Drinkard-Nuckols v. Andrews

• Decision Date: 14 January 2005
• Docket Number: Record No. 040585.
• Citation: 269 Va. 93,606 S.E.2d 813
• Court: Virginia Supreme Court
• Parties: Patricia A. DRINKARD-NUCKOLS, Executor of the Estate of Bermuda H. Drinkard, Deceased v. William C. ANDREWS, Jr., M.D., et al.

606 S.E.2d 813

269 Va. 93

Patricia A. DRINKARD-NUCKOLS, Executor of the Estate of Bermuda H. Drinkard, Deceased v. William C. ANDREWS, Jr., M.D., et al.

Record No. 040585.

Supreme Court of Virginia.

January 14, 2005.

Monica Taylor Monday (S.D. Roberts Moore; Charles H. Smith, III; Anthony M. Russell; Gentry, Locke, Rakes & Moore, on briefs), Roanoke, for appellant.

Henry M. Sackett, III, Lynchburg; Elizabeth Guilbert Perrow (George W. Wooten; Peter D. Vieth, Roanoke; Edmunds & Williams; WootenHart, on briefs), for appellees.

Present: All the Justices.

KINSER, Justice.

In this medical malpractice action, the plaintiff objected to the introduction of evidence concerning what the defendant doctors expected from other physicians with regard to the handling and communication of the interpretation of an x-ray, thereby suggesting that physicians other than the defendants were negligent. Because the plaintiff presented testimony on the same subject in her case-in-chief, her objection is waived and the circuit court's admission of such evidence cannot be grounds for reversal. Thus, we will affirm the judgment of the circuit court.

Bermuda H. Drinkard was seen in the emergency room at the Lynchburg General Hospital on March 7, 2000, complaining of left shoulder, wrist, and arm pain as a result of a fall that she had sustained. Dr. Patrick Wynnyk initially treated Drinkard in the emergency room and diagnosed a left wrist fracture based on the results of x-rays of her left arm and wrist. Consequently, Dr. Wynnyk contacted the orthopedic surgeon on call, Dr. William C. Andrews, Jr., about treating Drinkard's fracture. Dr. Andrews subsequently arrived at the emergency room, at which time Dr. Wynnyk turned Drinkard's care over to Dr. Andrews. Dr. Wynnyk did not see Drinkard again. Upon evaluating Drinkard, Dr. Andrews discharged her from the emergency room to return home but scheduled her for out-patient wrist surgery the following day.¹

At some point during Drinkard's treatment in the emergency room, an x-ray of her chest was taken.² Dr. Kiah T. Ford, III, a radiologist, interpreted the x-ray and found a four-centimeter mass in Drinkard's left lung. Dr. Ford opined that the mass was a "significant" and "unexpected" finding, requiring further evaluation. However, he admitted that he did not personally contact Dr. Wynnyk or any other physician with regard to his interpretation of the chest x-ray.³ Nor did he communicate his findings to Drinkard. Instead, he sent a "wet read"⁴ and the x-ray films back to the emergency room, and dictated his report, which he believed was available to any physician at the hospital.

The next day, when Drinkard underwent out-patient surgery for her fractured wrist, Dr. Ford's written report concerning Drinkard's chest x-ray was in her chart. However, Dr. Andrews never looked through Drinkard's chart before the surgery even though a nurse had noted on the chart abnormal test results with regard to the chest. Nor did the anesthesiologist point out the abnormal chest x-ray to Dr. Andrews on the day of surgery. Thus, Dr. Andrews did not review or know about Dr. Ford's interpretation of the chest x-ray at that time or at any time during the ensuing three months when he saw Drinkard in his office on six occasions. Consequently, he never communicated to Drinkard the fact that she had a mass in her left lung.

On September 14, 2000, Drinkard saw her family doctor, who diagnosed her as "chronically ill" and ordered a chest x-ray and CT scan. Those tests revealed a large tumor that had grown since the March 2000 chest x-ray and was at that time "incurable cancer." This was the first time Drinkard learned that she had lung cancer. Drinkard subsequently died on October 10, 2000, due to the progression of the cancer.

Patricia A. Drinkard-Nuckols, as executor of Drinkard's estate, then filed this medical malpractice, wrongful death action against Dr. Andrews; Piedmont Orthopaedic Surgery, Inc. ("Piedmont Orthopaedic"), Dr. Andrew's employer; Dr. Ford; and Radiology Consultants of Lynchburg, Inc., Dr. Ford's employer (collectively, "the defendants").⁵ Drinkard-Nuckols alleged that the defendants failed "to inform [Drinkard] that there was a mass in her chest that needed further exploration, ... failed to inform [Drinkard] that she had a primary pulmonary neoplasm, and ... failed to follow through to provide treatment ... so that [Drinkard] would stand a reasonable chance of being cured of what turned out to be lung cancer."

