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Bryan v. Burt6/6/1997
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
James H. Chamblin, Judge
The main appellate issue in this wrongful death action, alleging medical malpractice against both an emergency room physician and a family practitioner, is whether the trial court erred in striking the plaintiff's evidence at the close of the plaintiff's case-in-chief.
Appellant Cindy L. Bryan, who sues as "Personal Representative and Administratrix of the Estate of Shirley A. Robertson, deceased," filed a motion for judgment against appellees Steven M. Burt, D.O., and Eric J. Maybach, M.D., seeking damages for the alleged wrongful death of the decedent. The plaintiff alleged that the decedent came to a hospital emergency department complaining of severe abdominal pain. She alleged that Burt, the emergency room physician, diagnosed constipation as the cause of the pain when it actually was due to a perforated ulcer. The plaintiff alleged Burt discharged the decedent from the hospital after several hours of examination and treatment.
Subsequently, the plaintiff alleged, when the pain did not subside, the decedent's family contacted the office of Maybach, the decedent's family physician. The plaintiff further alleged that as the result of Burt's misdiagnosis, which Maybach "knew or should have known of," the decedent's condition worsened and she died several months later while a patient in another hospital.
In a grounds of defense, Burt denied the plaintiff's allegations of negligence. Maybach filed a grounds of defense also denying he was negligent because "he was not involved in the care and treatment of" the decedent on the day of the alleged misdiagnosis.
Following presentation of the plaintiff's case-in-chief during a four-day jury trial in March 1996, the trial court sustained the defendants' respective motions to strike the evidence. We awarded the plaintiff an appeal from the trial court's April 1996 order entering summary judgment in favor of the defendants.
According to settled principles of appellate review governing a case in which the plaintiff's evidence has been struck at the close of the plaintiff's case-in-chief, we will recite the essential facts in the light most favorable to the plaintiff. Brown v. Koulizakis, 229 Va. 524, 526, 331 S.E.2d 440, 442 (1985).
The focus of this lawsuit is upon the events of December 13, 1992. Near 9:00 p.m. of that day, a Sunday, the plaintiff's decedent, age 53, went to the emergency department of the Fauquier Hospital in Warrenton, where she was examined and treated by Burt. She complained of pain "covering the entire abdomen." The patient stated she had experienced "the acute onset of the abdominal pain" about three hours earlier.
Upon examination, the patient's "vital signs" were normal. She gave a history of peptic ulcer disease, hypertension, headaches, "a cholesterol problem," and "problems with constipation." She reported that she recently had been taking a number of different medications.
Burt ordered "lab work" and x-rays that were "of a standard nature" and "normal in this sort of situation." Upon making a diagnosis of constipation, the physician ordered injection of a pain relieving drug, Toradol, and giving of "a high soapsuds enema" about 10:00 p.m. Near 11:30 p.m., the patient began receiving "IV fluids, to run at approximately 500 cc's an hour." About 35 minutes later, she was given "an oil retention enema." The patient was discharged near 1:00 a.m. on December 14. Upon discharge, Burt instructed the patient to drink "lots of water," to pursue a "high fiber diet," to take specified doses of mineral oil, and "if no bowel movement" resulted, to take "8 o
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