ATKINSON v. SCHEER
November 6, 1998
Record No. 972694
WALTER ATKINSON, ADMINISTRATOR OF THE ESTATE OF
RUBY E. ATKINSON, DECEASED
DANIEL W. SCHEER, D.O.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Present: All the Justices
In this appeal of a judgment in a medical
negligence action, we consider whether the defendant was entitled
to present evidence that another doctor, who is not a party to
this litigation, breached the standard of care owed to a patient.
Walter Atkinson, administrator of the estate of
Ruby E. Atkinson (Atkinson), filed a motion for judgment against
Daniel W. Scheer, a doctor of osteopathic medicine. The estate
alleged that Dr. Scheer breached the standard of care owed to
Atkinson and that her death was caused by Dr. Scheer’s
negligence. Dr. Scheer filed a grounds of defense and denied any
acts of negligence.
During a jury trial, Dr. Scheer was permitted
to ask the plaintiff’s expert witness, over the plaintiff’s
objection, whether another physician who had also treated
Atkinson had committed acts of negligence. The trial court
permitted Dr. Scheer to elicit such testimony, and at the
conclusion of the trial, the jury returned a verdict in favor of
Dr. Scheer. The plaintiff appeals.
We will state the facts and all reasonable
inferences therefrom in favor of Dr. Scheer, the recipient of a
jury verdict confirmed by the trial court. Atkinson began to
experience symptoms of a heart attack around 5:00 p.m. on
September 12, 1994. She had pain and nausea, and she vomited. She
arrived at Richmond Memorial Hospital’s emergency room at 6:50
p.m., and she complained of pain in her chest, neck, and left
An emergency room nurse placed Atkinson on
oxygen, extracted a blood sample from her, and connected her to a
continuous heart monitor. The nurse gave Atkinson certain fluids
intravenously and attached her to an electrocardiograph. Dr.
Scheer examined Atkinson around 7:15 p.m., performed a physical
evaluation, and ordered certain diagnostic tests.
Dr. Scheer testified that even though he did
not make a final diagnosis of Atkinson on September 12, he made a
working diagnosis that "her etiology was probably cardiac in
origin, probably cardiac ischemia." Dr. Scheer stated that a
working diagnosis is "the one most likely to be what was
going on with the person." Dr. Scheer described an ischemia
as "a lack of oxygen going to the heart."
Subsequently, Dr. Scheer ordered that a patch
of nitroglycerin paste be placed on Atkinson’s chest to be
absorbed through her skin into her body. The nitroglycerin paste
dilated her blood vessels, thereby reducing the strain on her
heart which, in turn, decreased her heart’s need for oxygen.
According to Dr. Scheer, after the nitroglycerin paste was
administered, Atkinson’s pain abated. Atkinson’s daughter,
however, testified that her mother continued to experience pain.
Dr. Scheer ordered a blood test to ascertain
the presence of enzymes in Atkinson’s body which would have been
indicative of heart damage. Dr. Scheer had not received the
results of the blood test when his emergency room shift ended at
Dr. Scheer also contacted Dr. Selwyn Goodwin by
telephone. Dr. Goodwin was a physician who was "on
call" for Atkinson’s regular treating physician. Dr. Goodwin
was aware of Atkinson’s past history of pulmonary embolism, a
condition which could also cause chest pain. Dr. Goodwin
suggested to Dr. Scheer that he order a ventilation protrusion
scan which would detect the presence of this condition. This scan
is commonly referred to as a VQ scan. The scan was performed, but
the results were not available when Dr. Scheer’s shift ended.
When Dr. Scheer left the emergency room at
about 10:00 p.m., Dr. Gayle Wampler-Adams, another emergency room
physician, began treatment of Atkinson. Dr. Wampler-Adams
testified that it was her "recollection . . . that
[Atkinson] had been cleared for discharge, that we were awaiting
VQ scan results as a final diagnostic test."
Dr. Wampler-Adams received the results of the
VQ scan, which were negative. Dr. Wampler-Adams spoke with
Atkinson, performed a physical examination, and reviewed the EKG
and laboratory results available to her. Dr. Wampler-Adams noted
in the emergency room record that her diagnosis of Atkinson’s
condition was "[a]typical chest pain, probable GE
Reflux." Dr. Wampler-Adams also spoke by telephone with Dr.
