Dickerson v. Fatehi

• Court: Virginia Supreme Court
• Writing for the Court: STEPHENSON
• Citation: Dickerson v. Fatehi, 253 Va. 324, 484 S.E.2d 880 (1997)
• Decision Date: 18 April 1997
• Docket Number: No. 961531,961531
• Parties: Shirley DICKERSON v. Nasrollah FATEHI, M.D., et al. Record

Page 880

484 S.E.2d 880

253 Va. 324

Shirley DICKERSON v. Nasrollah FATEHI, M.D., et al.

Record No. 961531.

Supreme Court of Virginia.

April 18, 1997.

Bernard T. Holmes (Holmes & Edmonds, on briefs), Virginia Beach, for appellant.

R. Barrow Blackwell (Ann Mayhew Golski; Kaufman & Canoles, on brief), for appellees Nasrollah Fatehi and Atlantic Neurosurgery, P.C.

A. William Charters (John A. Heilig; Deborah S. Prince; Heilig, McKenry, Fraim & Lollar, on brief), Norfolk, for appellees Rachel Jacobs, R.N., etc. and Millicent P. Spruill, ORT, etc.

Present: CARRICO, C.J., COMPTON, STEPHENSON, LACY, HASSELL, and KOONTZ, JJ., and WHITING, Senior Justice.

STEPHENSON, Justice.

In this medical malpractice action, the trial court, relying solely upon the pleadings and certain pretrial discovery material, granted summary judgment in favor of a physician and two nurses. The court ruled, inter alia, that expert testimony was necessary to establish the appropriate standards of care and breaches thereof, and the principal issue in this appeal is whether that ruling was erroneous.

Shirley Dickerson filed this action against Nasrollah Fatehi, M.D., a neurosurgeon, and his professional entity, Atlantic Neurosurgery, P.C. (collectively, Fatehi), and against Rachel Jacobs, R.N., and Millicent P. Spruill ORT. ¹ Dickerson alleged that, on February 27, 1989, she was admitted to Chesapeake General Hospital for neck surgery to be performed by Fatehi. The next day, Fatehi, assisted by Jacobs, the circulating nurse, and by Spruill, the surgical technician who acted as the scrub nurse, performed an anterior cervical diskectomy.

Dickerson further alleged that, during the course of the surgery, Fatehi "used a blunt tip 18 gauge hypodermic needle, including [a] plastic attachment to the syringe, as a metallic marker [which] ... was intended to be removed prior to closure of the operative site." Fatehi, however, negligently "failed to remove [the] hypodermic needle" from Dickerson's neck at the close of surgery, and Jacobs and Spruill, in violation of their duty of care, negligently failed "to maintain a proper needle count ... [to] ensure the removal of the needle" after surgery.

Following the surgery, Dickerson allegedly experienced "severe pain ... [in] her right arm, hand and neck." Fatehi referred her to Dr. Edward Habeeb, an orthopedic surgeon. Habeeb ordered x-rays of Dickerson's neck and shoulder, but was unable to determine the cause of her pain. He referred her to Fatehi for therapy.

Approximately 20 months after the surgery, Dr. Thomas Queen, a general surgeon, discovered and removed the needle, including the plastic attachment to the syringe, from Dickerson's neck. Dickerson alleged that the negligence of Fatehi, Jacobs, and Spruill (collectively, the Defendants) was a proximate cause of her injuries.

Responding to the Defendants' pretrial discovery requests that Dickerson identify the expert witnesses she expected to call at trial, Dickerson named only a psychiatrist/neurologist and a radiologist. Dickerson had not named any other expert witnesses when the court-ordered discovery cut-off date arrived.

The Defendants moved for summary judgment on the ground that the two experts named by Dickerson were not qualified to testify on the appropriate standards of care. ² The trial court agreed and granted summary judgment in favor of the Defendants. At the same time, the trial court rejected Dickerson's contention that the doctrine of res ipsa loquitur applied. The court reasoned that Dickerson's pleadings and "the undisputed facts" showed that the needle marker "was not in the exclusive control of any one defendant."

Dickerson contends, on appeal as she did in the trial court, that, based upon the facts shown by her pleadings and the Defendants' admissions, expert testimony is not necessary to establish the appropriate standards of care and breaches thereof. Dickerson asserts that "whether a reasonably prudent neurosurgeon ... should account for and remove a hypodermic needle from a patient's body before closing the operative wound is within the range of common experience of a jury." Similarly, Dickerson also asserts that "whether a reasonably prudent circulating nurse and scrub nurse ... [made] and report[ed] an accurate account of all needles ... used during the surgical procedure ... [also is a matter] within the common knowledge and experience of a jury."

In almost all medical malpractice cases, expert testimony is necessary to assist a jury in determining a health care provider's appropriate standard of care and whether there has been a deviation from that standard. Raines v. Lutz, 231 Va. 110, 113, 341 S.E.2d 194, 196 (1986); Bly v. Rhoads, 216 Va. 645, 653, 222 S.E.2d 783, 789 (1976). In certain rare cases, however, when the alleged negligent acts or omissions clearly lie within the range of a jury's common knowledge and experience, expert testimony is unnecessary. Beverly Enterprises-Virginia, Inc. v. Nichols, 247 Va. 264, 267, 441 S.E.2d 1, 3 (1994); accord Jefferson Hospital, Inc. v. Van Lear, 186 Va. 74, 41 S.E.2d 441 (1947).

In considering a motion for summary judgment, a court must adopt those inferences from the facts that are most favorable to the nonmoving party, unless the inferences are forced, strained, or contrary to reason. Carson v. LeBlanc, 245 Va. 135, 139-40, 427 S.E.2d 189, 192...