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NICHOLS v. KAISER FOUNDATION HEALTH PLAN (59849)


NICHOLS

v.

KAISER FOUNDATION HEALTH PLAN


April 16, 1999
Record No. 981388

MARY H. NICHOLS

v.

KAISER FOUNDATION HEALTH PLAN OF THE
MID-ATLANTIC STATES, INC.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
Present: All the Justices
OPINION BY JUSTICE A. CHRISTIAN COMPTON


Appellant Mary H. Nichols, the plaintiff below,
had been a patient and subscriber since at least 1990 of appellee
Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc., a
defendant below. Kaiser operated various medical facilities
available to its subscribers, including pharmacies at Falls
Church and Reston staffed by its employees.

In this action for damages, the plaintiff
alleged that while being seen by a Kaiser physician in April 1995
for respiratory disease she was given a prescription for medrol,
a steroid medication. The plaintiff further alleged that the
prescription was filled at Kaiser’s pharmacy at Falls Church and
refilled at Kaiser’s pharmacy at Reston during that month. She
also alleged that, without her knowledge, the pharmacies
negligently provided the wrong medication, namely dexamethasone,
a steroid five times more potent than medrol.

The plaintiff further alleged that in May 1995
she discontinued taking the wrong medication and resumed taking
the correct medication. Thereafter, plaintiff alleged, she was
treated by Kaiser’s physicians in an effort to relieve the
pronounced side effects she suffered from taking the wrong
medication.

The plaintiff also alleged that Kaiser’s
pharmacy employees failed to comply with the applicable standard
of care in the dispensing of her prescriptions. As a result,
plaintiff alleged, she has suffered permanent injury, sustained
expense, and incurred other losses, for which she sought recovery
in damages.

In a grounds of defense, Kaiser admitted
responsibility for the conduct of its pharmacy employees who,
acting within the scope of their employment, dispensed medication
to the plaintiff. Kaiser also admitted that plaintiff had
erroneously been given dexamethasone, as alleged. Kaiser denied,
however, that the negligence of its employees proximately caused
the injuries and damages alleged by plaintiff.

In a March 1998 jury trial, the defendant moved
to strike the plaintiff’s evidence both at the conclusion of the
plaintiff’s case-in-chief and at the conclusion of all the
evidence. The grounds of the motions were, first, that the
plaintiff had not presented any expert testimony that the
pharmacists had breached the applicable standard of care and,
second, that the plaintiff failed to present expert testimony of
causation, viz., that her "complaints were as a
result of taking dexamethasone."

The trial court denied the motions on the first
ground, ruling expert testimony was unnecessary because a jury
could understand, without the aid of such testimony, that
dispensing wrong medication is a breach of a pharmacist’s
standard of care. The court took the second ground of the motions
under advisement, stating it was "concerned with the
causation testimony."

The jury found for the plaintiff, fixing her
damages at $75,000. The defendant renewed its motion to strike
the plaintiff’s evidence and moved the court to set the verdict
aside.

Following briefing and argument upon the
motions, the court granted them "on the basis there was
insufficient expert evidence of causation." We awarded the
plaintiff this appeal from the April 1998 final judgment entered
in favor of the defendant.

The sole question presented is whether the
trial court erred in ruling there was insufficient expert
evidence of causation to present an issue for the jury.

Settled principles guide our consideration of
the facts. "When the verdict of a jury has been set aside by
the trial court, the verdict is not entitled to the same weight
upon appellate review as one that has received the trial court’s
approval. But in considering the facts under these circumstances,
the appellate court will accord the plaintiff benefit of all
substantial conflicts in the evidence and all reasonable
inferences that may be drawn from the evidence." Commercial
Bus. Sys., Inc.
v. Halifax Corp., 253 Va. 292, 296,
484 S.E.2d 892, 894 (1997).

There are few conflicts in the evidence. The
plaintiff’s medical evidence was presented through the testimony
of Kaiser employees supplemented by her Kaiser medical records.
The focus of the controversy is upon the two-month period of
April-May 1995.

