NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Supreme Court of Virginia.




January 14, 2000

Record No. 990319






Present: Carrico, C.J., Compton, Lacy, Hassell,
Keenan, Koontz, JJ., and Poff, Senior Justice

John W. Scott, Jr., Judge

This litigation commenced in January 1994 when
William G. Powell, Jr., (Powell) filed a motion for judgment
against Dr. C. R. Massey, III, and Dr. Andrew Margileth alleging
medical malpractice. Following Powell’s death in 1995, his widow,
Mary Estella Powell, qualified as executrix of his estate, and
the trial court converted the case into a wrongful death action.

At the first trial of the case, the executrix
non-suited Dr. Margileth, and the jury returned its verdict in
favor of Dr. Massey. In April 1996, the executrix filed a motion
for judgment against Dr. Margileth alleging that his misdiagnosis
and treatment of his patient caused Powell’s death from
cancer-related pneumonia. At the second trial conducted in June
1998, the trial court granted the defendant’s motion to strike
the plaintiff’s evidence, and we awarded the plaintiff an appeal
from the judgment entered on that ruling.

We will review the chronology of the facts in
evidence related to questions presented by the plaintiff’s
assignment of error.

On January 9, 1992, Dr. Massey, a specialist in
otolaryngology, measured a node in Powell’s neck as 4 cm x 3 cm
and ordered a CT scan. As interpreted by a radiologist, the scan
conducted January 11, 1992 indicated that the size of the
"left cervical mass . . . is due to an
enlarged internal jugular node which most likely is an abscess
. . . ."

On January 14, 1992, Dr. Massey aspirated fluid
from the enlarged node. Although he discussed the CT scan with
Powell and ordered cultures, he did not suggest a need for an
examination to rule out cancer.

Because Powell had told him that he had
experienced some exposure to cats, Dr. Massey referred Powell on
January 21, 1992 to Dr. Margileth, an infectious disease
specialist experienced in the diagnosis and treatment of cat
scratch disease. On January 27, 1992, Dr. Margileth performed
tests for tuberculosis and cat scratch disease and measured the
"swelling . . . in the left anterior superior
neck" as 4.4 x 6 x 2.6 cm. He advised his patient that he
had cat scratch disease and prescribed antibiotics. The results
of the CT scan had been furnished to Dr. Margileth.

On February 18, 1992, Dr. Massey palpated a
nodule in Powell’s neck which measured 4 x 2.8 cm. Dr. Massey
performed another examination on April 7, 1992 in the course of
which he suggested the possibility of cancer.

In June 1992, Powell discovered a second lump
in his neck and in July went for help to the Veterans
Administration Medical Center Hospital. A needle aspiration of
the two lumps diagnosed cancer representing a progression from
stage III in January 1992 when the CT scan was conducted to stage
IV in July 1992. Powell underwent radiation therapy, surgery, and
other treatment but died of cancer three years later at the age
of 40.

In the case of a wrongful death resulting from
medical malpractice, the plaintiff must prove a breach of the
standard of care and a proximate causal relationship between that
breach and the injury alleged. Griffett v. Ryan, 247 Va.
465, 470, 443 S.E.2d 149, 151 (1994); see also St.
George v. Pariser
, 253 Va. 329, 484 S.E.2d 888 (1997); Blondel
v. Hays
, 241 Va. 467, 403 S.E.2d 340 (1991).

When ruling on a defendant’s motion to strike
the plaintiff’s evidence, the trial court must draw all
reasonable inferences the evidence may raise in favor of the
plaintiff. Hadeed v. Medic–24 Ltd., 237 Va. 277,
285-86, 377 S.E.2d 589, 593 (1989). If it appears from the record
that such inferences are reasonable, then the issues concerning
standards of care and proximate cause are questions of fact to be
determined by a jury.

In a memorandum opinion dated October 6, 1998
explaining its decision to grant the defendant’s motion to strike
the plaintiff’s evidence, the trial court held that "there
is no evidence or reasonable inference that would allow a jury of
reasonable persons to conclude that the Defendant’s breaches of
the standards of care proximately caused the decedent’s injuries;
adversely altered the required method of treatment; or adversely
affected his rate of survival."

Dr. Francois E. Holder, one of the plaintiff’s
expert witnesses, testified that the defendant’s misdiagnosis of
cat scratch disease caused his patient delay in diagnosis and
treatment of his cancer from January until July, and that if he
had been "informed of the possibility of cancer in January,
and options were offered in terms of biopsy for fine needle
aspirations, Mr. Powell would have had a diagnosis of cancer
probably the first week of February." Asked whether the
delay was "a direct and proximate cause of the failure of
Dr. Margileth to comply with the required standard of care,"
Dr. Holder answered, "Yes, it was."

Dr. M. Karim Ali, who had treated Powell at the
VA Hospital, testified as an expert in the staging, treatment,
and surgery of cancer. Asked what would have been Powell’s
"percentage chance of survival for 5 years" if he had
"received him as a patient based on the January 11, 1992 CAT
scan report," which identifies the cancer as stage III, Dr.
Ali said that Powell would have had "[a]round 75
percent" chance of surviving 5 years compared to the
"15 to 20 percent" chance he had in July 1992.

Dr. Oscar Tercilla, a professor at Medical
College of Virginia, was qualified as an expert in the staging
and treatment of cancer, estimating prognosis at the cancer
stage, and medical treatment caused by failure to make a timely
diagnosis. Dr. Tercilla testified as follows:

If Mr. Powell had been treated in January as
opposed to July it is my opinion that he had a higher likelihood
of being controlled of this disease than he had when he presented
at the VA in July. Because of that, you would have avoided his
recurrence which occurred in July of 1993 with the tumor
reappearing in his tonsil and subsequent treatment that came from

Absent a recurrence, the witness agreed
"[i]n all likelihood" that Dr. Margileth’s patient
"would still be alive."

Dr. Barbara Kipreos, a pathologist at the VA
center, was asked her opinion whether, "if Dr. Margileth
would have requested a fine needle aspirate at the Mary
Washington Hospital pathology laboratory" in January 1992,
"Mr. Powell’s cancer would have been diagnosed at that
time." In reply, the witness said, "Yes, it is my
opinion that it would have been diagnosed at that time."

We disagree with the trial court’s ruling that
"there is no evidence or reasonable inference that would
allow a jury of reasonable persons to conclude that the
Defendant’s breaches of the standards of care proximately caused
the decedent’s injuries . . . or adversely affected his
rate of survival." Qualified experts in the field testified

We hold, therefore, that the trial court erred
in granting the defendant’s motion to strike the plaintiff’s
evidence, and we will reverse the judgment entered below and
remand the case for a new trial in accordance with this opinion.

Reversed and remanded.



[1] The trial court found "no
evidence before this court" that Powell would have consented
to a fine needle aspiration if Dr. Margileth had recommended one
during his examinations on January 27 and January 30.
Irrespective of the issue whether such proof was required, we
note that the record shows that Powell consented to such
procedure on January 14 when his primary care physician, Dr.
Massey, aspirated the large node in his neck.