MARY BETH DIXON, ET AL.
THE CIRCUIT COURT OF THE CITY OF NORFOLK Michelle J. Atkins,
E. POWELL JUSTICE.
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
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 carries many risks because it is
"almost a blind part of the procedure." Sublett
acknowledged the inherent risks and consented to the surgery.
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." 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."
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.
trial, Sublett alleged Dr. Dixon negligently perforated
Sublett's small bowel during the laparoscopic total
hysterectomy, 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.
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.
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.
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
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.
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 ...