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Court: Judge too quick to strike med mal case

scvseal_feaExpert testimony that the timely examination of an obstetrical patient by the defendant doctors would likely have saved the woman’s life was enough to let the wrongful death case go to a jury, the Supreme Court of Virginia has ruled.

While cross-examination may have undermined the plaintiff’s experts, the trial judge considering a motion to strike was required to view all of the evidence in the light most favorable to the plaintiff, the court said.

The decision means a new trial opportunity for the patient’s estate in Charlottesville Circuit Court.

The Supreme Court’s Feb. 13 opinion is Tahboub v. Thiagarajah (VLW 020-6-008).


The case arose from a complicated pregnancy, according to the summary in the opinion, written by Justice William C. Mims. Patient Jaclyn Tahboub was diagnosed with an incompetent cervix in her first pregnancy in 2011. Charlottesville obstetrician Siva Thiagarajah placed a cervical cerclage to prevent premature birth.

In 2013 during Tahboub’s second pregnancy, Thiagarajah placed a second cerclage. Two days later, on Dec. 20, Tahboub reported discomfort and pain at a follow-up appointment. Thiagarajah discounted the suggestion of an infection.

On Dec. 22, Tahboub called to report continuing pain and a fever. By telephone, Thiagarajah prescribed nifedipine, a cardiac muscle relaxer and directed use of Advil, but did not conduct a physical examination.

On Dec. 26, Tahboub called again and reached the on-call physician, Mikhail Michael Levit. Levit also instructed the patient to take medication, but did not do a physical exam. He later advised her to go to a local hospital.

At the hospital, a nurse recorded Tahboub was experiencing dizziness, light-headedness, tachycardia, hypotension, discomfort and contractions with reports of a fever and a change in vaginal discharge. The assessment was recorded at 3:24 a.m.

Levit did not immediately go to the hospital and provided only basic orders for admission. Tahboub’s membranes ruptured at 4:44 a.m. By 5:27 a.m., Tahboub had a temperature of 100.8 degrees. She was prepared for transfer to a hospital with better neonatal facilities. Levit arrived at 6:05 a.m.

At the high level facility, Tahboub presented with heavy bleeding, ruptured membranes, pus discharge and multiple organ dysfunction. Doctors suspected chorioamnionitis and feared placental abruption and disseminated intravascular coagulopathy.

The staff administered a triple antibiotic “cocktail” and a blood transfusion. Blood cultures later confirmed E. coli bacterial infection.

After an emergency Caesarean section, Tahboub suffered major hemorrhaging. She died Dec. 31.

Motion to strike

Tahboub’s husband, as administrator of her estate, sued both Thiagarajah and Levit. At trial, the estate offered expert testimony from fetal medicine specialist Frederick Gonzalez and infectious disease specialist Mohammad Sajadi.

At the end of the plaintiff’s evidence, Circuit Judge Richard D. Taylor struck the evidence and entered judgment for the defendant doctors. He agreed with the defendants that the evidence was insufficient to prove causation.

Causation at issue

On appeal, plaintiff’s counsel contended Gonzalez had testified about what the defendants could and should have done and Sajadi testified that their failure to do it allowed the infection to progress and ultimately kill Tahboub.

Gonzalez testified the defendants failure to treat the infections “was the direct cause of her death,” argued W. Joseph Owen III, counsel for the administrator of the Tahboub estate. “

“The evidence could not have been clearer,” Owen told the justices at oral argument.

The causation connection was broken, the defendants countered.

“Doctors face medical crises on a regular basis and, in the wake of a … tragic medical outcome, patients’ experts with the gift of hindsight point to ways treatment could have been different or better,” said Frank K. Friedman, appellate defense counsel.

Court precedent requires more than just criticism of the treatment, Friedman continued. It requires the expert to give details about “the care that should have been provided, its feasibility and its ultimate effect on the medical outcome,” Friedman said.

The defense contended Tahboub’s estate had failed to show that its experts’ proposed treatment was feasible or would have been effective.

Standard of review

Mims’ review of Virginia law in the court opinion sets a high bar for a motion to strike.

Even if the plaintiff’s evidence has been “discredited or impeached,” the trial judge must accept it as true at the close of the plaintiff’s case, the high court said.

“The court must rule based on the presumption that the jury will believe all the evidence that the plaintiff adduced. To do otherwise would invade the province of the jury and assess the weight of the evidence,” Mims wrote.

Reversed and remanded

The court concluded the evidence of causation was sufficient to withstand the motion to strike. Sajadi had testified that, based on the progression of symptoms, Tahboub probably had an infection on Dec. 22 and if Thiagarajah had diagnosed and treated it then, “she would have survived.”

Gonzalez said the failure to consider and treat infection by both defendants “was a departure from good and accepted standards of medical care, and was a direct cause of her death,” Mims wrote, quoting the testimony.

The experts testified that proper care would have revealed the infection allegedly present on Dec. 22 and led to treatment that would have saved Tahboub’s life, either on that day or on the morning of Dec. 26, the court said.

The plaintiff’s experts’ testimony satisfied the applicable standard “because it specifically identified what the defendants should have done, which would have led to prompt diagnosis and treatment of the otherwise fatal condition,” Mims wrote.

Cross-examination elicited testimony that a jury could view as mitigating the weight or credibility of the evidence, but that evaluation was for the jury to make, the court said.

The high court reversed the judgment for the defendants and remanded the case for a new trial.