In its opinion filed on February 22, 2018, the Supreme Court of Virginia (“Virginia Supreme Court”) overturned the $652,000 jury award in favor of the plaintiff in a Virginia medical malpractice case, holding that the circuit court erred in denying the defendant surgeon’s motion to strike the plaintiff’s evidence on the ground that the plaintiff failed to prove causation during the Virginia medical malpractice trial.
The plaintiff alleged in her Virginia medical malpractice lawsuit that on June 4, 2012, the defendant surgeon performed a laparoscopic total hysterectomy on her. The defendant surgeon stated in her operative report that her partner placed the initial trocar though the belly button at which point the trocar appeared to be very close to the omentum. The trocar had to be pulled back but no apparent injury was noted to the omentum or the bowel.
The defendant surgeon testified during trial as to how she performed the surgery: once she removed the uterus and cervix, she looked for any injury while the abdomen was deflated and then went back and put the gas back inside the abdomen and looked around to make sure there was no bleeding or anything abnormal that should not be there. The defendant surgeon testified that she was comfortable that there was no injury to the bowel.
On June 5, 2012, the defendant surgeon saw the plaintiff six times because the plaintiff was experiencing pain, shortness of breath, and difficulty passing urine. The defendant surgeon testified that pain was expected after such a surgery, but that she called for consultations with a pulmonologist, urologist, nephrologist, and a hospitalist.
On the morning of June 6, 2012, the plaintiff’s symptoms had not resolved and the defendant ordered a CT scan of the plaintiff’s pelvis and abdomen. The defendant went off duty but transferred the care of the plaintiff to her partner. Later that day, a general surgeon performed an open surgery on the plaintiff and identified and repaired a bowel injury.
The plaintiff’s Virginia medical malpractice lawsuit claimed that the defendant surgeon negligently perforated her small bowel during the laparoscopic total hysterectomy, failed to detect the perforation, and failed to obtain a general surgery consultation to repair the injury, which proximately caused her great pain and suffering and medical expenses in the past and into the future.
The plaintiff’s sole medical expert at trial, an OB/GYN, testified that the standard of care required the defendant surgeon to recognize the bowel injury before concluding the surgery and to consult a general surgeon so that the injury could be immediately repaired. The two defense medical experts testified that the defendant’s inspection for a bowel injury met the standard of care because a bowel injury may be too small to immediately see because the bowel is relatively empty in preparation for surgery. As a result, any injury or leakage may not manifest until 24 hours after surgery.
The defense moved to strike the evidence at the end of the plaintiff’s case-in-chief and renewed the defense motion to strike at the close of all evidence, arguing that the plaintiff failed to present any evidence of causation: specifically, that the plaintiff failed to prove that anything different would have happened even if the defendant had discovered the bowel injury during surgery on June 4 and had immediately consulted a general surgeon, or that the plaintiff would not have needed the exact same treatment that she actually received. The trial court denied the defense motions and the Virginia medical malpractice jury subsequently returned its verdict in the amount of $652,000 in favor of the plaintiff. The defendant appealed.
The Virginia Supreme Court Opinion
The Virginia Supreme Court stated that the record before it is silent about the details of the care a general surgeon would have provided had the perforated bowel been diagnosed on June 4 instead of June 6. There is no evidence that the repair would have been performed immediately on June 4 as opposed to June 6. Further, there is no evidence that the repair could have been performed laparoscopically as opposed to an open surgery had a general surgeon been consulted earlier. The record is also silent as to the possible effects on the plaintiff’s health. There is no testimony that the plaintiff would not have experienced any leaking of the bowel fluids into her abdomen or that she would not have suffered from any infection.
The Virginia Supreme Court held that the plaintiff did not prove causation and was unable to do so from the evidence presented to the circuit court. Therefore, the circuit court should have granted the defense motion to strike the evidence on the basis of lack of causation.
Source Dixon v. Sublett, Record No. 170350.
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