Before trial, Drinkard-Nuckols filed a motion in limine to exclude any evidence and/or argument suggesting that health care providers other than the defendants were negligent. After hearing argument of counsel, the circuit court sustained the motion in part, ruling that the defendants could not present expert testimony that someone else was negligent. However, the court stated that the defendants could present testimony "as to why the [d]efendants did not violate the standard [of care], because the [d]efendants don't normally take these things, these x-rays and do what [the plaintiff claims] they should have done."

At trial, a jury returned a verdict in favor of the defendants. The circuit court subsequently entered a final order in accordance with the jury verdict. We awarded Drinkard-Nuckols this appeal.

The question presented on appeal by Drinkard-Nuckols is whether the circuit court erred in allowing testimony from Dr. Andrews and Dr. Ford, as well as an expert witness, about what Dr. Andrews and Dr. Ford could expect from other physicians with regard to the handling and communication of the interpretation of the decedent's chest x-ray. Drinkard-Nuckols asserts that such testimony introduced evidence of negligence by non-party physicians; that such negligence was not a superseding, intervening cause of Drinkard's death; and that it was therefore irrelevant to any matter at issue in the case. The introduction of what Drinkard-Nuckols dubs "expectation evidence" was, according to her, "simply an attempt to introduce through the back door evidence that some other physician, who was not a party to the action, was negligent."

Drinkard-Nuckols complains about the following testimony and argues that it was inadmissible "expectation evidence":

(1) Cross-examination of Dr. Andrews by his attorney after Drinkard-Nuckols called him as an adverse witness in her case-in-chief:

Q: Now once the patient comes to the actual operating area on a different floor and the anesthesiologist reviews the records, what is your expectation in terms of what the ... anesthesiologist is going to do in terms of the chest x-ray?

A: The anesthesiologist in our hospital reviews all of the pertinent data to decide whether a patient can or cannot undergo surgery. That's part of their normal preoperative routine.

Q: If there's an abnormality such as was noted in this case, what's your expectation about that information being brought to your attention?

A: My expectation would be that — my expectation is that the abnormality would be pointed out to the anesthesiologist, who would then point it out to me.

Q: Did that happen in this case?

A: No.

Q: And is that your typical experience, typical practice?

A: Yes.

Q: All right. And with that practice, is there any reason for you to go behind that and look for that information in the chart yourself?

A: None.

Q: All right. And did you in fact do that in this case?

A: No I did not.

(2) Direct examination of Dr. Andrews by his attorney:

Q: Now, in terms of your practice with Lynchburg General Hospital, what is your expectation about what the anesthesiologist is going to do if, in fact, there's an abnormality noted in the chest x-ray?

A: The anesthesiologist, when he or she reviews the chart, if there's ever an anomaly, they always tell us.

Q: Has that, in fact, been your experience?

A: Yes.

...

Q: Who do you get the information from?

A: The anesthesiologist.

Q: Did that occur in this case?

A: No, it did not.

(3) Direct examination of Dr. Michael O'Brian, an expert witness in the field of orthopedic surgery who testified on behalf of Dr. Andrews:

Q: And in that setting in the operating room, what is our expectation about being advised if there is an abnormality in the chest x-ray report?

A: I've had it happen to me. The anesthesiologist will say before we start the case Dr. O'Brian we have a problem. This chest x-ray is abnormal. In this case it's cancelled frequently.

Q: And in your opinion, is that what Dr. Andrews' expectation was and should have been in this case?

A: Absolutely.

Q: From your standpoint as a member of [an orthopedic surgery] team, what is your expectation about where you're going to learn[,] ... [f]rom what ... person are you going to learn if there is a problem with the chest x-ray?

A: ... [I]f it's a significant finding I'll get a phone call from the radiologist who's read the x-ray, or sometimes it's the emergency room physician who has reviewed the x-ray.... In the surgical setting it's the anesthesiologist or his associate that will inform me.

...

Q: Once you get to the operating room, whose job is [it to look at the chart]?

A: ... [I]t's the anesthesiologist who decides yes or no it's okay to proceed with anesthesia. So I would rely very much to alert me to an abnormal chest x-ray.

Q: In your opinion, if Dr. Andrews relied on that in the operating room, in this case was that acceptable for what a reasonably prudent orthopedist would do?

A: No question.

(4) Direct examination of Dr. Ford by Drinkard-Nuckols when she called him as an adverse witness during her case-in-chief:

Q: [I]n the radiology department, your expectation is when you send [a report] to outpatient surgery, your expectation is the doctor who is listed by M.D. will not only receive it, but review it, is it not?

A: My expectation is an agent or physician in outpatient will read this.

Q: And Dr. Andrews will read it.

A: My training is ... generally the physician whose

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