Goodwin. Dr. Wampler-Adams discharged Atkinson at 11:40 p.m. that
Dr. Wampler-Adams testified, without
contradiction, that she relied upon Dr. Scheer’s
"workup" of Atkinson when making the decision to
discharge Atkinson. Shortly after her discharge, Atkinson began
to experience symptoms associated with a heart attack. She began
to vomit, and she complained of pain in her shoulder "down
through her arm." Her regular physician diagnosed her
condition the next day as "a heart attack in progress,"
and she was admitted to Richmond Memorial Hospital. She died on
October 4, 1994, as a result of her heart attack.
Dr. Scheer did not present any expert witnesses
at trial. His expert witnesses were disqualified from testifying
in a pretrial order.
Dr. David Munter, who qualified as an expert
witness on behalf of the plaintiff on the subject of
"emergency room care medicine," testified within a
reasonable degree of medical certainty that Dr. Scheer breached
the standard of care owed to Atkinson. Specifically, Dr. Munter
testified that Dr. Scheer had enough information to admit
Atkinson as a patient to the hospital and that he breached the
standard of care in failing to do so. Dr. Munter also opined that
Dr. Scheer should have been more aggressive in his treatment of
Atkinson and that Atkinson would have "had a very high
probability of surviving had she been admitted" to the
hospital on the evening she was treated in the emergency room and
that her "high likelihood of survivability was lost."
During Dr. Scheer’s cross-examination of Dr.
Munter, the trial court permitted him to ask, over the
plaintiff’s objection, whether Dr. Wampler-Adams, who had settled
the estate’s claims against her, breached the standard of care
owed to Atkinson. Dr. Munter testified that Dr. Wampler-Adams had
breached the standard of care by discharging Atkinson.
Atkinson, relying upon Jenkins v. Payne,
251 Va. 122, 465 S.E.2d 795 (1996), argues that the trial court
erred by permitting Dr. Scheer to introduce evidence at trial
that Dr. Wampler-Adams was negligent in her care and treatment of
Atkinson. Dr. Scheer responds that the trial court properly
admitted this testimony in evidence because Dr. Wampler-Adams’
conduct was negligent and such conduct was a superseding
intervening cause of Atkinson’s injury. We disagree with Dr.
In Jenkins, we considered "whether
the trial court erred in excluding from the jury’s consideration
(1) opinion evidence that another physician, who had settled the
plaintiff’s claim against him, was negligent in his treatment of
the decedent, and (2) the defendants’ argument that the settling
physician was the sole proximate cause of the decedent’s
death." Jenkins, 251 Va. at 124, 465 S.E.2d at 796.
Veronica L. Payne filed a motion for judgment
against Harold S. Jenkins, M.D., Jill W. York, R.N., P.N.P.,
Barry S. Rothman, M.D., and Doctors Rothman, Grapin, and
McKnight, P.C. Payne alleged that these health care providers
breached the applicable standards of care owed to her. Payne died
before trial, and her husband, Troy R. Payne, the personal
representative of her estate, was substituted as plaintiff, and
the motion for judgment was amended to allege a cause of action
for wrongful death.
Veronica Payne had Paget’s Disease, which is a
cancer of the nipple and milk ducts. While this cancer remains
non-invasive, it grows slowly and is highly curable. There is
about a 90% survival rate for patients with Paget’s Disease who
receive treatment before the cancer becomes invasive.
Veronica Payne first sought treatment for her
breast abnormalities when she was examined by York, a nurse
practitioner working under the supervision of Dr. Jenkins. She
was seen and treated twice by York, who referred her to a
dermatologist. Subsequently, Payne sought treatment from Dr.
Rothman, a gynecologist, who prescribed oral antibiotics and a
topical steroid to treat problems she was having with her breast.
Id. at 125-26, 465 S.E.2d at 797.
Payne made several additional visits to both
York and Dr. Rothman because she was concerned about sores on her
breast which had not healed properly. Subsequently, York examined
Payne and discovered the presence of multiple masses in her
breast, and Payne was referred to a surgical oncologist, who
determined that she had aggressive cancer which had spread to her
lymph nodes. An expert witness testified at trial that Payne’s
death was the result of a misdiagnosed breast cancer and that she
would have had a 10-year survival probability of about 90% had
her cancer been diagnosed when it was still non-invasive.
