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Sawyer v. Comerci6/7/2002
Present: All the Justices
In this appeal of a judgment entered in favor of a physician in a medical negligence action, we consider whether the circuit court erred in granting a contributory negligence instruction, whether the evidence was sufficient to support the granting of a jury instruction on mitigation of damages, and whether the circuit court erred in limiting the scope of the plaintiff's cross-examination of the defendant's expert witness.
I.
Plaintiff, Norma J. Sawyer, administrator of the estate of Norman Lee Plogger, filed a motion for judgment against Cathy Comerci, D.O., and Stonewall Jackson Hospital. She alleged that the defendants breached certain duties owed to the decedent, Norman Plogger, and that their acts and omissions were a proximate cause of his death. The defendants filed grounds of defense and denied any breach of duties owed to Mr. Plogger.
At the beginning of a jury trial, the plaintiff took a voluntary non-suit of her action against the hospital, and the case proceeded against Dr. Comerci. At the conclusion of the litigants' presentation of evidence, the jury was instructed, among other things, that it could consider whether Mr. Plogger was contributorially negligent. The jury returned a verdict in favor of Dr. Comerci, and the plaintiff appeals.
II.
On the night of April 2, 1997, Norman Plogger, accompanied by his wife, Mary Plogger, went to the Stonewall Jackson Hospital emergency room. Mr. Plogger sought help because he experienced continuous pain on the right side of his abdomen.
Dr. Comerci, the emergency room physician "on call" that night, evaluated Mr. Plogger, ordered certain laboratory tests, and performed an examination upon him. Mr. Plogger informed Dr. Comerci that he "just didn't feel well; that he hadn't felt well for a while." Mr. Plogger had seen his family physician a few days earlier, and his physician informed Mr. Plogger that he had a viral illness. Mr. Plogger also informed an emergency room nurse that he "had right abdominal soreness." Even though Mr. Plogger had experienced abdominal pains for several months before he went to Stonewall Jackson Hospital on April 2, 1997, he had not mentioned this pain to his physician, Dr. Thomas Hamilton.
Dr. Comerci concluded that Mr. Plogger should be admitted to the hospital as a patient because he had blood in his stool and his white blood count was elevated. The elevation in Mr. Plogger's white blood count led Dr. Comerci to believe that either "an inflammatory process or infection" was occurring in his body.
Dr. Comerci felt that a surgeon should evaluate Mr. Plogger, and she made a telephone call to Dr. Robert Irons, the hospital's "on call" surgeon, seeking such evaluation. Summarizing her conversation with Dr. Irons, Dr. Comerci stated: "By my calling Dr. Irons, I would be calling him for an admission. . . . I . . . call him because I needed him to see a patient for admission. . . . But my calling him, it is because I need [Mr. Plogger] admitted, and I need the surgeon to come in and evaluate the patient."
Dr. Comerci informed Dr. Irons that Mr. Plogger "had blood in his stool" and that he "had a [gastrointestinal] bleed with an intermittent bowel obstruction probably being caused by a mass in his colon." Dr. Comerci believed that Mr. Plogger needed surgical intervention to resolve the bleeding. Dr. Irons told Dr. Comerci that he did not believe that Mr. Plogger had "an acute surgical abdomen" and recommended that Dr. Comerci refer Mr. Plogger to Dr. Hamilton. Dr. Comerci placed a telephone call to Dr. Hamilton.
When Dr. Comerci was discussing Mr. Plogger's condition
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