to such standard of care, shall be admitted . . . .
Any physician who is licensed to practice in Virginia
shall be presumed to know the statewide standard of
care in the specialty or field of medicine in which he
is qualified and certified. This presumption shall
also apply to any physician who is licensed in some
other state of the United States and meets the
educational and examination requirements for licensure
in Virginia.

(Emphasis added.)

Dr. Rerych received a medical degree from Columbia

University College of Physicians and Surgeons in New York.

Thereafter, he attended a surgical residency program in North

Carolina at Duke University Medical Center. From 1985 to 1986,

Dr. Rerych was Chief Resident in General and Thoracic Surgery at

Duke University Medical Center, and, from 1986 to 1991, he served

as Assistant Clinical Professor of General, Thoracic, and

Vascular Surgery at the same facility. Dr. Rerych is a board

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certified general surgeon. He is licensed to practice general

surgery in North Carolina and has practiced his specialty in

North Carolina since 1988.

During voir dire, Dr. Rerych testified that he was "clearly

eligible" for licensure in Virginia. Additionally, the trial

court received into evidence a letter to that effect from the

Commonwealth's Department of Health Professionals. Dr. Rerych

also testified that he knew "the standard of care that would have

prevailed in Virginia in June of 1993 with respect to the issues

in this case." However, the doctor, when asked if he was making

an "assumption . . . with regard to the [standard of] care in

Virginia," answered, "A strong assumption."
Poliquin asserts that, even if Dr. Rerych met the

requirements for licensure in Virginia, his testimony rebutted

the statutory presumption and showed that he did not know the

standard of care in Virginia. We do not agree. The voir dire

hearing was extensive, and, at the conclusion thereof, the trial

judge stated: "I'm going to overrule the objection[;] the

witness is qualified by the thinnest of reeds under the statute."

Thus, the trial court weighed all the evidence before it,

applied the statutory presumption, and concluded that Dr. Rerych

was qualified to testify as to the standard of care in this

Commonwealth.

The question whether a witness is qualified to express an

expert opinion rests within the sound discretion of the trial

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court. King v. Sowers, 252 Va. 71, 78, 471 S.E.2d 481, 485

(1996). We cannot say, based upon the record before us, that the

trial court abused its discretion in qualifying Dr. Rerych as an

expert witness.

IV

A

Both Albert and Poliquin contend that no evidence was

presented to show that their alleged negligence proximately

caused Daniels' death. Thus, they assert, the trial court erred

in overruling their motions to strike the evidence and to set

aside the verdict.
In medical malpractice cases, as with other tort litigation,

issues of negligence and proximate cause are ordinarily questions

of fact for a jury. Brown v. Koulizakis, 229 Va. 524, 531, 331

S.E.2d 440, 445 (1985). Only when reasonable minds could not

differ about such issues do they become questions to be decided

by a court. Hadeed v. Medic-24, Ltd., 237 Va. 277, 285, 377

S.E.2d 589, 593 (1989). In viewing the evidence, an appellate

court must give the prevailing party at trial the benefit of all

substantial conflict in the evidence and all inferences

reasonably deducible therefrom. Id. at 280-81, 377 S.E.2d at

590. Thus, a verdict should not be set aside unless it is

contrary to the evidence or without evidence to support it. Code

§ 8.01-430; Brown, 229 Va. at 531, 331 S.E.2d at 445.

In the present case, the Defendants contend that the

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evidence, at most, showed only what might have occurred, rather

than what necessarily would have occurred had the Plaintiff's

experts' recommended standards of care been followed. They

assert that there was a complete lack of expert testimony that

their alleged negligence caused Daniels' death. We do not agree.

In medical malpractice death cases, a plaintiff is not

required to prove to a certainty that the patient would have

survived had certain actions been taken. Brown, 229 Va. at 532,

331 S.E.2d at 446; Whitfield v. Whittaker Mem. Hospital, 210 Va.
176, 184, 169 S.E.2d 563, 569 (1969). A defendant physician's

action or inaction which "has destroyed any substantial

possibility of the patient's survival" is a proximate cause of

the patient's death. Brown, 229 Va. at 532, 331 S.E.2d at 446;

accord Bryan v. Burt, 254 Va. ___, ___, ___ S.E.2d ___, ___

(1997) (this day decided); Whitfield, 210 Va. at 184, 169 S.E.2d

at 568.

