Hudson v. Surgical Specialists, Inc., 880437
| Citation | 387 S.E.2d 750,239 Va. 101 |
| Decision Date | 12 January 1990 |
| Docket Number | No. 880437,880437 |
| Parties | Jeanetta HUDSON, Administratrix, etc. v. SURGICAL SPECIALISTS, INC., et al. Record |
| Court | Virginia Supreme Court |
Barry J. Nace (W. McMillan Powers, Paulson, Nace, Norwind & Sellinger, Washington, D.C., on brief), for appellant.
Robert W. Hardy; Teresa R. Warner (Fay F. Spence, John A. Heilig, Knight, Dudley, Pincus, Dezern & Clarke, Heilig, McKenry, Fraim & Lollar, Norfolk, on briefs), for appellees.
Present: CARRICO, C.J., COMPTON, STEPHENSON, RUSSELL, WHITING, and LACY, JJ., and POFF, Senior Justice.
The sole question on appeal in this medical malpractice case is whether the trial court erred in restricting the plaintiff's evidence to the specific facts set forth in the plaintiff's notice-of-claim letter.
In 1983, Jeanetta Hudson, administratrix of the estate of Jack B. Hudson, Sr. (plaintiff), sent a letter, purporting to be a notice of claim under Code § 8.01-581.2 A, to Surgical Specialists, Inc., Dr. Crile Crisler, Dr. Robert D. Brickman, Dr. Edwin Robey, Eastern Virginia Graduate School of Medicine and Medical Center Hospitals. Four months later, the plaintiff filed a motion for judgment against those parties, seeking to recover damages for the wrongful death of her late husband, Jack B. Hudson, Sr. (the patient), who died on September 19, 1981, allegedly as a result of the negligence of the defendants during cardiopulmonary bypass surgery performed at Norfolk General Hospital four days earlier. None of the parties requested a review by a medical malpractice panel. On February 6, 1986, the plaintiff took a voluntary nonsuit.
The plaintiff sent a second notice of claim, essentially identical to the first, to the same defendants. On August 4, 1986, the plaintiff filed a second wrongful death action against them, and, again, no medical malpractice panel was requested. Extensive discovery proceedings ensued. By agreement of the parties, Drs. Brickman and Robey and the Eastern Virginia Graduate School of Medicine were dismissed as defendants. The case proceeded to a jury trial on August 17, 1987, against Dr. Crisler, Surgical Specialists, Inc., and Medical Center Hospitals.
At the close of the plaintiff's evidence, Medical Center Hospitals moved to strike on the ground that no expert testimony had been offered to show that it had violated the appropriate standard of care. The court granted the motion, and the hospital was dismissed. At the close of all the evidence, the jury returned a verdict in favor of Surgical Specialists, Inc. and Dr. Crisler, the sole remaining defendants. The court entered judgment on the verdict and we granted the plaintiff an appeal, limited to the question whether the court erred in restricting the plaintiff's evidence to the specific facts set forth in her notice of claim.
The plaintiff's notice of claim reads as follows:
This is to advise you that I represent Jeanetta Hudson, widow of Jack B. Hudson, Sr. Pursuant to § 8.01-581.2 of the Code of Virginia of 1950 as amended, you are hereby provided written notice of alleged medical malpractice. You are alleged to have negligently performed double aortocoronary bypass with saphenous vein graft sequential graft to the diagonal and left anterior descending coronary arteries with a cardiopulmonary bypass on or about September 15, 1981 on the above named patient resulting in the death of Jack B. Hudson, Sr. You are alleged to have failed to follow standard and generally accepted procedures for bypass surgery in that you did not properly cool and fibrilate [sic] the heart prior to the insertion of the left ventricular vent into the right superior pulmonary vein. This alleged act of negligence resulted in air entering the patient's heart and being ejected into the arterial system ultimately resulting in the death of Jack B. Hudson, Sr.
