Appeals court reverses $1.5M medical malpractice verdict

The Court of Appeals of Virginia reversed a trial court’s decision to award a patient of a Loudoun optometry office $1.5 million in a medical malpractice case.

In reviewing the case, the appeals court determined that the patient did not present sufficient evidence to sustain the jury verdict, noting that no expert testified to establish the standard of care “applicable to a retinal specialist upon referral by an ophthalmologist.”

Notably, the trial court “did not ‘think’” an expert called by the patient was a retina specialist, and that the expert “conceded he was not a retinal specialist and lacked the requisite training and experience to practice as one.”

“Given that no expert testified to establish the standard of care applicable to a retinal specialist upon referral, the evidence was insufficient as a matter of law to establish causation-in-law,” Judge Dominique A. Callins wrote for the appeals court.

Callins’ Feb. 10 opinion in Loudoun Eye Care v. Bartin (VLW 026-7-047) was joined by Judges Mary Grace O’Brien and Vernida R. Chaney.

Norfolk attorney W. Thomas Chappell, who represented Loudoun Eye Care and Dr. Gitanjali Baveja on appeal, did not respond to requests for comment by deadline.

Washington, D.C., attorney Christine Bondi, who represented Loudoun Eye Care and Baveja at the trial court level, told Virginia Lawyers Weekly that the highlight of the decision was in how it “takes failure to refer cases outside of the realm of speculation.

“Without this decision, a plaintiff could say that, if a defendant had only referred a plaintiff to a specialist, then that specialist could have waved a wand and magically diagnosed the patient with any condition,” Bondi said. “Now with this decision, the plaintiff has to prove that the diagnosis would have been reasonable to make, that the treatment would have been reasonable to perform and that the expected outcome would have been reasonable to expect.”

McLean attorney Brien Roche, who represented plaintiff Michael Bartin, told Virginia
Lawyers Weekly that he will be filing a petition for rehearing/rehearing en banc in this case.

Referral

This case stemmed from actions beginning in 2019, when Bartin “saw a flash” when moving his head fast, leading him to consult an ophthalmologist at Loudoun Eye Care. The doctor noted he did not present with age-related macular degeneration or glaucoma despite family history of the conditions.

After diagnosing Bartin with a floater in one eye and cataracts in both, the ophthalmologist referred Bartin to a retinal specialist “to investigate whether Bartin had other ‘holes or tears’ in his retina.”

After several visits, the eye condition that caused the floater was resolved, and the specialist cleared Bartin for cataract surgery with Baveja, a surgical ophthalmologist. Baveja operated on Bartin in March 2020.

During the procedure, Baveja noted “a small tear in the posterior capsule of Bartin’s
eye,” and opted not to refer Bartin to a retinal specialist since she felt she could monitor Bartin’s eyes.

Following the procedure, Bartin’s vision “dramatically depreciated,” and he sustained corneal swelling, as well as increased eye pressure. Baveja did not refer Bartin to a retinal specialist during that period.

Bartin returned to the retinal specialist 11 days after surgery for a previously scheduled appointment, where it was discovered Bartin had a retinal detachment. Surgery was scheduled within 24 hours.

Ultimately, Bartin lost “somewhere around 85%” of his vision, and his optic nerve sustained damage.

Trial court

Bartin sued LEC in March 2022, and the Loudoun County Circuit Court conducted a five-day trial on the matter.

During the trial, Bartin called an expert in ophthalmology and cataract surgery, which LEC objected to. During voir dire, the witness stated that he was not a retinal specialist, and that retinal specialists “undergo two years of additional training” and use equipment that he was not competent to use.

The court allowed the witness to testify to the standard of care applicable to retinal specialists.

The circuit court jury returned a verdict in favor of Bartin for $1.5 million, with pre- and post-judgment interest at 8% per annum.

LEC motioned to set aside the jury’s verdict post-trial, arguing that Bartin failed to present expert testimony establishing the standard of care. The motion was denied, and LEC subsequently appealed.

Reversal

On appeal, LEC argued that Bartin’s malpractice claim was insufficient due to “want of testimony about the standard of care applicable to a retinal specialist upon referral by an ophthalmologist.”

“LEC’s appeal presents a novel question about the character of evidence required in failure-to-refer cases regarding the actions that would be taken by the physician upon referral,” Callins wrote.

Citing the 2018 Supreme Court of Virginia decision in Dixon v. Sublett, Callins wrote that the commonwealth’s high court had found a claimant unsuccessful in presenting sufficient evidence when they fail to present testimony “to establish the nature of the treatment the decedent could have undergone” if referral was timely.

“As our Supreme Court held [in Dixon], fatal to the claimant’s action was her failure ‘to present any testimony from an expert witness to identify what a general surgeon would have done’ upon immediate referral, or how an immediate referral could have changed the outcome,” Callins wrote.

But the court was silent on whether expert testimony has to come from an expert in the field of the physician being referred to or relate to the standard of care applicable to that physician.

“We conclude that Dixon logically extends to require, for purposes of causation, presentation of expert testimony to establish the standard of care applicable to a physician upon referral,” Callins wrote.

While the record in the present case contains the actions taken once the retinal specialist saw Bartin, Callins noted the record did not clarify what actions a retinal specialist could have taken upon prompter referral, whether treatment options could have lessened the long-term outcomes and whether and how the treatment would have differed with prompter referral.

“Combined with the fact that [the expert witness] conceded he was not a retinal specialist and lacked the requisite training and experience to practice as one, his testimony is inadequate to support Bartin’s claim,” Callins wrote.

The appellate court reversed the trial court’s judgement and entered final judgment in favor of LEC.

Reaction

Bondi, who said the case has become “near and dear” to her heart, said this decision “is really just another procedural safeguard that’s put in place for defense attorneys to safeguard their clients.”

“I think that this issue is really important,” Bondi said. “When you start to consider the possibilities of not having this kind of case law in effect, you really start to see what the problems of it can be.”

Bondi presented a hypothetical where a patient has a rare bacterial illness and alleges their primary care doctor should have sent the patient to an emergency room.

“The plaintiff can allege that the emergency room would have tested for the extremely rare illness and would have prescribed this extremely narrow course of treatment, without any reference to whether or not that would be reasonable,” Bondi
said. “With this decision, that would require the plaintiff’s expert to prove that testing for this very rare illness would have been reasonable.”

Bondi said that as she worked on the case, she became “really passionate” about the issue at hand.

“I’m happy that we retained appellate counsel and that my client agreed to continue to forge forward, and we’ll continue if there’s any further movement on the appellate end.”