ROSEN, et al..
February 26, 1999
Record No. 980371
LEONARD A. ROSEN, M.D., ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
Present: All the Justices
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
In this medical malpractice suit, we consider
whether the trial court erred in giving a jury instruction on a
physicians duty to continue his services as long as they
are necessary where the evidence shows that another physician
within the treating physicians group practice had been
advised that the patient might need additional care during the
treating physicians temporary absence.
"According to settled principles of
appellate review, we will consider the evidence in the light most
favorable to the plaintiff, who comes to this Court armed with a
jury verdict approved by the trial judge." Salih v. Lane,
244 Va. 436, 438, 423 S.E.2d 192, 194 (1992). The parties dispute
much of the evidence, including that relevant to the alleged
primary negligence of the treating physician. However, because we
awarded an appeal limited to the issue of whether a particular
jury instruction was proper, we will recount only those facts
relevant to our resolution of that issue. Jeld-Wen, Inc. v.
Gamble, 256 Va. 144, 146, 501 S.E.2d 393, 395 (1998).
Darlene Greifenberger first became a patient of
Fairfax Ob-Gyn Associates, P.C. (the group practice) in 1988. The
group practice, a Virginia professional corporation, is owned by
and operates the medical practice of three physicians: Felicia L.
Donald, M.D., Leonard A. Rosen, M.D., and Robert L. Castle, M.D.
In 1988 and 1989, Greifenberger was treated by all three members
of the group practice in relation to her pregnancy and the
successful delivery of her second child. Dr. Donald was
Greifenbergers primary treating physician at that time, but
Dr. Rosen treated Greifenberger during some obstetrical visits,
and Dr. Castle delivered the child and administered
Greifenbergers post-partum care.
Greifenberger continued as a patient of the
group practice after this pregnancy, and on occasion received
treatment from each of the three physicians. In April 1992,
Greifenberger requested that a Norplant contraceptive device be
implanted. Dr. Donald performed the necessary procedure and later
treated Greifenberger when she complained of complications from
the implant. Because of dissatisfaction with Dr. Donalds
treatment, Greifenberger requested that she no longer receive
treatment from Dr. Donald.
On September 17, 1992, Greifenberger contacted
the group practice and advised a nurse there that she believed
she was pregnant and that she was considering terminating the
pregnancy. Dr. Rosen saw Greifenberger in the group
practices office that afternoon. A pregnancy test confirmed
that Greifenberger was pregnant. Based upon her report of the
date of her last menstrual cycle, Dr. Rosen estimated that the
pregnancy was in the seventh or eighth week of the first
trimester. After discussing the options for continuation or
termination of the pregnancy with Dr. Rosen, including the
recommendation of the manufacturer of the contraceptive device
that it be removed if the pregnancy were continued, Greifenberger
indicated that she wished to terminate the pregnancy through a
therapeutic abortion. The next day she completed the necessary
consent document and other paperwork required to schedule the
On September 22, 1992, Greifenberger was
admitted to Fair Oaks Hospital as an outpatient under the care of
Dr. Rosen to terminate her pregnancy. After a general anesthetic
had been administered, but before the abortion procedure had been
started, Dr. Rosen determined from an assessment of uterine size
that the pregnancy was more advanced than he had previously
thought, estimating that it was in the twelfth to fourteenth week
of the first trimester. Because Greifenberger had been
unequivocal in stating her desire to terminate the pregnancy and
because the dilation and evacuation procedure Dr. Rosen intended
to perform is medically appropriate to terminate a late first
trimester pregnancy, Dr. Rosen decided to go forward with the
During the procedure, however, Dr. Rosen
determined that the pregnancy had advanced beyond the fourteenth
week. Because a dilation and evacuation procedure is not
medically appropriate to terminate a more advanced pregnancy, Dr.
Rosen discontinued the procedure after approximately ten minutes.
Knowing that the procedure was incomplete, Dr. Rosen elected to
send Greifenberger "home with a medication called Methargen
to cause further medical uterine contractility to further expel
whatever remaining products of conception were left behind"
in the uterus. He also prescribed a "broad spectrum
antibiotic in the form of Keflex" to protect her from
Dr. Rosen then contacted Greifenbergers
husband in the hospital waiting room and told him that "the
operation went okay, that there [were] no problems." Dr.