Before trial, the personal representative of
Payne’s estate settled his claim against Dr. Rothman and his
professional corporation. The plaintiff made a motion in limine
requesting that the trial court exclude any opinion evidence that
Dr. Rothman was negligent in his treatment of Veronica Payne. The
defendants objected, asserting that their defense would be based
on a theory that Dr. Rothman’s negligence was the sole proximate
cause of Veronica Payne’s death. The trial court ultimately
granted the motion, ruling that Dr. Rothman’s conduct was
"at the very best . . . concurrent negligence as
opposed to [superseding negligence]." Id. at 124, 465
S.E.2d at 796.
On appeal, the defendants in Jenkins
argued that the trial court erred in refusing to permit them to
present testimony that Dr. Rothman breached the standard of care
owed to Payne because there was evidence that Dr. Rothman was the
sole proximate cause of Veronica Payne’s death. Rejecting their
contentions, we stated the following principles which are equally
"Issues of negligence and proximate
causation ordinarily are questions of fact for the jury’s
determination. Brown v. Koulizakis, 229 Va. 524,
531, 331 S.E.2d 440, 445 (1985). A court decides these issues
only when reasonable persons could not differ. Hadeed v. Medic-24,
Ltd., 237 Va. 277, 285, 377 S.E.2d 589, 593 (1989).
"’The proximate cause of an event is that
act or omission which, in natural and continuing sequence,
unbroken by an efficient intervening cause, produces the event,
and without which that event would not have occurred.’ Beale
v. Jones, 210 Va. 519, 522, 171 S.E.2d 851, 853 (1970).
There may be more than one proximate cause of an event. Panousos
v. Allen, 245 Va. 60, 65, 425 S.E.2d 496, 499 (1993).
"In order to relieve a defendant of
liability for his negligent act, the negligence intervening
between the defendant’s negligent act and the injury must so
entirely supersede the operation of the defendant’s negligence
that it alone, without any contributing negligence by the
defendant in the slightest degree, causes the injury. Id.;
Coleman v. Blankenship Oil Corp., 221 Va. 124, 131,
267 S.E.2d 143, 147 (1980); City of Richmond v. Gay,
103 Va. 320, 324, 49 S.E. 482, 483 (1905). Thus, a superseding
cause of an injury ‘constitutes a new effective cause and
operates independently of any other act, making it and it only
the proximate cause of injury.’ Maroulis v. Elliott,
207 Va. 503, 511, 151 S.E.2d 339, 345 (1966)." (Emphasis
added). Jenkins, 251 Va. at 128-29, 465 S.E.2d at 799.
We applied these principles in Jenkins,
and we held that reasonable persons could not conclude from the
evidence that Dr. Rothman’s negligence alone, without any
contributing negligence by the defendants in the slightest
degree, caused Payne’s death.
We also note that we stated in Richmond
v. Gay, 103 Va. 320, 324, 49 S.E. 482, 483 (1905):
"To be a superseding cause, whether
intelligent or not, it must so entirely supersede the operation
of the defendant’s negligence, that it alone, without the
defendant’s contributing negligence thereto in the slightest
degree, produces the injury." Accord Panousos
v. Allen, 245 Va. 60, 64-65, 425 S.E.2d 486, 499 (1993); Philip
Morris, Inc. v. Emerson, 235 Va. 380, 397, 368 S.E.2d
268, 277 (1988); Cox v. Mabe, 214 Va. 705, 708, 204
S.E.2d 253, 256 (1974); Savage Truck Line v. Traylor,
193 Va. 579, 585-86, 69 S.E.2d 478, 482 (1952); Jefferson
Hospital, Inc. v. Van Lear, 186 Va. 74, 81, 41 S.E.2d
441, 444 (1947).
Applying the principles that we enunciated in Jenkins
and Gay, we hold, as a matter of law, that Dr.
Wampler-Adams’ conduct was not a superseding intervening cause of
Atkinson’s injury and, thus, the trial court erred by permitting
Dr. Scheer to elicit testimony of Dr. Wampler-Adams’ negligence.
Dr. Scheer sought to relieve himself of liability for his
purported negligent acts because of a claimed superseding
intervening cause. Therefore, he was required to prove that Dr.
Wampler-Adams’ failure to admit Atkinson to the hospital entirely
superseded the operation of Dr. Scheer’s own alleged negligence
so that Dr. Wampler-Adams’ negligence alone, without any
contributing negligence, even in the slightest degree by Dr.
