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BRYAN v. BURT et al. (59888)

BRYAN v. BURT et al.

June 6, 1997
Record No. 961409




James H. Chamblin, Judge
Present: All the Justices

The main appellate issue in this wrongful death action,
alleging medical malpractice against both an emergency room
physician and a family practitioner, is whether the trial court
erred in striking the plaintiff’s evidence at the close of the
plaintiff’s case-in-chief.

Appellant Cindy L. Bryan, who sues as "Personal
Representative and Administratrix of the Estate of Shirley A.
Robertson, deceased," filed a motion for judgment against
appellees Steven M. Burt, D.O., and Eric J. Maybach, M.D.,
seeking damages for the alleged wrongful death of the decedent.
The plaintiff alleged that the decedent came to a hospital
emergency department complaining of severe abdominal pain. She
alleged that Burt, the emergency room physician, diagnosed
constipation as the cause of the pain when it actually was due to
a perforated ulcer. The plaintiff alleged Burt discharged the
decedent from the hospital after several hours of examination and

Subsequently, the plaintiff alleged, when the pain did not
subside, the decedent’s family contacted the office of Maybach,
the decedent’s family physician. The plaintiff further alleged
that as the result of Burt’s misdiagnosis, which Maybach
"knew or should have known of," the decedent’s
condition worsened and she died several months later while a
patient in another hospital.

In a grounds of defense, Burt denied the plaintiff’s
allegations of negligence. Maybach filed a grounds of defense
also denying he was negligent because "he was not involved
in the care and treatment of" the decedent on the day of the
alleged misdiagnosis.

Following presentation of the plaintiff’s case-in-chief during
a four-day jury trial in March 1996, the trial court sustained
the defendants’ respective motions to strike the evidence. We
awarded the plaintiff an appeal from the trial court’s April 1996
order entering summary judgment in favor of the defendants.

According to settled principles of appellate review governing
a case in which the plaintiff’s evidence has been struck at the
close of the plaintiff’s case-in-chief, we will recite the
essential facts in the light most favorable to the plaintiff. Brown
v. Koulizakis, 229 Va. 524, 526, 331 S.E.2d 440, 442

The focus of this lawsuit is upon the events of
December 13, 1992. Near 9:00 p.m. of that day, a Sunday, the
plaintiff’s decedent, age 53, went to the emergency department of
the Fauquier Hospital in Warrenton, where she was examined and
treated by Burt. She complained of pain "covering the entire
abdomen." The patient stated she had experienced "the
acute onset of the abdominal pain" about three hours

Upon examination, the patient’s "vital signs" were
normal. She gave a history of peptic ulcer disease, hypertension,
headaches, "a cholesterol problem," and "problems
with constipation." She reported that she recently had been
taking a number of different medications.

Burt ordered "lab work" and x-rays that were
"of a standard nature" and "normal in this sort of
situation." Upon making a diagnosis of constipation, the
physician ordered injection of a pain relieving drug, Toradol,
and giving of "a high soapsuds enema" about 10:00 p.m.
Near 11:30 p.m., the patient began receiving "IV fluids, to
run at approximately 500 cc’s an hour." About 35 minutes
later, she was given "an oil retention enema."

The patient was discharged near 1:00 a.m. on December 14. Upon
discharge, Burt instructed the patient to drink "lots of
water," to pursue a "high fiber diet," to take
specified doses of mineral oil, and "if no bowel
movement" resulted, to take "8 oz. of citrate of
Magnesia." She was told to return to the emergency room
"if fever or any vomiting" developed and to
"follow-up" with her personal physician on December 14
or 15 "for recheck" of her blood pressure.

The patient returned to her home, accompanied by her daughter.
The pain continued, preventing the patient from sleeping. Over
the course of the next few hours, she took the prescribed doses
of mineral oil. The pain did not subside and the medication did
not produce a bowel movement.

