KAYLA HOLT, AN INFANT, BY AND THROUGH HER PARENTAND NEXT FRIEND, MICHELE HOLT
DIANA CHALMETA, M.D., ET AL.
THE CIRCUIT COURT OF FAUQUIER COUNTY Herman A. Whisenant,
Jr., Judge Designate
BERNARD GOODWYN, JUSTICE
medical malpractice appeal, we consider whether the circuit
court erred when it refused to qualify plaintiff's only
proposed expert witness, citing Code § 8.01-581.20, and
granted summary judgment for the defendants.
Holt (Kayla) was born on May 6, 2006 at 1:02 a.m. in Fauquier
Hospital. Although she initially breathed normally, Kayla
stopped breathing on her own at 1:12 a.m. The nurses present
noted her respiratory distress and began assisted breathing
such that Kayla began breathing with supplemental oxygen.
However, Kayla continued to exhibit signs of respiratory
distress. Kayla's chart indicates that Kayla's nose
was "abnormal" in that it "appears to be
blocked, " that her "respirations [were] labored,
" and that she exhibited "grunting, "
"nasal flaring" and "rhonchi"
(low-pitched wheezing that resembles snoring).
nurses paged Dr. Diana Chalmeta (Dr. Chalmeta), the on-call
pediatrician, who was employed by Piedmont Pediatrics
(Piedmont). Dr. Chalmeta responded that she was coming in and
ordered additional tests. At 3:05 a.m., Dr. Chalmeta
unsuccessfully attempted to pass a catheter through
Kayla's nostrils. Dr. Chalmeta ordered that Kayla receive
supplemental oxygen via an "oxyhood, " which
remained in place until Kayla was intubated at 9:25
a.m., Dr. Chalmeta again unsuccessfully attempted to pass a
catheter through Kayla's nostrils. Dr. Chalmeta then
spoke with a physician at the University of Virginia
Hospital, and Kayla's chart indicates, "decision to
transport to U.Va." At 8:30 a.m., Kayla's oxygen
saturation was measured at 79%. At 9:25 a.m., Dr. Chalmeta
established an airway by intubating Kayla, and at 10:00 a.m.
Kayla was transported to the U.Va. pediatric intensive care
arrival at U.Va., healthcare providers opined that Kayla had
a condition known as pyriform aperture stenosis, or nasal
stenosis. The personnel at U.Va. performed a stenting
procedure to increase the size of her nostrils. By that
point, Kayla had suffered a hypoxic brain injury.
November 17, 2014, Michele Holt (Holt), Kayla's mother,
filed a medical malpractice lawsuit on Kayla's behalf in
the Circuit Court of Fauquier County. The case proceeded to
trial on a second amended complaint against Dr. Chalmeta,
Piedmont, Fauquier Hospital and several nurses, but only the
counts against Dr. Chalmeta and Piedmont, as her employer
(collectively, Dr. Chalmeta) are before the Court in this
appeal. Holt alleges that Dr. Chalmeta was negligent in
numerous ways, three of which are relevant here: failure to
(1) adequately assess Kayla's respiratory distress; (2)
transfer Kayla to a higher care facility sooner; and (3)
secure Kayla's airway sooner. Holt asserts that, as a
result of such negligence, Kayla suffered a severe brain
injury that substantially impairs her physical and cognitive
abilities, requires extensive rehabilitation, and causes
physical and mental anguish.
to trial, Holt identified Dr. Funlola Aboderin (Dr. Aboderin)
as her only standard of care and causation expert witness.
Dr. Aboderin is a board-certified pediatrician of more than
26 years and a neonatologist who practices in hospitals in
Maryland and Washington, DC. She had a license to practice
medicine in Virginia during the relevant timeframe of this
case. Dr. Aboderin's expert designation indicated, in
relevant part, that
Dr. Aboderin is expected to educate the jury about the care
of a neonatal patient such as Kayla Holt, including the
assessment, care and immediate treatment of infant
respiratory distress with choanal or nasal stenosis. . . .
Dr. Aboderin is expected to testify that Dr. Chalmeta
deviated from the standard of care. When Dr. Chalmeta was
presented with an infant in respiratory distress and was
unable to pass the catheter through either nares at
approximately 2:40 am, she had a duty to secure an airway
for Kayla, either through intubation or use of a mouth
guard. She failed to do either. Since Fauquier Hospital was
not equipped to care for Kayla's nasal stenosis, the
standard of care required Dr. Chalmeta to immediately
transfer Kayla to another facility right away after
securing her airway. She breached that duty. Infants are
obligate nose breathers, and it was a breach of the
standard of care to allow Kayla, who was in obvious
respiratory distress to remain without a secure airway
throughout Dr. Chalmeta's care of her. Use of an
oxyhood did not alleviate the requirement to secure an
airway in the presence of nasal stenosis and respiratory
distress and to transport her to a facility equipped to
deal with her condition.
Chalmeta did not object to the designation.
the jury trial on May 5, 2016, Dr. Aboderin testified about
her qualifications. She answered that she was seeing newborns
as a pediatrician during the 2005 to 2007 timeframe, and she
was familiar with respiratory distress in newborns. Dr.
Aboderin testified that she practiced at a hospital
affiliated with Johns-Hopkins University and that "[a]s
a neonatologist on a daily basis [she] see[s] babies in the
newborn nursery . . . [and] any baby that's critical or
needs to come to the intensive care for . . . any breathing
problems." She also teaches and supervises new
physicians, interns, nurses, and residents concerning
pediatrics, and was doing so in 2006.
Aboderin agreed that she was "familiar with the standard
of care required of pediatricians providing care for newborns
in 2006, " and "with the standard of care required
of pediatricians in 2006 . . . when presented with a newborn
with respiratory distress." Dr. Aboderin testified that
the standard of care for assessing a newborn baby with a
potentially blocked airway was the same for a pediatrician
whether practicing in a hospital with a NICU or without such
Aboderin stated that she was familiar with the standard of
care with regard to assessing newborns to determine whether
they had a patent airway,  and in deciding when an oral airway
needed to be secured. She testified that in 2006, she had an
active clinical practice that included assessing newborns to
determine whether they had a blocked airway, and that she was
"familiar with the standard of care required of a
pediatrician to make the decision whether to use an oral
airway." She stated that the standard of care for these
issues was "absolutely" the same whether the
hospital had a NICU or not.
Dr. Aboderin answered that she had "an active clinical
practice or [was] familiar through [her] work with other
pediatricians of the standard of care back in 2006 for when a
pediatrician in a hospital such as Fauquier Hospital was
required to make the decision to transport a newborn to a
higher level of care." She stated that, although she did
not work in a hospital like Fauquier, which did not have a
NICU, she was familiar with the standard of care for
treatment of newborns in such facilities, because,
"working in a high-level care NICU, [she received] calls
from those pediatricians in lower-level care wanting to
transfer babies to us, " providing her with "the
opportunity back in 2006 to discuss the standard of care . .
. of pediatricians in a lower level hospital."
cross-examination regarding her qualifications to testify as
an expert, Dr. Aboderin acknowledged that in a 2014
deposition she stated that she had not placed oral airways
until 2013, but stated that the deposition testimony was
incorrect because she "couldn't remember, but [she]
had, " and she "believed" the "last time
[she] placed an oral airway was . . . in 2004." She
agreed that, as of May 2006, she had never been "called
upon at the bedside to insert an oral airway into a
baby" "in a facility without NICU ...