Doherty v. Aleck

• Decision Date: 02 March 2007
• Docket Number: Record No. 060959.
• Citation: 641 S.E.2d 93
• Parties: John R. DOHERTY v. Debra J. ALECK, D.P.M., et al.
• Court: Virginia Supreme Court

641 S.E.2d 93

John R. DOHERTY v. Debra J. ALECK, D.P.M., et al.

Record No. 060959.

Supreme Court of Virginia.

March 2, 2007.

Melissa W. Scoggins (Paul L. Warren, Warren & Associates, on briefs), for appellant.

Heather S. Deane (Bonner Kiernan Trebach & Crociata, Fairfax, on brief), for appellees.

Present: HASSELL, C.J., LACY, KEENAN, KOONTZ, LEMONS, AGEE, JJ., and CARRICO, Senior Justice.

OPINION BY Senior Justice HARRY L. CARRICO.

BACKGROUND

In this medical malpractice case, the plaintiff, John R. Doherty, filed a motion for judgment against the defendants, Debra J. Aleck, D.P.M., and Podiatry, Ltd., a limited liability company wholly owned by Dr. Aleck. In his motion for judgment, Doherty alleged that Dr. Aleck was negligent, inter alia, in failing to "refrain from contraindicated surgeries," resulting in the amputation of the great toe on Doherty's left foot.

A jury returned a verdict in favor of Doherty in the amount of $850,000.00. The defendants moved to set aside the verdict on the grounds Doherty's medical expert, Dr. Noel P. Patel, had failed to testify to a reasonable degree of medical probability that Dr. Aleck breached the standard of care and that the alleged breach proximately caused Doherty's injuries. The trial court granted the motion, set the verdict aside, and entered final judgment in favor of the defendants. We awarded Doherty this appeal.

STANDARD OF REVIEW

In determining whether the verdict was properly set aside, we are guided by a well-settled standard of review. Under Code § 8.01-680, a trial court is empowered to set aside a verdict in a civil action on the ground it is "plainly wrong or without evidence to support it." However, as we explained in Lane v. Scott, 220 Va. 578, 260 S.E.2d 238 (1979):

"[This power] can only be exercised where the verdict is plainly wrong or without credible evidence to support it. If there is a conflict in the testimony on a material point, or if reasonable [persons] may differ in their conclusions of fact to be drawn from the evidence, or if the conclusion is dependent on the weight to be given the testimony, the trial judge cannot substitute his conclusion for that of the jury merely because he would have voted for a different verdict if he had been on the jury."

Id. at 581, 260 S.E.2d at 240 (quoting Commonwealth v. McNeely, 204 Va. 218, 222, 129 S.E.2d 687, 689-90 (1963)). Further, "in considering the evidence, we give the recipient of the verdict the benefit of all substantial conflicts in the evidence and all reasonable inferences that may be drawn from the evidence." Shalimar Dev., Inc. v. Federal Deposit Ins. Corp., 257 Va. 565, 570, 515 S.E.2d 120, 123 (1999).

THE FACTS

The record shows that Doherty came under Dr. Aleck's care in April of 2000 for a callous on the side of the great toe on his left foot. At the time, Doherty was 74 years of age and suffering from diabetes and diabetic neuropathy with a history of quintuple bypass surgery and the installation of a pacemaker one year earlier, as well as colon cancer and prostate cancer several years earlier. In her 11 years of practice, Dr. Aleck had seen only two other patients who had undergone quintuple bypass surgery.

Dr. Aleck began a course of treatment of Doherty's callous, which included periodically shaving the callous and having the plaintiff wear a shoe that, he said, did not relieve the pain in his toe and got his "back out of whack." The shaving process continued for about ten months to the point where the process caused the callous to bleed and create a hole in the callous.

By February of 2001, Doherty had developed a neuropathic ulcer in the same area as the callous, and his toe became red and swollen. He made an appointment with Dr. Aleck, who noticed there was a "brewing infection underneath the skin." She "cut it, drain[ed] it, cultured it," and put Doherty "on an antibiotic right away."

