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Chandler v. Graffeo11/5/2004
d regarding the claimant or his family; (ii) does not anticipate examining, treating, or being consulted regarding the claimant or his family; or (iii) has not been an employee, partner or co-proprietor of the health care provider against whom the claim is asserted.
In the present case, after the Panel proceeding, the Defendants retained as experts former Panel members Karsten F. Konerding, M.D., a radiologist, and Francis E. Watson, M.D., an emergency room physician, to examine "additional materials" and to testify on behalf of the Defendants at trial. When these former Panel members testified at trial, the Defendants' counsel presented them as having been appointed by the Chief Justice of this Court to serve on the Panel and as having taken an oath to examine the claims impartially.
The Defendants assert that the Panel members "were appointed by this Court, took the Oath and rendered a fair and impartial opinion and came to trial to testify regarding that process and their opinions. They were paid for their additional services, as allowed by statute, and testified that their individual opinions had not changed by review of additional material." Chandler counters that " t cannot reasonably be asserted that a party calling the Panel member 'at his cost' grants any party the right to convert the impartial Panel member into a retained expert with additional duties and work beyond and outside the scope of the Panel proceeding."
We agree with Chandler. We find nothing in the statutory scheme respecting a panel's procedures that gives either party the right to retain an impartial panel member as an expert. In addition, we think that the impartiality required by Code ยง 8.01-581.3 must remain through the conclusion of the trial. Indeed, impartiality would become an impossibility if either party were permitted to retain panel members as experts because no potential panel member would be without any anticipation concerning future consultation regarding the claimant or his family. Moreover, the panel members' appointment to and service on the panel would tend to clothe the expert, in the jury's view, with superior qualifications and greater credibility.
We hold, therefore, that the trial court erred in permitting the Panel members to testify as the Defendants' retained experts. Their testimony violated the intent and spirit of the statutory scheme; i.e., the impartiality of the Panel proceeding.
V.
We now consider whether the trial court erred in instructing the jury on contributory negligence and in refusing to instruct the jury on concurring negligence. As previously noted, Fields presented to the emergency room of Portsmouth General Hospital on September 11, 1997. While there, Fields came under the care of Dr. Graffeo, who diagnosed a "non dissecting 4 cm lower thoracoabdominal aneurysm" and "a small amount of left pleural fluid." According to Dr. Graffeo, there was nothing emergent about Fields' condition. Accordingly, Dr. Graffeo discharged Fields from the hospital with instructions to follow up the next morning with Dr. Zaitoun. Fields endeavored to secure an appointment with Dr. Zaitoun the following morning, but Dr. Zaitoun could not see Fields until September 17. Fields died of a ruptured abdominal aortic aneurysm on September 15, 1997.
The Defendants contend that Fields was contributorially negligent for not seeing Dr. Zaitoun the following morning. Chandler asserts, to the contrary, that Fields' conduct was not negligent, and that, even if it were, it was not contemporaneous with Dr. Graffeo's negligence. We agree with Chandler.
To constitute contributory negligence in a medical malpractice case, a plaintiff's n
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