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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