Rosen further told Greifenbergers husband that
Greifenberger "would pass a small amount, a very small
amount of tissue . . . that she might bleed
. . . a little heavier than her normal menstrual
cycle." Dr. Rosen did not specifically advise
Greifenbergers husband that the abortion procedure was
Greifenberger was instructed by a hospital
discharge nurse to take additional doses of the antibiotics and
Methargen and to use a prescription pain medication as needed.
She was further instructed by the nurse to make an appointment
with Dr. Rosen in one week and to "notify your doctor if you
have heavy vaginal bleeding, severe abdominal pain or
fever." Greifenberger was discharged from the hospital
without having been informed that the abortion procedure was
incomplete. Although Dr. Rosen gave her medication intended to
induce uterine contractions and a spontaneous abortion to expel
the remaining fetal tissue, he did not inform Greifenberger that
he would be temporarily unavailable to treat her or that, if
necessary, Dr. Castle would be treating her during Dr.
Dr. Rosen was scheduled to attend a medical
conference in Chicago on the day following Greifenbergers
surgery and was to leave that evening. Before leaving the
hospital, Dr. Rosen contacted Dr. Castle, the only member of the
group practice who would be available for patient consultation
and treatment that night and for the next several days, and
informed him that Greifenbergers pregnancy had been more
advanced than had been first thought. Dr. Rosen further advised
Dr. Castle "to expect a call" because "products of
conception" had been left in the uterus and that
Greifenberger had been sent home with antibiotics, pain
medication, and the medication to cause uterine contractions to
expel the remaining tissue.
In the early morning hours of September 24,
1992, Greifenberger contacted Dr. Castle complaining of
"cramping" and "slight bleeding." Dr. Castle
was "expecting" the cramping because of the medication
given to Greifenberger and advised her to take the prescribed
pain medication and come to the group practices office the
next day. Several hours later, her husband took Greifenberger to
the emergency room. At that time she was in significant pain and
had a temperature of 101. Dr. Castle was called to the hospital
and performed surgery to complete the abortion.
On August 2, 1995, Greifenberger filed a motion
for judgment against the group practice and against Dr. Rosen
individually, alleging malpractice resulting from negligence or
gross negligence.  Among
the allegations of malpractice, Greifenberger alleged that
"Dr. Rosens post-operative care manifested an utter
disregard of prudence amounting to a complete neglect of the
safety of plaintiff and lacked due care."
After a period of extended discovery, a jury
trial was held in the trial court beginning on October 20, 1997.
Evidence in accord with the above recounted facts was received
along with expert testimony on the relevant standard of care from
witnesses for both parties. Dr. John Partridge, an expert witness
for Dr. Rosen, testified that the duty of continuing necessary
treatment does not require that physicians "be held hostage
in our own offices." Rather, "[t]he standard of care
requires that a doctor have adequate backup, skillful backup,
that there be a communication flow on issues of importance
between one doctor and another [about what] the other doctor may
have to handle."
At the conclusion of the evidence,
Greifenberger proffered the following jury instruction:
A doctor who has accepted a patient for
treatment has a duty to continue his services as long as
they are necessary. A doctor may not abandon his patient
while the services are necessary, unless he gives notice
to the patient and makes arrangements for continuing
treatment by another doctor. If a doctor fails to perform
this duty, then he is negligent.
The group practice and Dr. Rosen objected to
the instruction, contending that it was not appropriate because
the facts presented at trial did not establish a lack of
continuing care. Greifenberger contended that the instruction was
appropriate because even if Dr. Rosens association with the
group practice and his communication to Dr. Castle satisfied his
duty to continue necessary treatment, Dr. Rosens failure to
give notice to Greifenberger that he would not be available for
consultation and further treatment nonetheless constituted a
breach of that duty.
The trial court ruled that there was sufficient
"evidence upon which a correct statement of the law can be
given" as to the duty to continue necessary treatment. Based
on this ruling, the trial court granted Greifenbergers
The jury returned its verdict in favor of
Greifenberger against the group practice and Dr. Rosen, awarding
her $175,000 in damages. By order dated November 21, 1997, the
trial court affirmed the jury verdict and award of damages. We
awarded the defendants this appeal limited to the issue whether
the trial court erred in granting Greifenbergers jury
instruction on the duty to continue necessary treatment.
