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Auer v. Miller6/9/2005
Auer's condition.
IV.
Finally, we determine whether the trial court erred in vacating the verdict against Cardiovascular Associates. The trial court concluded that the Plaintiff presented sufficient evidence from which the jury could reasonably find that Cardiovascular Associates breached the applicable standard of care by not providing the proper response to the Plaintiff's telephone calls on May 30, 2002. However, the court further concluded, as a matter of law, that this breach of the standard of care was not a proximate cause of Auer's death.
Ordinarily, negligence and proximate cause are issues to be resolved by a jury. When reasonable minds could not differ about these issues, a court may properly decide them. Hadeed v. Medic-24, Ltd., 237 Va. 277, 285, 377 S.E.2d 589, 593 (1989).
In a case involving the death of a patient, a physician's negligence is a proximate cause of the patient's death if it "destroyed any substantial possibility of the patient's survival." Brown v. Koulizakis, 229 Va. 524, 532, 331 S.E.2d 440, 446 (1985). In the present case, the trial court meticulously reviewed the testimony of the Plaintiff's expert witnesses before concluding that no evidence was presented from which the jury could find that Cardiovascular Associates' negligence was a proximate cause of Auer's death.
One of the Plaintiff's experts, Dr. Donald E. Craven, testified that by June 3, 2002, the date that Auer was readmitted to the Hospital, any plan of treatment would have been too late to save Auer. Dr. Craven was unable to say to a reasonable degree of medical certainty that the outcome would have been different had Auer been treated for endocarditis on May 30.
Dr. Richard P. Friedlander, another of the Plaintiff's experts, testified that he could not "say with certainty that identification and treatment on the 30th [of May] would have prevented [Auer's] death." Dr. Friedlander could only say that earlier intervention "certainly would have improved his chances of surviving as compared to making the diagnosis on the 3rd [of June]." Dr. Friedlander also testified that had the diagnosis and treatment been offered before discharge on the 23rd, it is much more likely than not that the patient would have survived. I can also say that by the time the patient was readmitted to the hospital on the 3rd, his fate was essentially sealed as of that time.
Between the discharge on the 23rd and the readmission on the 3rd, with each successive day the likelihood of his survival diminished, but I cannot tell you at what point he tripped over that magic 51 percent line when it is more likely than not that he would have survived or would not have survived.
Finally, Dr. Robert Bojar, also an expert for the Plaintiff, testified that Auer would have survived had he received treatment "earlier rather than later," but that by June 3, "it was too late." Dr. Bojar did not say, however, that had Auer been seen and treated on May 30th, he would more likely than not have survived.
After reviewing the testimony of the Plaintiff's expert witnesses, the trial court concluded that "the combined testimony of these witnesses does not establish that, had [Cardiovascular Associates] responded appropriately according to the standard of care, . . . [Auer] would have had a substantially better possibility of survival." The trial court further stated that the Plaintiff "must be able to present expert testimony to support the proposition that [Auer] had at least a substantial possibility of survival on May 30 . . . , and was deprived of same by the negligence of Cardiovascular Associates. There was no adequate testimony to meet this burden." W
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