Medical Malpractice: ‘Empty chair’ instruction was properly refused

Where the decedent died from a ruptured aortic aneurysm, the trial court correctly instructed the jury on the issue of causation, and correctly refused to give appellant estate administrator’s proposed “empty chair” instruction.

Further, the defense’s causation expert was properly allowed to testify about the risk of complications because such testimony was not speculative.

A defense verdict in this medical malpractice action is affirmed.

Background

“Joan Ison went to her primary care physician (PCP) complaining of chest pain. Ison had a known aortic aneurysm and x-rays obtained on the order of her PCP indicated that her aneurysm may have changed.

“Accordingly, Ison went to the emergency room for more detailed testing. At the ER, Ison presented with severe—10 out of 10—chest pain and mid-back pain.

“The ER doctor treating Ison was Dr. Jeff Sensenig, who reviewed her medical history, performed a physical exam, and ordered blood work and a CT scan.

“The CT scan—interpreted by another doctor, a radiologist—revealed that the aneurysm was not ‘significantly changed’ when compared to a CT scan conducted the previous year.

“Sensenig called the vascular practice treating Ison and spoke with the ‘on-call’ doctor to relay the details of the new CT scan. The on-call doctor recommended that Ison follow-up with her treating vascular physician the next week but did not believe that the aneurysm was causing Ison’s symptoms.

“Sensenig accordingly discharged Ison from the ER and told her to return if her symptoms worsened.

“Eight days later, Ison returned to the ER complaining again of severe chest and back pain. Ison reported that the pain level was the same as the last visit.

“Sensenig again ordered a CT scan—though this specific scan was different from the previous CT scan in its diagnostic value for aneurysms. A second radiologist reviewed this CT scan and concluded that there was no change in Ison’s aneurysm from June 10.

“Sensenig did not call Ison’s vascular practice on this occasion. Sensenig reviewed Ison’s chart which revealed that her vascular surgeon had canceled the follow-up appointment after Ison’s first ER visit.

“Sensenig decided to admit Ison to the hospital. The hospitalist on call then became Ison’s treating physician until the next morning when another hospitalist took over Ison’s care.

“Prior to transferring Ison’s care to the hospitalist, Sensenig discussed Ison’s visit and her previous medical history, including the fact that Sensenig called Ison’s vascular practice on the 10th. On June 20, a CT scan was ordered that revealed that Ison’s aneurysm had ruptured or was leaking.

“Because the hospital where Sensenig worked and where Ison was admitted did not have the capacity to perform an aneurysm repair surgery, the hospitalists sought to transfer Ison to another hospital, but she died before the transfer could be made.

“Burch, as the administrator of Ison’s estate, filed a complaint against all of the doctors involved in Ison’s care; however, she settled or non-suited the cases against all of the doctor-defendants except for Sensenig.”

She appeals a defense verdict.

Empty chair

“Burch assigns error to the circuit court’s decisions to deny her proposed ‘empty chair’ instruction and to grant Instructions 18 and 19, the so called ‘mere happening’ instructions. …

“Burch’s proposed instruction instructed the jury that ‘You may not consider whether another doctor or person was negligent or contributed to Joan Ison’s injuries and death.’ …

“In this case, the jury was fully and fairly instructed on the issue of causation.

“Instruction 10 instructed the jury to answer ‘if the defendant was negligent, was his negligence a proximate cause’ of Ison’s death. (Emphasis added).

“Instruction 11 instructed the jury to find for Burch if she proved that ‘Dr. Sensenig’s negligence was a proximate cause of Joan Ison’s death.” (Emphasis added).

“Instruction 15 informed the jury that ‘There may be more than one proximate cause of death. If the negligence of a defendant proximately caused the death of Joan Ison, the negligence of the defendant is a proximate cause of Joan Ison’s death even if there were other acts or omissions that caused Joan Ison’s death.’

“The jury was fully and fairly informed of the relevant legal principle of causation, and the circuit court was not required as a matter of law to provide an additional instruction that was cumulative of the instructions already given.”

‘Mere happenings’

“Burch objected to Instructions 18 and 19 which read, respectively: ‘The fact that Joan Sheets Ison died does not, of itself, entitle the plaintiff to recover[,]’ and ‘The fact that a doctor’s efforts on behalf of his or her patient were unsuccessful does not, by itself, establish negligence.’

“Burch argues that Instruction 19 was 1) argumentative, 2) unsupported by the law, 3) misleading, and 4) cumulative. On appeal, Burch does not argue that Instruction 18 was argumentative, unsupported, or misleading, but simply cumulative. …

“[T]he instructions given were not misleading. Burch argues that Instruction 19’s use of the word ‘efforts’ meant that the jury could have interpreted the instruction as excusing the physician’s negligence so long as the physician put a good-faith effort forward. …

“Burch contends that the word ‘efforts’ implies ‘an honest or excusable mistake.’ Burch’s argument stretches the language of Instruction 19 too far. …

“Instruction 19 does not suggest that efforts made by the physician absolve the physician of liability if they deviate from the standard of care; instead, Instruction 19 informs the jury that the lack of a good outcome, standing alone, does not prove negligence.”

Defense expert’s testimony

“Dr. Lavingia, defendant’s causation expert, testified at trial that Ison was a high-risk candidate for repair surgery and that it was his opinion, held to a fair degree of medical probability, that she would have suffered a complication from the surgery. …

“Dr. Lavingia also opined that Ison would not have had the surgery even if Sensenig [the appellee] had consulted with a vascular surgeon. Burch objected to this testimony on the grounds that it was speculative. The circuit court overruled this objection. …

“Burch argues on appeal that Dr. Lavingia should not have been permitted to testify as to the ‘possibility’ that Ison would have suffered a complication from an aneurysm repair surgery. …

“Dr. Lavingia’s testimony in this case was not that the possible risk of complications could have caused Ison’s death regardless of whether the surgery took place, but that, to reasonable degree of medical probability, these risks of complications meant that a vascular doctor would not have operated on Ison at all in the first place. This testimony is not speculative, and the circuit court did not err in overruling Burch’s objections.”

Affirmed.

Burch v. Sensenig, et al., Record No. 0194-22-1, March 19, 2024. CAV (unpublished opinion) (Humphreys) From the City of Newport News Circuit Court (Flythe). Lee Livingston (Anthony T. Greene; Livingston Law Group PLLC, on briefs), for appellant. Elaine D. McCafferty (Donna L. Foster; Woods Rogers Vandeventer Black PLC, on brief), for appellee. VLW 024-7-093, 10 pp.