In the present case, each of the Plaintiff's experts

testified that it was his opinion to a reasonable degree of

medical probability that, had the Defendants known what they

should have known about Daniels' condition prior to surgery and,

thereafter, employed the appropriate procedures during surgery,

Daniels would have survived the surgery. Therefore, we think the

trial court properly submitted the issue of proximate cause to

the jury. 2
2
On brief, Poliquin presents the question whether the
Plaintiff showed a breach of the standard of care for general

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 B

The Defendants further contend that the trial court erred in

allowing the testimony of Norman Fayne Edwards, Plaintiff's

economic damages expert. The Defendants objected to Dr. Edwards'

testimony because, in formulating the present value of Daniels'

lifetime income, Dr. Edwards based his calculations on life

expectancy tables contained in Code § 8.01-419 and on tables

published by the United States Department of Labor (DOL). They

assert that the Plaintiff's own evidence contradicted the

assumptions which served as the basis for Edwards' opinions.
According to Dr. Edwards, Daniels, who was 38 years old when

he died, had a life expectancy of 34.6 years pursuant to Code

§ 8.01-419. Under the DOL tables, Daniels had a work life

expectancy of 24 years, or to age 63.

Dr. Hart testified that, had Daniels survived the surgery,

he would have lived no more than 10-15 years, unless he made

significant lifestyle changes. If he had made such changes,

including losing 100 pounds within a year and exercising, his

life expectancy would have been 20-25 years.

Code § 8.01-419 provides that the table of life expectancy

set forth therein shall be received "as evidence, with other

evidence as to the health, constitution and habits of [the]

person" in issue. (Emphasis added.) As we said in Edwards v.
(..continued)
surgeons in the Commonwealth. Poliquin, however, did not file an
assignment of error relating to this issue, and therefore, we
will not consider it on appeal. Rule 5:21(i).

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Syrkes, 211 Va. 600, 602, 179 S.E.2d 902, 903 (1971),
it is the duty of the court, when so requested in an
action for wrongful death, to tell the jury that a
mortality table introduced into evidence is to be
considered . . . along with all the other evidence
relating to the health, habits and other circumstances
of the person which may tend to influence his life
expectancy.

In the present case, the trial court properly instructed the

jury, in accordance with Edwards, that it "should consider

[Daniels' life expectancy of 34.6 years] along with any other

evidence relating to the health, constitution, and habits of

. . . Daniels in determining his life expectancy." Thus, based

upon the evidence before it, the jury could determine Daniels'

life expectancy in formulating the present value of his lifetime

income. We hold, therefore, that the trial court did not err in

allowing Dr. Edwards' testimony.
C

Finally, the Defendants contend that the trial court erred

in refusing their tendered instructions B, C, and D. We think

the legal principles set forth in those instructions were

adequately and objectively covered in granted instructions 1, 13,

and 17. "When granted instructions fully and fairly cover a

principle of law, a trial court does not abuse its discretion in

refusing another instruction relating to the same legal

principle." Stockton v. Commonwealth, 227 Va. 124, 145, 314

S.E.2d 371, 384, cert. denied, 469 U.S. 873 (1984); accord
Hubbard v. Commonwealth, 243 Va. 1, 16, 413 S.E.2d 875, 883

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(1992). Therefore, we conclude that the jury was fully and

fairly instructed and the trial court did not abuse its

discretion in refusing instructions B, C, and D.

V

In sum, we hold that the trial court did not err in

qualifying Dr. Rerych as an expert witness, submitting the

proximate cause issue to the jury, allowing Dr. Edwards'

testimony, and refusing certain jury instructions. Accordingly,

we will affirm the trial court's judgment.

Affirmed.

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