Before noon on December 14, the daughter called Dr. Maybach’s
office because the patient "wasn’t feeling better." The
daughter spoke with the physician’s receptionist. The daughter
called Maybach’s office again near 3:00 p.m. on the 14th, and the
receptionist relayed a recommendation from Maybach’s nurse
suggesting a laxative and an enema. Maybach was not present in
his office when either call was received, and there was no
request during either call for the physician to call the

Near 4:00 p.m. on December 14, the patient "started
getting worse." She "started looking bad" and
began "[g]asping for air." About 8:35 p.m., the
daughter took her to the emergency room of the Fauquier Hospital,
where the patient went into shock and was seen by Dr. Fortune

Within hours, Dr. J. Paul Wampler performed exploratory
abdominal surgery on the patient. As a result, she was diagnosed
as having a perforated pyloric ulcer and acute respiratory
distress syndrome (ARDS). A plaintiff’s medical expert testified
the ulcer perforated about 6:00 p.m. on December 13.

Following surgery, the patient’s condition
"stabilized" and she was admitted to the hospital. The
patient remained there until she was transferred to the
University of Virginia Medical Center at Charlottesville on
February 5, 1993, where she died 20 days later. According to a
plaintiff’s medical expert, the cause of death was ARDS and
respiratory failure. He testified that the ARDS was caused by the
perforated pyloric ulcer.

Three medical experts testified for the plaintiff: Dr.
Frederick L. Glauser, who is "Board Certified in internal
medicine, pulmonary and critical care medicine"; Dr. Philip
G. Leavy, an expert in "emergency medicine"; and Dr.
Robert Bowman, a "family practitioner of general
medicine" presently employed in a hospital emergency
department. The plaintiff proffered Glauser as a so-called
"causation witness" and Leavy as a so-called
"standard of care" expert in emergency medicine;
neither purported to express an opinion on the alleged
malpractice of defendant Maybach.

Glauser’s testimony can be summarized as follows. From a
review of the medical records, he said "the medically
initiating cause" of the decedent’s death "was a
perforated pyloric ulcer." Relying, in part, on his study of
the pertinent x-rays, the witness opined that the ARDS began with
the perforation of the ulcer at 6:00 p.m. on the 13th. He said
there was a progression from the perforated ulcer to the ARDS to
the death. Glauser’s opinion was that the decedent had a 90 to 95
percent chance of survival at 6:00 p.m. on the 13th, a 75 to 80
percent survival chance on the 14th, and a 40 to 50 percent
chance of survival on the 15th.

The trial court restricted Glauser’s testimony on the basis
that he was attempting to offer opinions as a "standard of
care" witness and not as a "causation" witness.
That action of the court is the subject of an assignment of
error. We shall not address the substance of the issue because
any error committed by limiting the testimony was harmless; the
expert fully expressed his views and the excluded information was
supplied by the plaintiff’s other experts.

Leavy’s "standard of care" testimony can be
summarized as follows. He opined that Burt "violated the
standard of care in his emergency room examination" of the
decedent "on several occasions in several areas of his
care" for her.

Specifically, the witness said, Burt failed "to
appreciate the significance of the complaint of the abrupt onset
of pain in the abdomen"; he "failed to appreciate the
medication[s] she was taking and failed to get a history of
. . . how often she had been taking them"; he
failed to recognize she was being treated with a combination of
medications that had a propensity to worsen ulcers; and Burt
"turned away from the chief complaint and focused on the
chronic constipation problem that she had."

In addition, the expert opined that Burt should have noticed
"free air," an abnormal condition, in the decedent’s
abdomen that was revealed on the x-rays taken on the 13th. The
witness’ "impression" was that most patients with
"perforated ulcers will, in fact, have free air." Also,
the witness said Burt’s conduct fell below the standard of care
by not monitoring more frequently the patient’s vital signs
during her four-hour emergency room stay on the 13th.

