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Holt v. Chalmeta

Supreme Court of Virginia

February 22, 2018


         FROM THE CIRCUIT COURT OF FAUQUIER COUNTY Herman A. Whisenant, Jr., Judge Designate



         In this 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.


         Kayla 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).

         The 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.[1]

         At 8:00 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 unit.[2]

         Upon 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.

         On 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.

         Prior 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[3] 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.

         Dr. Chalmeta did not object to the designation.

         During 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.

         Dr. 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 a facility.

         Dr. Aboderin stated that she was familiar with the standard of care with regard to assessing newborns to determine whether they had a patent airway, [4] 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.

         Additionally, 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."

         On 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 ...

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