In its opinion filed on April 13, 2017, the Supreme Court of Virginia (“Virginia Supreme Court”) reversed a Virginia medical malpractice jury’s verdict in favor of the defendant otolaryngologist involving the unexpected death of a child during the afternoon following outpatient surgery, holding that the expert opinion of the defendant’s geneticist during trial as to cause of death was not supported by an adequate foundation.
The Underlying Facts
In May 2012, the defendant otolaryngologist began treating a five-year-child for severe obstructive sleep apnea. Following a sleep study, the defendant recommended that the child undergo tonsillectomy and adenoidectomy surgery that he scheduled on an outpatient basis so that the child could go home following surgery. The surgery was performed without complications.
After awakening in the post-anesthesia care unit where he was monitored by nurses and anesthesiologists, the child was discharged from the hospital with instructions to take prescribed pain medication every four hours. That afternoon, the child’s mother administered his medication and laid him down for a nap. Thirty minutes later, she found him unresponsive. He was rushed to the hospital where he was pronounced dead.
An autopsy determined the cause of death to be cardiac arrhythmia of unknown etiology. The autopsy report stated that an underlying cardiac channelopathy or cardiac conduction system disorder cannot be ruled out especially given that the child was the product of a consanguineous marriage (the child’s parents are cousins).
The child’s mother filed her Virginia medical malpractice lawsuit against the defendant otolaryngologist and his medical practice, alleging that her child was at a high risk for postoperative respiratory compromise due to his severe obstructive sleep apnea, and that the defendant violated the applicable standard of care by failing to order that he be monitored overnight following surgery.
During the Virginia medical malpractice jury trial, the defendant provided the testimony of his expert witness, a board certified pediatric geneticist, as an expert on genetics and on the cause of the child’s death. Over the objection of the plaintiff, the expert testified that it was his opinion that the child died of cardiac arrest due to Brugada syndrome, a rare hereditary syndrome with a high risk of sudden death from ventricular arrhythmias. The jury returned its verdict in favor of the defendants. The plaintiff appealed.
The Virginia Supreme Court Decision
The Virginia Supreme Court stated that the defendants’ expert purported to give a differential diagnosis, whereby he eliminated all possible causes of death until only one remained. Accordingly, to opine that the child died from Brugada syndrome, he needed to exclude postoperative respiratory compromise as a cause of death. The defendant consistently maintained during trial and throughout the appeal that his geneticist expert relied on the autopsy report to exclude respiratory compromise as a cause of death.
The Virginia Supreme Court stated that the autopsy report did not actually exclude respiratory compromise as a cause of death – the autopsy report stated only that the child died of “cardiac arrhythmia of unknown etiology” and speculated about the possibility of a genetic cause (the parties’ respective experts acknowledged that respiratory compromise would have led to cardiac arrhythmia). Thus, instead of excluding respiratory compromise as a cause of death, the autopsy report leaves it open as a possibility.
The Virginia Supreme Court held, “Accordingly, respiratory compromise was not excluded by [the defendant’s geneticist expert] nor any source upon which he relied. His differential diagnosis was therefore founded upon an assumption that was not established during the trial. The circuit court abused its discretion by admitting it into evidence.”
Source Toraish v. Lee, Record No. 160495
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