POLIQUIN, et al. v. DANIELS
ALBERT, et al. v. DANIELS
June 6, 1997
Record No. 961719
JAMES R. POLIQUIN, M.D., ET AL.
FELICIA DANIELS, ADMINISTRATRIX
OF THE ESTATE OF SAMUEL DANIELS, DECEASED
Record No. 961761
M. ABEY ALBERT, M.D., ET AL.
FELICIA DANIELS, ADMINISTRATRIX
OF THE ESTATE OF SAMUEL DANIELS, DECEASED
OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
Present: All the Justices
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.
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.
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
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,
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
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
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
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.
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, 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:
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 certified general
surgeon. He is licensed to practice general surgery in North
Carolina and has practiced his specialty in North Carolina since
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
The question whether a witness is qualified to express an
expert opinion rests within the sound discretion of the trial
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.
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 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.
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. 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.
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 (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
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
 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 not to have
chest pain, and, yet, they have a major heart problem going
On brief, Poliquin presents the question whether the Plaintiff
showed a breach of the standard of care for general 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).