The plaintiff’s principal witness was Dr.
Ronald J. Klayton, a Kaiser physician specializing in internal
medicine with a subspecialty in pulmonary diseases. He first
treated her on March 15, 1995 because her regular pulmonary
physician was on vacation. The plaintiff, born in 1932, came for
treatment of lung disease and sinus drainage.

The plaintiff’s medical records, examined by
Klayton, revealed that her lung disease had been "severe in
nature." At the time, the plaintiff was taking a number of
medications including the steroid medrol, 16 milligrams (mg) per
day, and two other steroids. Following an examination of
plaintiff, Klayton concluded she "had severe chronic
obstructive pulmonary disease."

During the first visit, Klayton advised her to
double the dose of medrol to 32 mg per day. He increased the
dosage of some of her other medications and prescribed an
antibiotic. Klayton understood that plaintiff had been taking
various doses of either medrol or prednisone, another steroid,
for two or three years.

On March 22, plaintiff returned to see Klayton.
She was "feeling better" and Klayton felt that her lung
disease had improved due to the increase of the medrol dose and
institution of the antibiotic. During that visit, the medrol dose
was reduced to 28 mg per day and she was started on another
medication to help loosen thick secretions.

On April 5, Klayton’s "initial
prescription" for medrol 4 mg tablets was filled for
plaintiff at Kaiser’s Falls Church pharmacy. It was filled
correctly as medrol but it was entered into the pharmacy computer
system incorrectly as dexamethasone 4 mg tablets. When plaintiff
refilled the prescription on April 13 at Kaiser’s Reston
pharmacy, dexamethasone was dispensed, and plaintiff began taking
it. That medication is "about five times as potent" as
medrol, according to Klayton.

Plaintiff saw Klayton on April 5 and May 3. On
May 3, he diagnosed her as "having diabetes secondary to
steroids." Klayton was unaware that plaintiff was "on
dexamethasone." According to Klayton’s review of plaintiff’s
medical record, prior to April 5 no physician had noted in
writing in the record a diagnosis of diabetes nor had any
physician indicated in writing in the record that he had
undertaken to actively treat her for diabetes.

On May 3, plaintiff "was upset over some
bruises on her skin" and Klayton observed "a hemorrhage
underneath the skin. It looks like a black and blue mark."
Plaintiff’s glucose level was 314 according to one test and 392
according to another. The "normal range" for a person
like plaintiff was 118 and her readings were "way too
high," according to Klayton. He immediately began treating
plaintiff’s diabetes and asked that she return to see him the
next day.

Upon plaintiff’s return on May 4, Klayton
learned that she had been taking dexamethasone. He said she was
taking 16 mg of dexamethasone and getting the equivalent of 80 mg
of medrol.

On that date, he noted in her record an
"assessment" of "dexamethasone induced
hyperglycemia." He testified: "I thought that the
dexamethasone had induced her high blood sugar."
Elaborating, the physician stated: "I meant that she had
what’s called secondary diabetes. In this case, secondary to the
use of a steroid."

Klayton was asked: "So you assessed her as
having a high sugar level because of the dexamethasone she was
taking?" He answered: "Because that was the steroid she
was taking. I mean if she was on Medrol I would have blamed it on
that. They both can do it. But she was on dexamethasone."

Klayton was asked to describe the side effects
he noticed "as a result of the amount of dexamethasone she
was taking if she was substituting one dexamethasone tablet for
one Medrol tablet" for the period of time in question. He
responded that "the side effects are identical. It’s only
because she was on dexamethasone that we can say they were due to
the dexamethasone."

Klayton then described the following side
effects experienced by plaintiff: Bruising, elevated blood sugar,
being emotionally distraught and depressed, difficulty in
sleeping, leg weakness, hip pain upon movement, swelling of her
body, extreme thinning of skin, and appearing
"cushingoid." Klayton described plaintiff’s cushingoid
appearance: "It’s a plethoric face. Weight primarily
central, with thin arms and legs. And there tends to be a
deposition of fat over the upper part of the back."

There was no reference in the plaintiff’s
medical record from January 1, 1995 through April 4, 1995
"where a physician at Kaiser assessed her as being
cushingoid." On April 14, 1995, a Kaiser physician had
written in her record, "Appears cushingoid." There was
no reference in her record prior to April 5 "where a
physician ha[d] made a physical exam and noted the extreme
thinning of her skin."

