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Chandler v. Graffeo11/5/2004
In this appeal from a judgment in a medical-malpractice action, we determine whether the trial court erred in: (1) admitting into evidence the opinion of a Medical Malpractice Review Panel (the Panel) and the testimony of two Panel members thereon when the Panel's decision was rendered beyond the timeframe set forth in Code § 8.01-581.7:1; (2) permitting testimony from two Panel members as the defendants' retained experts after they had rendered a Panel opinion in the defendants' favor; (3) granting jury instructions on the issue of contributory negligence; (4) refusing to grant a jury instruction regarding concurring negligence; and (5) allowing the defendant-physician to recite the opinion of a non testifying physician.
I.
This action was brought by Ruth E. Chandler and Toinette M. Hurt (collectively, Chandler), as co-administrators of the Estate of Robert H. Fields, against Charles S. Graffeo, M.D., and his employer, Emergency Physicians of Tidewater, Inc. (Emergency Physicians) (collectively, the Defendants). Chandler alleged that the Defendants' medical negligence led to Fields' death. Fields had died from a ruptured thoracoabdominal aortic aneurysm.
On February 27, 2001, this Court designated the members of the Panel, and the Panel rendered its decision on September 4, 2001, more than six months after its designation. The Panel opined that the evidence did not support a conclusion that Dr. Graffeo and Emergency Physicians had failed to comply with the appropriate standard of care. Chandler did not participate in the Panel proceeding.
The case was tried before a jury, which returned a verdict in favor of the Defendants. The trial court entered judgment on the verdict, and this appeal ensued.
II.
A brief summary of the underlying facts will suffice. Additional facts will be recited as they relate to the several issues under consideration.
On September 4, 1997, Fields was admitted to Maryview Medical Center (Maryview) in Portsmouth, complaining of sharp, mid-sternal chest pain, abdominal pain, and numbness in both legs. During his five-day hospital stay, Fields underwent numerous tests, none of which provided a definitive diagnosis. On September 9, 1997, Fields was discharged from Maryview with instructions to follow up with a nephrologist to evaluate renal insufficiency of an unknown origin.
Fields' pains persisted, and, on September 11, 1997, he presented to Portsmouth General Hospital's emergency room. There, Fields stated that his back and stomach area "hurts." He also complained of chest pain and "bilateral flank pain, right greater than left, that extend down towards his lower abdomen." Dr. Thomas W. Wagner saw Fields in the emergency room. Dr. Wagner ordered radiological tests to rule out abdominal aortic aneurysm and placed Fields under the care of Dr. Graffeo.
Dr. Graffeo diagnosed Fields as suffering from a non dissecting lower thoracoabdominal aortic aneurysm. Fields' pains subsided, and Dr. Graffeo discharged Fields from the hospital with instructions to see Dr. Keith H. Zaitoun, a nephrologist, the following day, September 12th.
Fields endeavored to schedule the appointment with Dr. Zaitoun as directed, but he was informed that September 17th was the earliest available appointment. On September 15, 1997, Fields collapsed at his home and was pronounced dead after emergency resuscitation efforts were unsuccessful.
III.
We first consider whether the trial court erred in admitting into evidence the Panel's opinion and its members' testimony thereon. Code § 8.01-581.7(A) provides that a panel shall, after receiving all the evidenc
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