Later, the plaintiff's theory of the case proved to be more complex than the notice indicated. The only expert witness who testified for the plaintiff was Diane Janet Sansonetti, M.D. * She testified that the patient's death resulted from the inadvertent admission of air to the left side of the heart during the insertion of a vent in the right superior pulmonary vein, as a part of the cardiopulmonary bypass procedure. Efforts to remove the resulting air bubbles from the bloodstream were unsuccessful. The bubbles traveled to the brain, causing the patient's death.
Dr. Sansonetti's opinion was that the appropriate standard of care would have required reduction of the risk of air entering the heart during venting by either of two methods: first, ensuring that the heart was full of blood while inserting the vent, thus avoiding the risk of a vacuum which would draw air into the heart, or second, causing the heart to stop beating during the venting procedure. The heart could be stopped by cooling it with a cold saline solution, causing the heart to fibrillate. Fibrillation is a shallow vibration of the heart, which greatly lessens its normal pumping action. If air were admitted while the heart was fibrillating, the air would less likely be pumped to the brain, and could be more easily removed from the bloodstream.
The plaintiff's theory was two-fold. First, she contended that the defendant surgeon need not have inserted a vent at all, but if he did employ that technique, the appropriate standard of care required that he first ensure that the heart-lung machine was not withdrawing blood faster than the still-beating heart could replenish it. Dr. Sansonetti testified that the rapid withdrawal of blood was in fact the cause of the admission of air. Because the heart-lung machine had withdrawn blood rapidly, the heart was less full than expected. Thus, when the surgeon made an incision in the pulmonary vein, a vacuum was present which drew air into the bloodstream. The plaintiff also contended that the surgeon was negligent in failing to place a cross-clamp on the aorta before making the incision. Such a clamp would have minimized the risk of admitting air and would have trapped in the aorta any air that might have entered, where it could have been removed before it reached the brain. Thus, the notice of claim alleged acts of negligence which constituted only a peripheral part of the theory the plaintiff espoused at trial.
Before the trial began, the defendants had received, in addition to the pleadings, answers to interrogatories, a 13-page summary of the opinions of plaintiff's proposed expert witnesses, a de bene esse deposition of one of the experts, and discovery depositions of two of the experts. It is undisputed that the defendants knew, before trial, the details of the testimony of the plaintiff's witnesses.
Nevertheless, on the opening day of the trial, the defendants move...
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Morrison v. Bestler
...of the nature of the claim, to assist the parties in case preparation, and to encourage settlement prior to trial. Hudson v. Surgical Specialists, 239 Va. 101, 387 S.E.2d 750 (this day decided); Cowan v. Psychiatric Associates, 239 Va. 59, 387 S.E.2d 747 (this day decided). As such they are......
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Ellis v. Kilgore
...Cowan v. Psychiatric Assoc., 239 Va. 59, 387 S.E.2d 747, 749 (1990) (reasonable compliance required); Hudson v. Surgical Specialists, Inc., 239 Va. 101, 387 S.E.2d 750, 753 (1990) (particular statement of claims not required); Morrison v. Bestler, 239 Va. 166, 387 S.E.2d 753, 757-58 (1990) ......
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Dolwick v. Leech, Civ. A. No. 2:92CV140
...that the notice of claim under Va.Code Ann. § 8.01-851.2 does not require a particular statement of claims, Hudson v. Surgical Specialists, 239 Va. 101, 387 S.E.2d 750, 753 (1990); Grubbs v. Rawls, 235 Va. 607, 369 S.E.2d 683, 687 (1988), that a disclaimer within the notice of claim as to t......
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Cowan v. Psychiatric Associates, Ltd., 881059
...At the outset, we stress that a notice of claim is not a pleading and should not be judged as such. Hudson v. Surgical Specialists, Inc., 239 Va. 101, ----, 387 S.E.2d 750, 752 (1990) (this day decided). The sole purpose of the notice is to apprise a health care provider of the nature of a ......