Fairfax Hosp. System, Inc. v. Curtis, 940992

• Decision Date: 21 April 1995
• Docket Number: No. 940992,940992
• Citation: 249 Va. 531,457 S.E.2d 66
• Court: Virginia Supreme Court
• Parties: FAIRFAX HOSPITAL SYSTEM, INC. v. Patricia CURTIS, as Administrator for the Estate of Jessie Curtis, Deceased, et al. Record

Page 66

457 S.E.2d 66

249 Va. 531

FAIRFAX HOSPITAL SYSTEM, INC. v. Patricia CURTIS, as Administrator for the Estate of Jessie Curtis, Deceased, et al.

Record No. 940992.

Supreme Court of Virginia.

April 21, 1995.

Gary W. Brown, Fairfax (William L. Carey; Miles & Stockbridge, on briefs), for appellant.

Philip J. Hirschkop, Alexandria (David J. McClure; Hirschkop & Associates, on brief), for appellees.

Present: All the Justices.

HASSELL, Justice.

In this appeal of a judgment in a medical malpractice action, we consider the admissibility of certain expert testimony and the opinion of a medical malpractice review panel.

Patricia Curtis, administrator of the estate of Jessie Curtis, filed a notice of claim, pursuant to former Code § 8.01-581.2, against Fairfax Hospital System, Inc. (Hospital) and certain other health care providers. The health care providers requested a medical malpractice review panel. The panel conducted a hearing and held that the evidence did not support a conclusion that the health care providers failed to comply with the appropriate standard of care. Subsequently, the administrator filed this action against Fairfax Hospital and its nurse, Linda S. Beckett, seeking damages for their alleged negligence. The administrator non-suited her claims against Beckett, and the jury returned a verdict in favor of the administrator. We awarded the Hospital an appeal.

In accordance with well-settled principles, we will review the evidence and all reasonable inferences therefrom in favor of the administrator, the recipient of a favorable verdict confirmed by the trial court. Patricia Curtis, a patient at Fairfax Hospital, gave birth to Jessie on February 13, 1989. Jessie had Apgar scores of eight and nine, and her neurological examination was normal. Even though Jessie's birth was uneventful, she was placed in the neonatal intensive care unit and attached to an apnea monitor because she was born to a diabetic mother and, therefore, was at risk for hypoglycemia.

Jessie was monitored closely and once it was determined that her blood sugar level remained within the normal range, she was scheduled for discharge from the Hospital on February 16, 1989, after she had a renal sonogram. The sonogram was not performed as scheduled and, therefore, Jessie was not discharged that day. Dr. Daniele F. Huntington, a neonatologist, authorized the Hospital staff to remove Jessie's apnea monitor because she was no longer at risk for hypoglycemia.

Beckett began her nursing shift at the Hospital's neonatal intensive care unit at 7:00 a.m. on February 17, 1989. Beckett was responsible for four babies, including Jessie. Susan P. Fahey, who was also a nurse at Fairfax Hospital's neonatal intensive care unit, informed Beckett that Jessie should be fed by 8:00 a.m. Jessie apparently had been swaddled in blankets and placed on her stomach about 4:00 a.m. that morning and remained in that position for about five hours. When Beckett began her shift, Jessie was screaming, but no one checked her. Jessie was also "grunting off and on," but Beckett did not "suspect anything wrong."

Sometime after 7:30 a.m., Beckett attended two infants who were seriously ill. She then left the neonatal intensive care unit room to go to the restroom and also to get the necessary equipment to transport Jessie to another area of the hospital where her sonogram would be performed.

Beckett remained out of the room for about six to eight minutes. She returned and checked Jessie about 8:48 a.m. Beckett "flipped her over" and found her in full cardiopulmonary arrest. Jessie was lying "face down, pushed in." Her face was "sort of mashed down" and her "nose [was] flattened" and blue. Dr. Tong Soo Park, a neonatologist who had treated Jessie before her cardiopulmonary arrest, testified that Jessie was in cardiopulmonary arrest for at least 10 to 15 minutes and perhaps as much as 40 minutes.