Scheer, caused Atkinson’s injuries. Dr. Scheer failed to meet
The uncontradicted evidence of record
demonstrates that Dr. Scheer’s alleged negligence contributed at
least "in the slightest degree" to Atkinson’s death
because Dr. Wampler-Adams testified without contradiction that
she relied upon Dr. Scheer’s "workup" when she made the
decision to discharge Atkinson. Even though Dr. Wampler-Adams,
just as Dr. Rothman in Jenkins, had the last opportunity
to take acts which would have substantially increased the
patient’s probability of survival, Dr. Wampler-Adams’ failure to
act did not entirely sever the chain of proximate causation set
in motion by Dr. Scheer’s alleged negligence.
Finding no merit in Dr. Scheer’s remaining
arguments, we will reverse the judgment of the trial court and
remand this case for a new trial.
Reversed and remanded.
JUSTICE KOONTZ, with whom JUSTICE COMPTON and
JUSTICE LACY join, dissenting.
I respectfully dissent.
The parties agree on appeal, as they did at
trial, that the broad issue to be resolved is whether our
decision in Payne v. Jenkins, 251 Va. 122, 465 S.E.2d 795
(1996), is controlling in the factual context of the present
case. The specific issue presented is whether it can be properly
determined as a matter of law that the conduct of Dr.
Wampler-Adams was not a superseding intervening cause or the sole
proximate cause of Ruby Atkinson’s death, or whether that conduct
created an issue of fact with regard to causation to be
determined by the jury. I dissent because the majority resolves
that issue as a matter of law and, although inadvertently,
effectively invades the province of the jury.
As we initially noted in Jenkins,
ordinarily issues of negligence and proximate causation are
questions of fact for the jury’s determination and only become
questions of law when reasonable persons could not differ.
"In order to relieve a defendant of liability for his
negligent act, the negligence intervening between the defendant’s
negligent act and the injury must so entirely supersede the
operation of the defendant’s negligence that it alone, without
any contributing negligence by the defendant in the slightest
degree, causes the injury." Jenkins, 251 Va. at 129,
465 S.E.2d at 799.
Guided by these well established principles, we
held in Jenkins that two medical practitioners were not
entitled to present opinion evidence that the negligence of a
third defendant, against whom claims had been nonsuited following
settlement of the claims against him, was the sole proximate
cause of the patient’s death. In that case, the evidence showed
that all of the defendants concurrently treated the patient and
were subject to the same standard of care of the patient.
Therefore, the evidence would not support a finding that only the
nonsuited defendant’s negligence contributed to the patient’s
death. Id. Accordingly, we agreed with the trial court
that while evidence establishing the facts surrounding the
treatment of the patient by the nonsuited defendant was
admissible, id. at 124 n.1, 465 S.E.2d 796 n.1, expert
opinion as to whether he had breached the standard of care in his
treatment of the patient was irrelevant to the issue of whether
the defendants also were negligent in their treatment of the
I begin my analysis by noting the obvious
distinction between the factual context in which the causation
issue arises in the present case and that existing in Jenkins.
Unlike Jenkins, the present case does not involve
concurrent medical treatment of a mutual patient. Here, Dr.
Scheer and Dr. Wampler-Adams, while subject to the same standard
of care in their treatment of Atkinson, did not concurrently
treat her. Rather, Dr. Munter’s testimony established that,
consistent with the standard of care for patients in the
emergency room, Scheer’s treatment of Atkinson terminated at the
end of Scheer’s shift in the emergency room, and Atkinson
thereafter became solely the patient of Wampler-Adams.
This factual distinction is significant. This
is particularly so in light of plaintiff’s theory of liability
and additional undisputed facts in this case. The thrust of
plaintiff’s theory of liability is that Dr. Scheer was negligent
in failing to diagnose Atkinson’s cardiac condition and,
moreover, in failing to promptly admit her to the hospital for
appropriate intensive cardiac care treatment. Indeed, plaintiff
called Dr. Munter, as an expert witness, in support of that
theory of liability. Dr. Munter, as noted by the majority, opined
that Dr. Scheer was negligent in not admitting Atkinson to the
hospital and that her very high probability of survivability was
lost because she was not admitted to the hospital on the evening
she was treated in the emergency room.
However, Dr. Munter did not testify that this
probability of survivability was lost solely as a result of Dr.