On May 4, Klayton asked plaintiff to
"restart the Medrol in a dose of 16 milligrams a day and
stop the dexamethasone." He examined her on May 8, May 10,
and May 15.

On May 8, her blood sugar reading was 303 and
her diabetes "wasn’t doing well." On May 10, her blood
sugar reading was "down to 144 . . . just getting
close to the normal of 118." On May 15, her diabetes was
"well controlled." Plaintiff’s last visit to Klayton
was on May 24, 1995; she "had a very prominent cushingoid
appearance."

The plaintiff, a school teacher, testified
that: "Once I got this wrong medication, this is when all
these problems started coming up one after another." She
stated that during the period from January to the end of March
1995, she "was doing very good, except I usually would get
sinus infections or bronchitis. And then it would go to
asthma." She was "doing great" emotionally, she
said.

She was asked to describe changes that took
place in her physical condition from April through the first few
days of May 1995. She testified that she "became very
hyper," that she could not "seem to sit down at
all," that she could not sleep at night, that she
"started noticing this huge round face and these big lumps
on my neck," that her "stomach just started to
protrude," that she gained weight, that her "skin would
just split," and that she began "getting all these
marks if I would just bump against anything." She testified
that "all this started happening" at "the end of
April."

The plaintiff’s son testified he saw his
mother, who lived alone, at least weekly from 1994 through March
1995. According to the son, during this period she was
"fine" and worked daily "at the schools," she
"seemed healthy," and she was "very happy"
emotionally.

The son testified he observed his mother weekly
during the period April-May 1995. He corroborated the plaintiff’s
testimony about the changes in her physical and emotional
condition during that period, adding that she began growing
facial hair.

The defendant presented the testimony of Kaiser
physicians who had treated the plaintiff from 1990 through 1996.
In sum, this testimony, as well as her medical record during that
period, revealed a continuing problem with emphysema (chronic
obstructive pulmonary disease) and chronic sinusitis. She had
been smoking one pack of cigarettes daily for 40 years.

In July 1991, a physician noted she had
"[t]rouble with steroids." In October 1992, a physician
noted she was taking prednisone ("an oral steroidal
medication"), was having difficulty sleeping, and was
feeling "hyper." In November 1992, a physician noted
the plaintiff "was still smoking." In January 1993, a
physician found that plaintiff "has a lot of side effects
from taking Prednisone" such as "restlessness,
insomnia, [and] becoming hyper."

On August 16, 1993, plaintiff was prescribed
medrol for the first time, to replace prednisone. Several days
later, her physician decreased the dose of medrol from 40 mg to
32 mg daily because she was "tolerating" the medication
and "feeling much better;" she was experiencing no
"unpleasant side effects."

In April 1994, a physician noted plaintiff had
gained weight after having stopped smoking during the previous
September. In May 1994, plaintiff had been taking medrol 48 mg
daily for four days and reported complaints of
"bloating" and "being moody."

During the last six months of 1995 and during
1996, plaintiff’s physicians were of the opinion "that she
developed the diabetes or high glucose condition due to
steroid." She had become "steroid dependent" due
to her lung disease because "her condition would aggravate
if she would try to come off the steroid." She continued to
exhibit many of the side effects associated with steroid use to
the time of trial.

On appeal, urging affirmance of the judgment
below, defendant bases its argument on what it says is the
following question presented: "Is expert testimony required
to differentiate between the effects of taking dexamethasone in
an unknown quantity for an unknown number of days and the effects
related to continuing on medrol on a daily basis for at least ten
months, or is the difference sufficiently obvious to be within
common knowledge?" That is not the question presented.

Furthermore, the defendant builds its argument
on a contention never made in the trial court. Defendant argues
"[t]here was no evidence and no one knows how many of the
wrong pills Nichols took between April 13 and May 4, 1995, when
the error was discovered." Thus, defendant contends,
"the jury was forced to render a judgment based upon
whatever they speculated was the amount of dexamethasone consumed
by Nichols." This argument was not made in the trial court
and we will not consider it for the first time on appeal. Rule
5:25. Indeed, the record establishes the plaintiff ingested at
least 183 dexamethasone tablets during the 21-day period in
question, an average of about nine pills per day.