It has long been the rule that a trial court
should not give a jury instruction that, while a correct
statement of the law as an abstract proposition, is inapplicable
to the facts of the case. Gordon v. Virginia Electric &
Power Co., 150 Va. 442, 450, 143 S.E. 681, 683 (1928); see
also Parker v. McCoy, 212 Va. 808, 814, 188 S.E.2d
222, 226 (1972). Rather, the trial court should instruct the jury
only on those theories of the case which find support in the
evidence, see Neeley v. Johnson, 215 Va. 565, 575,
211 S.E.2d 100, 108 (1975)("an instruction should not be
given which is unsupported by the evidence"), and the
evidence relied on to support a proffered instruction must amount
to "more than a scintilla." Hatcher v. Commonwealth,
218 Va. 811, 814, 241 S.E.2d 756, 758 (1978); see also
Ring v. Poelman, 240 Va. 323, 327, 397 S.E.2d 824, 827
The instruction at issue here, commonly known
as an "abandonment" instruction, as an abstract
proposition is arguably a correct statement of the law with
respect to a physicians duty to continue to render
treatment to a patient as long as may be necessary. We have
previously addressed the nature of this duty, arising from the
physician-patient relationship, by stating that "[a]fter a
physician has accepted employment in a case it is his duty to
continue his services as long as they are necessary. He cannot
voluntarily abandon his patient." Vann v. Harden, 187
Va. 555, 565, 47 S.E.2d 314, 319 (1948). We have further stated
that "under certain circumstances, the physician has a right
to withdraw from a case, provided the patient is afforded a
reasonable opportunity to acquire the services he needs from
another physician." Lyons v. Grether, 218 Va. 630,
634, 239 S.E.2d 103, 106 (1977). The essence of this duty is the
responsibility of the treating physician to avoid a lapse in
necessary treatment to the patient.
In the present case, Dr. Rosen contends that
his action in turning over Greifenbergers treatment to Dr.
Castle for the period of Dr. Rosens absence did not
constitute an abandonment of his duty to render continuing
necessary treatment to her. Limiting our holding to the specific
facts of this case, we agree with Dr. Rosen.
It is a matter of common knowledge and
experience that physicians in a group practice regularly rotate
"on-call" responsibility for a patients treatment
during non-office hours. Moreover, here the evidence showed that
Greifenberger was aware that Dr. Rosen was a member of a group
practice, that the other members of the group practice
specialized in the same field of medicine, and that she had been
treated by all three members of the group practice at various
times. In addition, Greifenberger does not challenge Dr.
Castles qualifications to provide the treatment she
required in Dr. Rosens absence, and she made no claim
against Dr. Castle individually in this suit. Finally, the
evidence shows that although Dr. Rosen did not advise
Greifenberger of his intended absence, it is undisputed that he
made adequate arrangements for her to contact and receive
continuing treatment from Dr. Castle during that time.
Accordingly, the evidence does not support abandonment or lack of
continuing care of the patient that would justify the instruction
Finally, Greifenberger contends that even if
the trial court erred in giving the abandonment instruction, that
error was harmless, and the judgment in her favor should be
sustained since the evidence shows that Dr. Rosen was negligent
in his entire course of treatment of her. We express no opinion
on the issue of Dr. Rosens primary negligence because that
issue is not before us. However, it is undisputed that
Greifenberger presented both the issues of abandonment and
negligence by Dr. Rosen to the jury. The claim that a physician
has abandoned a patient in need of urgent, continuing medical
treatment, such as the present case, would undoubtedly tend to
inflame the emotions of a jury. Under such circumstances, giving
an erroneous instruction is not harmless. Rather, "[i]f an
issue is erroneously submitted to a jury, we presume that the
jury decided the case upon that issue." Clohessy v.
Weiler, 250 Va. 249, 254, 462 S.E.2d 94, 97 (1995).
For these reasons, we will reverse the judgment
of the trial court and remand the case for a new trial.
Reversed and remanded.
 Greifenberger named Dr. Donald as an
individual defendant in the action from which this appeal arises,
asserting that Dr. Donald was negligent with respect to the
implantation of the contraceptive device, the follow-up treatment
related thereto, and Greifenbergers unwanted pregnancy. The
jury returned a verdict in favor of Dr. Donald on these issues,
and Greifenberger has not appealed that aspect of the judgment.
Accordingly, the claims against Dr. Donald individually are no
longer at issue in this case.
Greifenberger also advanced theories of lack of informed
consent, battery, and emotional distress. Theses claims have no
direct relevance to the issue presented by this appeal.