Beckett, Carol Ann Awad (another nurse in the neonatal intensive care unit), and certain other health care providers, including Dr. Janet K. Hilliard, a neonatologist, were able to resuscitate Jessie. Later that day, Dr. Hilliard told Patricia Curtis and her father, Carle William Curtis, that Jessie had suffocated in her blankets, and "[s]he was found laying flat on her face and she had a blanket over her face."

The administrator's expert witnesses testified that Beckett failed to comply with the applicable standards of care and that her failure to comply with these standards was a proximate cause of Jessie's extensive brain damage that subsequently caused her death four months later. Dr. Hilliard, as well as the administrator's expert witnesses, testified that Jessie's blood arterial gases measured at 9:02 a.m. and 9:09 a.m. on the morning of her cardiopulmonary arrest were consistent with a 15 to 40-minute oxygen deprivation. The administrator's expert witnesses also opined that Jessie suffocated because she had been left "face down" on the mattress, and that she had not been properly monitored in the neonatal intensive care unit.

The trial court permitted the Hospital's expert witnesses to testify that Jessie's death was a near-Sudden Infant Death Syndrome (SIDS) event. According to their testimony, a near-SIDS event is an exclusionary medical diagnosis which is rendered when health care providers are unable to attribute an infant's life-threatening event to any other medical reason. The Hospital's expert witnesses testified that either SIDS or a near-SIDS event may be significantly increased by certain factors, "including maternal smoking, seizures of the mother during pregnancy, trauma, and poor diabetes control."

The Hospital argues the trial court erroneously refused to allow any evidence before the jury that the aforementioned SIDS risk factors identified by their expert witnesses were present in Patricia Curtis' prenatal history. The Hospital says that the trial court "prevented the defense from presenting the necessary evidentiary underpinning of its primary theory--that because of the cumulative effect of repeated in utero insults, the infant suffered from a neurologically induced developmental defect in the brainstem response and arousal mechanisms resulting in a failure to arouse from a normal apneic episode leading directly to the cardiopulmonary arrest." The administrator, however, contends that the trial court did permit the Hospital to present evidence of certain risk factors associated with a near-SIDS event. The administrator also asserts that the trial court properly excluded certain expert testimony because the Hospital's expert witnesses could not say within a reasonable degree of medical probability that certain factors associated with a near-SIDS event specifically caused Jessie's cardiopulmonary arrest.

We agree with the administrator. In Spruill v. Commonwealth, 221 Va. 475, 271 S.E.2d 419 (1980), which the administrator discusses in her brief and the Hospital ignores, we discussed the parameters governing the admissibility of expert testimony. In Spruill, the defendant's mental condition was at issue. The defendant's psychiatrist was asked during direct examination whether the defendant had the capacity to appreciate the nature and consequences of any criminal acts that he may have committed. The Commonwealth objected, and the psychiatrist was examined out of the presence of the jury.

The defendant's counsel asked the psychiatrist whether on the day of the crimes defendant "was suffering from such mental disease or defect that he lacked substantial capacity either to accept the responsibility of his conduct or conform his conduct to the requirements of the law?" The psychiatrist responded, "[w]ell, I couldn't say." Defendant's counsel then asked the psychiatrist whether there was a "possibility" the defendant was insane on the day he committed the crimes, and the psychiatrist responded, "[i]t's a possibility, yes." The trial court refused to admit the testimony on the basis that the psychiatrist's response was "purely speculative." The trial court stated, "[the physician] didn't say he was insane. He said it was a possibility, but that he couldn't say." Id. at 479, 271 S.E.2d at 421.

Approving the trial court's refusal to admit that evidence, we stated:

A medical opinion based on a "possibility" is irrelevant, purely speculative and, hence, inadmissible. In order for such testimony to become relevant, it must be brought out of the realm of speculation and into the realm of reasonable probability; the law in this area deals in "probabilities" and not "possibilities."

Id.

Here, the trial court permitted the Hospital to present evidence to the jury that Patricia Curtis experienced seizures during her pregnancy, that she was a Class D diabetic, that she had smoked cigarettes during her pregnancy, and that she had a difficult time controlling her diabetes during the pregnancy. The trial court also permitted the...