Bowman, proffered as a witness to testify about "the
medical care" provided by both defendants to the decedent,
opined that both "acted below the standard of care."
Bowman’s opinions on Burt’s conduct were essentially the same as
Leavy’s. Focusing on the allegations against Maybach, who had
been the decedent’s family doctor for 18 years, Bowman criticized
Maybach’s prescription of certain medications in the past as
inconsistent with "good care." He also testified:
"In the care of her problem that brought her to the
emergency room, I think there was an opportunity to have made the
care for her in the emergency room to be more directed toward
problems that might have diagnosed her correctly had
communication been given." Continuing, he said: "I
don’t have enough information to be able to know what the
communication was."

Additionally, the expert said that, upon the decedent’s
release from the emergency room following her stay on the 13th,
Maybach’s "office was contacted on two separate occasions
and the information that was given was that she was continuing to
have abdominal pain," and the suggested treatment was to
"relieve what was diagnosed as a constipation problem."
The witness said Maybach acted below the standard of care because
there was no suggestion during the two calls "that she
should be reexamined, either by himself or by going back to the

Also, the witness opined that the standard of care was
violated when, assuming Maybach was not in the office when either
telephone call was received, Maybach’s receptionist or nurse
failed "to obtain medical help" for the decedent when
her daughter called. The witness said a prudent physician should
establish "guidelines" for the office staff to cover
such situations. The expert admitted, however, that if Maybach’s
staff had urged the decedent to return to Fauquier Hospital’s
emergency room on the 14th, the standard of care would have been

As we have said, the main question on appeal is whether the
trial court erred in striking the plaintiff’s evidence. The
issues to be decided under this broad question are whether there
was sufficient evidence of primary negligence, in the case of
defendant Maybach, and of proximate cause, in the case of both
defendants, to have carried those issues to the jury.

The applicable law is settled. A physician is neither an
insurer of diagnosis and treatment nor is the physician held to
the highest degree of care known to the profession. The mere fact
that the physician has failed to effect a cure or that the
diagnosis and treatment have been detrimental to the patient’s
health does not raise a presumption of negligence. Nevertheless,
a physician must demonstrate that degree of skill and diligence
in the diagnosis and treatment of the patient which is employed
by a reasonably prudent practitioner in the physician’s field of
practice or specialty. Brown, 229 Va. at 532, 331 S.E.2d
at 445. See Code ? 8.01-581.20.

In medical malpractice cases, a plaintiff must establish not
only that a defendant violated the applicable standard of care,
and therefore was negligent, the plaintiff must also sustain the
burden of showing that the negligent acts constituted a proximate
cause of the injury or death. Thus, in a death case, if a
defendant physician, by action or inaction, has destroyed any
substantial possibility of the patient’s survival, such conduct
becomes a proximate cause of the patient’s death. Brown,
229 Va. at 532, 331 S.E.2d at 446. Accord Poliquin
v. Daniels, 254 Va. ___, ___, ___ S.E.2d ___, ___ (1997),
decided today.

First, we shall consider the case against Dr. Burt. He does
not dispute that the plaintiff presented expert testimony which
showed he breached the standard of care and which showed the
cause of the decedent’s death. However, he contends the plaintiff
failed to "present any expert testimony linking these two

The plaintiff argues that "proximate cause was shown by
expert testimony of a loss of substantial possibility of Mrs.
Robertson’s survival." We do not agree.

Certainly, the plaintiff presented evidence that Burt’s
failure to diagnose the perforated ulcer on December 13
constituted a violation of the standard of care, and that her
chances of survival diminished from 90 to 95 percent on the 13th
to 40 to 50 percent on the 15th. Nonetheless, the plaintiff
failed to present evidence of any course of treatment which
should have been pursued on the 13th, given a diagnosis of a
perforated ulcer, that would have increased the decedent’s
chances of survival. Affording the plaintiff benefit of all
possible inferences, one could infer from the events of the 14th
that, if the condition had been properly diagnosed on the 13th,
the decedent would have been referred to a surgeon who would have
been responsible for her care. But the record is silent about the
details of that care and its possible effect on the patient’s

This case is unlike Hadeed v. Medic-24, Ltd.,
237 Va. 277, 377 S.E.2d 589 (1989); Brown, supra;
and Whitfield v. Whittaker Mem’l Hosp., 210 Va.
176, 169 S.E.2d 563 (1969), relied on by the plaintiff. In each
of those cases, holding proximate cause to be a jury issue, the
plaintiff presented testimony to establish the nature of the
treatment the decedent could have undergone had the diagnosis
been correct and the probability that such treatment would have
extended the decedent’s life.