Nine months later, x-rays revealed a bone spur on Doherty's left great toe "that was causing it . . . not to heal." On December 5, 2001, Dr. Aleck performed surgery in her office and removed the bone spur, and it is this surgery that is the subject of the present controversy. Doherty returned home the same day with his foot completely bandaged.

On a follow-up visit five days later, Dr. Aleck removed the bandage, examined Doherty's toe, and indicated everything was "fine." Two days later, Doherty's wife called Dr. Aleck's office because Doherty was in such pain that he was crying and his toe was hot and red. Mrs. Doherty was only able to reach Dr. Aleck's assistant, who told her to increase the pain medication, which she did. In a second conversation the same day, the assistant told Mrs. Doherty that "they had done . . . extensive surgery on the foot."

Early on the morning of December 12, Mrs. Doherty called Dr. Aleck's office again, this time in tears, because her husband was "hurting so bad" and she "could smell something but [she] didn't know what it was." She asked to speak to the doctor, but was only allowed to talk to the assistant. About six o'clock that evening, Dr. Aleck called Mrs. Doherty, who told the doctor what she had reported to the assistant earlier in the day. Dr. Aleck told Mrs. Doherty to "bring [Doherty] in first thing in the morning." Mrs. Doherty asked where Dr. Aleck was, and when she was told the doctor was in the office, Mrs. Doherty said she was "bringing him tonight." Mrs. Doherty borrowed a wheelchair from a neighbor, put her husband in a car, and drove him to Dr. Aleck's office.

Dr. Aleck examined Doherty's toe and found it malodorous, blackish in color, and with hemorrhagic drainage. "The minute [Dr. Aleck] saw [the toe]," she knew it "was a serious condition." As a podiatrist, she could only co-admit patients to a hospital, and she had to call several other doctors before she could arrange for Doherty's admission. Mrs. Doherty and other family members who had come to Dr. Aleck's office took Doherty to the emergency room at Maryview Hospital. Doherty was admitted to the hospital, and the next morning was examined by Dr. Elias J. Arbid, a vascular surgeon, who found Doherty suffering from "gangrene with a necrotizing infection" with "no way to salvage the toe." Dr. Arbid then amputated the toe.

ANALYSIS

On appeal, the defendants argue that the trial court was correct in setting aside the jury verdict because, as they argued in their motion to set aside the verdict, Doherty's expert witness, Dr. Patel, did not testify to a reasonable degree of medical probability that Dr. Aleck breached the standard of care and that the alleged breach proximately caused Doherty's injuries. As Doherty points out, we have held that this argument is properly considered a challenge to the admissibility of the evidence, not a challenge to the sufficiency of the evidence. Bitar v. Rahman, 272 Va. 130, 139, 630 S.E.2d 319, 324 (2006). Such a challenge must be raised when the evidence is presented and, as Bitar explains, comes too late "if the objecting party remains silent during its presentation and brings the matter to the court's attention by a motion to strike made after the opposing party has rested." Id. In this case, the defendants did not object to the admission of Dr. Patel's testimony and, thus, the defendants' argument challenging the adequacy of Patel's testimony on the ground it was not to a reasonable degree of medical probability was not timely made. Therefore, the trial court should not have considered this argument in deciding whether there was sufficient evidence to sustain the jury verdict and we will not consider it here.^*

The question in this case is not whether Dr. Aleck was negligent in the way she performed the spur-removal surgery on Doherty's toe on December 5, 2001, but whether she was negligent in performing the surgery at all. Our consideration of the issue of breach of the standard of care, therefore, will focus upon whether, as Doherty's motion for judgment charged, the surgery was "contraindicated."

BREACH

Dr. Patel, Doherty's medical expert, testified that, given Doherty's medical history, Doherty was "a poor candidate" for the surgery Dr. Aleck performed on December 5, 2001, and that the surgery "was not medically necessary at the time." Dr. Patel said that "[t]his is not an emergency procedure, this is more elective"; Doherty was more at risk of infection, gangrene, and amputation than one not suffering from similar conditions; and "the standard of care . . . with respect to doing surgery" would require one to "be very reserved and conservative and...