Scheer’s failure to admit Atkinson to the hospital. At that point
in the succession of events to which Dr. Munter’s testimony
related, it is undisputed that when Dr. Scheer terminated his
treatment of her, Atkinson remained in the emergency room. In
addition, it is undisputed that Atkinson’s condition was then
stable. Plaintiff’s other expert witness, Dr. Archer Baskerville,
a board certified cardiologist, testified that Atkinson had
suffered an "incomplete heart attack" before arriving
at the emergency room and that the application of nitroglycerin
stopped the heart attack for the period during which it was
applied. Finally, it is also undisputed that Dr. Wampler-Adams
did not admit Atkinson to the hospital, but, rather, after
reviewing Dr. Scheer’s notes on Atkinson’s chart and the results
of prior tests, conducting a physical examination, and receiving
the negative results from the VQ scan, she discharged Atkinson
with what proved to be an erroneous diagnosis of "[a]typical
chest pain, probable GE Reflux."
On cross-examination, Dr. Munter conceded that
it was not a breach of the standard of care for Dr. Scheer to
turn the treatment of Atkinson over to Dr. Wampler-Adams at the
end of his shift, but "it should never have reached that
point." As Dr. Scheer’s counsel proceeded to question Dr.
Munter about Dr. Wampler-Adams’ treatment of Atkinson, plaintiff
objected, asserting that "[t]he case is not about Dr.
Adams." Dr. Scheer contended that he was attempting to show
a superseding cause arising from the negligence of Dr.
Wampler-Adams. Plaintiff renewed the motion in limine and the
trial court replied, "I think that’s relevant," and
noted plaintiff’s objection. Dr. Munter then testified that Dr.
Wampler-Adams had a duty to conduct her own examination and
evaluation of the patient and that, based on the information
available, Dr. Wampler-Adams or "anybody associated with
this case in the emergency department should have admitted"
It is then in this factual context, in contrast
to that in Jenkins, that the majority holds, as a matter
of law, that Dr. Wampler-Adams’ conduct was not a superseding
intervening cause of Atkinson’s death and, thus, that the trial
court erred by permitting Dr. Scheer to elicit testimony of Dr.
Wampler-Adams’ negligence. The majority correctly notes that Dr.
Scheer had the burden to prove that Dr. Wampler-Adams’ failure to
admit Atkinson to the hospital entirely superseded the operation
of Dr. Scheer’s own alleged negligence so that Dr. Wampler-Adams’
negligence alone, without any contributing negligence, even in
the slightest degree, by Dr. Scheer, caused Atkinson’s death.
However, the majority then finds, as a matter of law, that Dr.
Scheer failed to meet this burden because Dr. Wampler-Adams
testified without contradiction that she relied upon Dr. Scheer’s
"workup" when she made the decision to discharge
Atkinson. In addition, the majority reasons that even though Dr.
Wampler-Adams had the last opportunity to take acts which would
have substantially increased Atkinson’s probability of survival,
Dr. Wampler-Adams’ failure to act did not entirely sever the
chain of proximate causation set in motion by Dr. Scheer’s
The majority fails to consider the effect of
the testimony of Dr. Baskerville that the application of
nitroglycerin stopped Atkinson’s heart attack for the period
during which it was applied. This evidence establishes that, at
the time Scheer terminated his treatment of Atkinson, she was in
a stable condition and had not been discharged from the emergency
room and was available to be admitted to the cardiac unit of the
hospital at that time by Dr. Wampler-Adams. These facts
distinguish this case from Jenkins. Moreover, they create
a jury issue on causation.
Dr. Wampler-Adams’ reliance upon Dr. Scheer’s
"workup" may well explain in part her decision to
discharge Atkinson. However, that reliance at best creates a
factual issue whether Dr. Wampler-Adams’ conduct was a
superseding intervening cause or the sole proximate cause of
Atkinson’s death. This is so simply because, on the evidence
presented, reasonable persons could have differed as to whether
Dr. Wampler-Adams’ conduct so entirely superseded the operation
of Dr. Scheer’s failure to admit Atkinson to the hospital, that
it alone, without Dr. Scheer’s alleged negligence contributing
thereto in the slightest degree, caused Atkinson’s subsequent
death. Accordingly, since a factual issue was presented in the
context of this causation issue, Scheer was entitled to present
expert opinion in support of his theory of non-liability.
For these reasons, I would affirm the judgment
of the trial court.