Atkinson v. Scheer

508 S.E.2d 68, 256 Va. 448, 1998 Va. LEXIS 138
CourtSupreme Court of Virginia
DecidedNovember 6, 1998
DocketRecord 972694
StatusPublished
Cited by33 cases

This text of 508 S.E.2d 68 (Atkinson v. Scheer) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atkinson v. Scheer, 508 S.E.2d 68, 256 Va. 448, 1998 Va. LEXIS 138 (Va. 1998).

Opinions

JUSTICE HASSELL

delivered the opinion of the Court.

In this appeal of a judgment in a medical negligence action, we consider whether the defendant was entitled to present evidence that [450]*450another doctor, who is not a party to this litigation, breached the standard of care owed to a patient.

Walter Atkinson, administrator of the estate of Ruby E. Atkinson (Atkinson), filed a motion for judgment against Daniel W. Scheer, a doctor of osteopathic medicine. The estate alleged that Dr. Scheer breached the standard of care owed to Atkinson and that her death was caused by Dr. Scheer’s negligence. Dr. Scheer filed a grounds of defense and denied any acts of negligence.

During a jury trial, Dr. Scheer was permitted to ask the plaintiff’s expert witness, over the plaintiff’s objection, whether another physician who had also treated Atkinson had committed acts of negligence. The trial court permitted Dr. Scheer to elicit such testimony, and at the conclusion of the trial, the jury returned a verdict in favor of Dr. Scheer. The plaintiff appeals.

We will state the facts and all reasonable inferences therefrom in favor of Dr. Scheer, the recipient of a jury verdict confirmed by the trial court. Atkinson began to experience symptoms of a heart attack around 5:00 p.m. on September 12, 1994. She had pain and nausea, and she vomited. She arrived at Richmond Memorial Hospital’s emergency room at 6:50 p.m., and she complained of pain in her chest, neck, and left shoulder.

An emergency room nurse placed Atkinson on oxygen, extracted a blood sample from her, and connected her to a continuous heart monitor. The nurse gave Atkinson certain fluids intravenously and attached her to an electrocardiograph. Dr. Scheer examined Atkinson around 7:15 p.m., performed a physical evaluation, and ordered certain diagnostic tests.

Dr. Scheer testified that even though he did not make a final diagnosis of Atkinson on September 12, he made a working diagnosis that “her etiology was probably cardiac in origin, probably cardiac ischemia.” Dr. Scheer stated that a working diagnosis is “the one most likely to be what was going on with the person.” Dr. Scheer described an ischemia as “a lack of oxygen going to the heart.”

Subsequently, Dr. Scheer ordered that a patch of nitroglycerin paste be placed on Atkinson’s chest to be absorbed through her skin into her body. The nitroglycerin paste dilated her blood vessels, thereby reducing the strain on her heart which, in turn, decreased her heart’s need for oxygen. According to Dr. Scheer, after the nitroglycerin paste was administered, Atkinson’s pain abated. Atkinson’s [451]*451daughter, however, testified that her mother continued to experience pain.

Dr. Scheer ordered a blood test to ascertain the presence of enzymes in Atkinson’s body which would have been indicative of heart damage. Dr. Scheer had not received the results of the blood test when his emergency room shift ended at 10:00 p.m.

Dr. Scheer also contacted Dr. Selwyn Goodwin by telephone. Dr. Goodwin was a physician who was “on call” for Atkinson’s regular treating physician. Dr. Goodwin was aware of Atkinson’s past history of pulmonary embolism, a condition which could also cause chest pain. Dr. Goodwin suggested to Dr. Scheer that he order a ventilation protrusion scan which would detect the presence of this condition. This scan is commonly referred to as a VQ scan. The scan was performed, but the results were not available when Dr. Scheer’s shift ended.

When Dr. Scheer left the emergency room at about 10:00 p.m., Dr. Gayle Wampler-Adams, another emergency room physician, began treatment of Atkinson. Dr. Wampler-Adams testified that it was her “recollection . . . that [Atkinson] had been cleared for discharge, that we were awaiting VQ scan results as a final diagnostic test.”

Dr. Wampler-Adams received the results of the VQ scan, which were negative. Dr. Wampler-Adams spoke with Atkinson, performed a physical examination, and reviewed the EKG and laboratory results available to her. Dr. Wampler-Adams noted in the emergency room record that her diagnosis of Atkinson’s condition was “[ajtypical chest pain, probable GE Reflux.” Dr. Wampler-Adams also spoke by telephone with Dr. Goodwin. Dr. Wampler-Adams discharged Atkinson at 11:40 p.m. that night.

Dr. Wampler-Adams testified, without contradiction, that she relied upon Dr. Scheer’s “workup” of Atkinson when making the decision to discharge Atkinson. Shortly after her discharge, Atkinson began to experience symptoms associated with a heart attack. She began to vomit, and she complained of pain in her shoulder “down through her arm.” Her regular physician diagnosed her condition the next day as “a heart attack in progress,” and she was admitted to Richmond Memorial Hospital. She died on October 4, 1994, as a result of her heart attack.

Dr. Scheer did not present any expert witnesses at trial. His expert witnesses were disqualified from testifying in a pretrial order.

[452]*452Dr. David Munter, who qualified as an expert witness on behalf of the plaintiff on the subject of “emergency room care medicine,” testified within a reasonable degree of medical certainty that Dr. Scheer breached the standard of care owed to Atkinson. Specifically, Dr. Munter testified that Dr. Scheer had enough information to admit Atkinson as a patient to the hospital and that he breached the standard of care in failing to do so. Dr. Munter also opined that Dr. Scheer should have been more aggressive in his treatment of Atkinson and that Atkinson would have “had a very high probability of surviving had she been admitted” to the hospital on the evening she was treated in the emergency room and that her “high likelihood of survivability was lost.”

During Dr. Scheer’s cross-examination of Dr. Munter, the trial court permitted him to ask, over the plaintiff’s objection, whether Dr. Wampler-Adams, who had settled the estate’s claims against her, breached the standard of care owed to Atkinson. Dr. Munter testified that Dr. Wampler-Adams had breached the standard of care by discharging Atkinson.

Atkinson, relying upon Jenkins v. Payne, 251 Va. 122, 465 S.E.2d 795 (1996), argues that the trial court erred by permitting Dr. Scheer to introduce evidence at trial that Dr. Wampler-Adams was negligent in her care and treatment of Atkinson. Dr. Scheer responds that the trial court properly admitted this testimony in evidence because Dr. Wampler-Adams’ conduct was negligent and such conduct was a superseding intervening cause of Atkinson’s injury. We disagree with Dr. Scheer.

In Jenkins, we considered “whether the trial court erred in excluding from the jury’s consideration (1) opinion evidence that another physician, who had settled the plaintiff’s claim against him, was negligent in his treatment of the decedent, and (2) the defendants’ argument that the settling physician was the sole proximate cause of the decedent’s death.” Jenkins, 251 Va. at 124, 465 S.E.2d at 796.

Veronica L. Payne filed a motion for judgment against Harold S. Jenkins, M.D., Jill W. York, R.N., P.N.P., Barry S. Rothman, M.D., and Doctors Rothman, Grapin, and McKnight, PC. Payne alleged that these health care providers breached the applicable standards of care owed to her. Payne died before trial, and her husband, Troy R.

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Cite This Page — Counsel Stack

Bluebook (online)
508 S.E.2d 68, 256 Va. 448, 1998 Va. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atkinson-v-scheer-va-1998.