The proper question to be decided, as we have
said, is whether the trial court erred in ruling there was
insufficient expert evidence of causation to present an issue for
the jury. On the subject of causation, this case is a hybrid as
it relates to the necessity of presenting expert testimony in
matters strictly involving medical science as opposed to
accepting testimony of lay or nonexpert witnesses who are
familiar with a person whose physical condition is in question. See,
e.g., Raines v. Lutz, 231 Va. 110, 113, 341
S.E.2d 194, 196 (1986) (expert testimony ordinarily necessary to
establish that health care provider’s deviation from standard of
care was proximate cause of claimed damages); Todt v. Shaw,
223 Va. 123, 127, 286 S.E.2d 211, 213 (1982) (lay testimony of
causal connection between automobile accident and injury
admissible even when medical testimony fails to expressly
establish such connection); Roll ‘R’ Way Rinks v. Smith,
218 Va. 321, 330-32, 237 S.E.2d 157, 163-64 (1977) (causal
connection between accident and permanent disability factual
matter for jury even though medical testimony never
"formally pronounced" such connection); and Pepsi-Cola
Bottling Co.
v. McCullers, 189 Va. 89, 97-98, 52
S.E.2d 257, 260-61 (1949) (opinions of lay witnesses on causation
generally limited to opinions upon physical condition and may not
extend to matters determinable only through peculiar experience,
knowledge, and training of a physician).

Here, plaintiff did not present expert
testimony in the strict sense of that term, that is, a witness
was not formally qualified who responded to hypothetical
questions. Nevertheless, there was abundant opinion testimony
from plaintiff’s treating physicians, particularly Dr. Klayton.
In addition, lay testimony was offered from the plaintiff and her
son upon the plaintiff’s physical and emotional condition as it
appeared before and after the critical April-May 1995 period.

Consequently, the case reduces to whether there
was sufficient evidence, comprised of medical opinion and lay
testimony, to present a jury question on causation. We answer
that query in the affirmative; testimony from a "pure"
expert witness was unnecessary.

The evidence showed that, prior to April 1995,
plaintiff had suffered from a severe respiratory disease for at
least five years. She had been taking various steroid medications
during the five-year period and had experienced side effects to a
moderate degree sporadically during that time. She took medrol
for the first time on August 16, 1993. Over the next 20 months
until April 1995, she used medrol in varying doses and tolerated
the medication with few unpleasant side effects even though she
had a history of "trouble" with steroids. From January
1995 to April 1995, she was "doing very good"
physically, except for her respiratory condition, and "doing
great" emotionally.

Then, her health worsened dramatically. On
April 13 she began taking dexamethasone, a steroid five times as
potent as medrol, which Kaiser’s Reston pharmacy negligently had
furnished her on that day. The very next day, April 14, she
appeared cushingoid to a Kaiser physician. Her side effects were
exacerbated and multiplied to a degree more severe than ever
before. She testified that once she "got this wrong
medication, . . . all these problems started coming up
one after another." She said that "all this started
happening" at "the end of April."

On May 3, after taking heavy doses of the wrong
medication for 20 days, Klayton found her glucose level was
"way too high." The next day, May 4, Klayton discovered
plaintiff had been on the wrong medication. He was of the opinion
that plaintiff suffered from "dexamethasone induced
hyperglycemia" and that "the dexamethasone had induced
her high blood sugar," as well as the other severe side
effects enumerated in his testimony.

This evidence, and the other facts in the trial
record, were sufficient to present a question for the jury upon
whether the defendant’s negligence caused the effects of which
the plaintiff complains. One moment she was relatively well and
the next moment she was ill; intervening between those two
conditions was defendant’s negligence. Thus, medical facts and
medical opinion combined with lay testimony, without the addition
of "pure" expert testimony, entitled the plaintiff to
have a jury weigh the evidence of causation, and the trial court
erred in ruling to the contrary.

Hence, the judgment below will be reversed, the
verdict of the jury will be reinstated, and final judgment on the
verdict will be entered here.

Reversed and final judgment.

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