For example, in Hadeed, the defendant physicians were
charged with negligently failing to timely diagnose and treat a
decedent’s coronary artery disease. According to the evidence,
treatment in the form of medication or bypass surgery would have
improved the decedent’s chance of survival. There, we said:
"Likewise, proximate cause was a jury question. [The
plaintiff] presented evidence that the doctors’ failure to meet
the applicable standard of care destroyed any substantial
possibility of [the deceased’s] survival. A jury reasonably could
find that with bypass surgery [the deceased] would have had an
85-90 percent chance of living to age 70. With only medical
therapy, he would have had a 50 percent chance of living to age
60." 237 Va. at 286-87, 377 S.E.2d at 594.

Likewise, in Brown we stated: "Prompt diagnosis of
the presence of the clot, which existed at least 48 hours before
the death, would have enabled the orthopedist to administer
treatment in the form of medication which would have
substantially increased the patient’s chances of living,
according to the testimony. This was evidence of proximate
cause." 229 Va. at 533, 331 S.E.2d at 446.

Consequently, we hold that the trial court did not err in
granting Dr. Burt’s motion to strike the plaintiff’s evidence.

Second, we shall address the case against Dr. Maybach. The
essence of the plaintiff’s criticism of Maybach is that he
mismanaged the decedent’s care prior to December 13, that he
should have communicated more of the patient’s history to Burt,
and that the handling of the two telephone calls on the 14th by
Maybach’s office staff was improper.

Even if we assume for purposes of this discussion that one or
more of those charges somehow support a finding of negligence,
nevertheless Maybach’s alleged deviations from the standard of
care were too remote as a matter of law to be causally related to
the decedent’s death. Maybach never was afforded the opportunity
to see, diagnose, or treat the decedent on the 13th. He was never
asked to evaluate her complaints of pain on that day. Actually,
the evidence showed he was working at a Front Royal hospital at
the time. He was never asked to read the x-rays which the
plaintiff now argues showed free air in the abdomen indicating a
perforated ulcer.

The evidence shows that Maybach’s only involvement with the
decedent on the 13th consisted of two telephone calls. In the
first call, he directed the patient to seek treatment at the
Fauquier Hospital because he was on duty in the Front Royal
hospital at the time. In the second call, Burt merely advised
Maybach that the patient had been seen, evaluated, and discharged
with a diagnosis of constipation.

When the telephone calls of the 14th were received, Maybach
was not in his office. The decedent’s daughter was told,
according to the evidence, that if the patient’s pain was severe
she should be brought to Maybach’s office or returned to the
hospital. The daughter responded the family did not want to take
the patient back to the hospital. The daughter was asked if she
wished to leave a message for Maybach, and she declined to do so.
The patient never came to Maybach’s office for treatment on the

In sum, as Maybach argues, his involvement with the decedent
at the pertinent times "was simply too limited, too remote
and too indirect" to be causally connected to her death.
Thus, we hold the trial court did not err in granting Dr.
Maybach’s motion to strike.

Finally, we reject the plaintiff’s other assignments of error.
The trial court did not abuse its discretion in refusing to allow
the deposition testimony of a radiologist as part of the
plaintiff’s case-in-chief. The focus of that area of inquiry was
upon what an emergency room physician should have seen and
evaluated on x-rays, not what an expert radiologist should have
seen and evaluated. And, the trial court properly excluded proof
of medical expenses that had not been linked causally to any
alleged malpractice of the defendants.

For these reasons, the judgment below in favor of the
defendants will be