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Dixon v. Sublett

Supreme Court of Virginia

February 22, 2018





         This appeal arises from a medical malpractice action in which a jury rendered a verdict in favor of the patient, Donna Sublett, and against Mary Beth Dixon, M.D., Women Care Centers, PLC and Mid-Atlantic Women's Care, PLC (collectively "Dixon"). Dixon argues that the Circuit Court of the City of Norfolk ("circuit court") erred in denying her motion to strike Sublett's evidence on the basis that Sublett failed to prove causation. Dixon also argues that the circuit court erred in admitting medical bills into evidence without sufficient foundation.

         I. BACKGROUND

         In 2012, Sublett consulted with Dr. Dixon and made the decision to undergo a laparoscopic total hysterectomy. At trial, Dr. Dixon testified she met with Sublett and explained the risks and benefits of the laparoscopic procedure, including that placement of trocars[1] carries many risks because it is "almost a blind part of the procedure." Sublett acknowledged the inherent risks and consented to the surgery.

         On June 4, 2012, Dr. Dixon and her partner, Dr. G. Theodore Hughes, performed the procedure. Dr. Dixon explained, as noted in the operative report, that Dr. Hughes placed "the initial trocar though the belly button" at which point the trocar "appeared to be very close to the omentum."[2] The trocar had to be pulled back but "no apparent injury was noted to the omentum or the bowel." Dr. Dixon further explained how she performed the surgery and that once she removed the uterus and cervix she looked for any injury while the abdomen was deflated and then "went back and . . . put the gas back inside the abdomen and looked around . . . to make sure there was no bleeding or anything abnormal that shouldn't be there." She said she was "comfortable that there was no injury to the bowel."

         On June 5, Dr. Dixon saw Sublett six times because Sublett was experiencing pain, shortness of breath, and difficulty passing urine. Dr. Dixon testified that pain was expected after such a surgery, but that she called for consultations with a pulmonologist, urologist, nephrologist, and a hospitalist. On the morning of June 6, Sublett's symptoms had not resolved and Dr. Dixon ordered a CT scan of Sublett's pelvis and abdomen. Dr. Dixon went off duty, but shifted Sublett's care to Dr. Hughes. Dr. Hughes informed Dr. Dixon later that day that Dr. Barrett, a general surgeon, had performed an open surgery on Sublett and identified and repaired a bowel injury.

         At trial, Sublett alleged Dr. Dixon negligently perforated Sublett's small bowel during the laparoscopic total hysterectomy[3], failed to detect the perforation, and failed to obtain a general surgery consultation to repair the injury. She alleged that Dr. Dixon's negligence proximately caused, and would continue to cause, her great pain and suffering and medical expenses.

         Sublett called Dr. Barrett to testify as a treating physician pursuant to Code § 8.01-399. Dr. Barrett evaluated Sublett. At trial, she explained her consultation and operative reports, noting that the CT scan that Dr. Dixon ordered did not conclusively demonstrate any bowel injury, but that bowel injury was high on Dr. Barrett's differential diagnosis, as was a ureteral injury given Sublett's acute renal failure. Dr. Barrett performed laparoscopic exploratory surgery in an attempt to find and repair the bowel injury. She was unable to identify a hole, but discovered that intestinal contents had leaked outside the bowel into the abdominal cavity. Dr. Barrett converted the laparoscopic procedure into an open surgery and removed the perforated portion of the bowel, resected it, and irrigated the abdominal cavity to remove the contamination.

         Sublett presented expert testimony from Dr. Jeffrey Soffer, an OB/GYN physician, who testified that the standard of care required Dr. Dixon to recognize the bowel injury before concluding the surgery on June 4 and to consult a general surgeon so that the injury could be immediately repaired. He acknowledged that Dr. Dixon looked for injury, but testified that:

As standard of care dictates, she had an obligation to carefully inspect, as I mentioned before, all surrounding structures, specifically the small intestine, and when I say inspected, I mean not just look at it but take your laparoscopic instruments, put them inside, turn the bowel upside down, look at it from every angle. As I said, if it takes some extra time to do that, you do it. That is your obligation to the patient.

         Sublett attempted to elicit testimony from Dr. Soffer regarding his opinions as to how a general surgeon would have repaired the injury. First, Dr. Soffer testified that Dr. Dixon could have called a general surgeon "in two days earlier. . . and they attempt to fix this perforation, and it most likely would have been fixed laparoscopically." The circuit court sustained Dr. Dixon's objection to this statement. Counsel for Sublett again tried to elicit testimony from Dr. Soffer that a general surgeon would have repaired the injury laparoscopically. Dr. Dixon again objected noting that Dr. Soffer was "proffered for the one thing, to talk about Dr. Dixon and the standard of care in failing to recognize this injury. Now we are talking about a repair procedure which he hasn't been qualified to do and says he would call a general surgeon to have him do it, and it is outside the scope of his expertise." Sublett argued that Dr. Soffer's expert witness designation went directly to the issue of the treatment of Sublett, which would include how the general surgeon would have repaired the injury. The circuit court sustained Dr. Dixon's objection finding that "[i]t is beyond what he is proffered for. He has testified to one thing. He was offered for one thing. Now he was attempting to get into how it could have been done, how it would have been done, and that is beyond [the designation]."

         Thereafter, Dr. Soffer was only allowed to testify that, in his opinion, had Dr. Dixon discovered the bowel injury, she should have immediately consulted a general surgeon. Sublett also sought to elicit testimony from Dr. Soffer as to the timing of the repair. In response to a question from Sublett's attorney as to the significance of a consult, Dr. Soffer testified, "[c]ertainly if you have a consultation intraoperatively, immediately, it can be fixed at that time." Again, Dr. Dixon objected to this testimony as being outside Dr. Soffer's expertise. The trial court sustained the objection. Sublett did not present any other witness testimony regarding how a general surgeon would have addressed a bowel injury.

         Dr. Soffer also testified that Sublett's medical bills were customary and reasonable for the care Sublett received. Dr. Dixon stipulated that the bills were customary and reasonable as to the amounts, but objected to the admission of the bills for lack of a proper foundation, arguing that pursuant to McMunn v. Tatum,237 Va. 558, 379 S.E.2d 908 (1989), expert testimony was required to establish that the medical bills were rendered necessary solely because of Dr. Dixon's alleged negligence. She added that Dr. Soffer was neither designated to nor did he testify that the medical bills were causally related to any negligence by Dr. Dixon, which was obvious because ...

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