Virginia Lawyers Weekly

The family of a woman who sued a radiologist who failed to get word to her regular doctor about a life-threatening medical condition should have a second chance to try their medical-malpractice against him, the Supreme Court of Virginia has decided.

Evidence showed that the radiologist was put on hold and eventually hung up and used a fax machine to try to send the warning to the patient’s primary care doctor.

The treating doctor did not receive the report about the patient’s dangerous blood clots until after the patient had died from complications of the clots.

In its decision, the court was seeking to put the issue of causation before a jury properly. It found that a superseding negligence instruction was error.

That’s the legal import of Williams v. Le (VLW 008-6-073). The case carries a different meaning for radiologists and perhaps other physicians who provide information to primary doctors.

One lawyer noted that radiologists will keep a copy of this opinion taped on the wall by the telephone. They will make sure they have the conversation with a primary caregiver, she added.

The radiologist’s case is one of two medical malpractice cases decided on June 6, giving plaintiffs a string of 11 consecutive victories in medical malpractice appeals. The other case reinstates a jury verdict against a gynecologist who allegedly forgot to remove a woman’s ovaries during a hysterectomy.

A ‘nightmare’

Benjamin W. Glass III, one of the plaintiff’s lawyers in Williams, termed the scenario “a patient’s worse nightmare.”

“A test is done which shows a condition that is life-threatening but very treatable – but none of the doctors acts on the [information],” Glass wrote in a summary of the case.

According to the court’s opinion, the patient had an ultrasound study that showed a deep vein thrombosis in her leg, a condition that put the patient at risk for pulmonary embolism. Pieces of the blood clot in the leg could break off, travel to the lungs, and cause death.

The defendant radiologist telephoned the primary care doctor. After making his way through an automated telephone system, he spoke to an operator. He introduced himself and asked to speak to the primary care doctor. The operator said she would have to locate that doctor and put the radiologist on hold.

The radiologist testified that he was on hold long enough that he “lost confidence” in being able to get in touch with the primary care doctor at that time. He was unable to leave a voicemail or talk to an operator. Instead, he prepared a report and had it faxed to the doctor’s office.

The primary care doctor did not get the warning report until after the patient’s death.

The plaintiff settled with other defendants and went to trial against the radiologist, who sought to shift the blame to the primary care doctor.

At the defendant’s request, Fairfax County Circuit Judge Jonathan Thacher instructed the jury on superseding cause, allowing the radiologist to argue that the other doctor’s failure to notice the radiology report was the ultimate cause of the patient’s death.

Citing a 10-year-old case, the Supreme Court held that such an instruction was error unless the jury could find that the defendant’s negligence did not contribute to the harm “in the slightest degree.” Writing for the court, Justice Donald W. Lemons said “the evidence proved without contradiction that the communication problems … were put in motion by [the radiologist’s] failure to make direct contact with [the other providers].”

Stephanie E. Grana, who represents plaintiffs in medical malpractice cases, said that the Williams case highlights the perils of the superseding cause instruction. “I think trial judges are going to be very careful about giving this instruction,” Grana said.

She pointed out that the Virginia Model Jury Instructions listing for this instruction does not say, “Rarely given.” She suggests that the editors might consider adding that warning in light of Williams.

Grana also noted the likely impact of this decision on radiological practices. She envisions copies of the opinion taped to the wall next to the telephone and fax machine in radiology offices. “This is going to be a decision that radiologists will think about,” she said. The case signals that “radiologists need to go the extra mile and have that mouth-to-mouth discussion” with the treating doctor.

As Glass put it, the defendant radiologist “should have called back and told the … operator that he had an emergency on his hands and he should also have called [the patient] and told her to get to an emergency department. He had a time-bomb on his hands yet he failed to communicate the urgency of the situation to the … operator.”

Expert not needed

In the other June 6 med-mal case, a five-member majority of the court decided that when a doctor agrees to remove a patient’s ovaries together with a hysterectomy (removal of the uterus), and then fails to remove the ovaries, the patient does not need expert testimony to prove the need for another operation. The case is Webb v. Smith (VLW 008-6-053).

The reason for the omission was disputed. According to the patient, the doctor said he forgot. The doctor testified that he chose not to remove the ovaries because he inspected them and saw no reason to remove them. The jury found for the plaintiff, the trial court set aside the verdict, and the high court now reinstates the verdict.

Webb’s lesson for plaintiffs’ lawyers, said Grana, is to have your expert cover all the bases if possible. “If your expert is on the stand and can testify as to both negligence and causation, it’s better to have them do both.”

In this case, however, the plaintiff’s lawyer said that he made a strategic decision to have his expert avoid the need for another operation. Richmond lawyer A. Donald McEachin said that he felt that he could rely on the “common knowledge” argument and he wished to avoid opening the door for evidence on the matter.

Grana was not surprised by the outcome. She sees Webb as just one more in the series of opinions documenting those “rare cases” where expert testimony is not necessary to prove a medical malpractice claim. Other such cases have involved a broken chair, a needle left after surgery and a nursing home patient who could not safely feed herself.

Lawyers contacted for this story had little to say about the apparent winning streak enjoyed by medical malpractice plaintiffs in the Supreme Court. “I would love to say the tide was turning, but it may just be which cases go up,” said Grana.

One of those recent “wins” for plaintiffs was the decision to deny the protection of charitable immunity to a physicians’ billing office in University of Virginia Health Services Foundation v. Morris. The Supreme Court this month granted appeals in three cases where trial courts found charitable immunity for a similar physicians’ business associated with the Eastern Virginia Medical School in Norfolk. Should that entity be held in the same regard as its Charlottesville counterpart, plaintiffs may get yet another favorable decision from the court.

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