Lloyd v. Kime

• Decision Date: 11 January 2008
• Docket Number: Record No. 070190.
• Citation: 654 S.E.2d 563
• Parties: Timothy I. LLOYD v. Robert C. KIME, III, M.D., et al.
• Court: Virginia Supreme Court

654 S.E.2d 563

Timothy I. LLOYD v. Robert C. KIME, III, M.D., et al.

Record No. 070190.

Supreme Court of Virginia.

January 11, 2008.

James B. Feinman, Lynchburg (C. Richard Cranwell, Vinton; Feinman & Associates, Lynchburg; Cranwell & Moore, Vinton, on briefs), for appellant.

Charles Y. Sipe (Goodman, Allen & Filetti, on brief), Charlottesville, for appellees.

Present: All the Justices.

OPINION BY Justice DONALD W. LEMONS.

In this appeal, we consider whether the trial court erred in using discovery deposition testimony from the plaintiff's expert witness to sustain a motion in limine excluding the witness's testimony and subsequently granting summary judgment for the defendant based on the plaintiff's lack of an expert witness. Further, we consider whether the trial court erred in holding that the plaintiff's witness was not qualified to testify as to standard of care, breach of the standard of care, and proximate causation in this medical malpractice action because the expert failed to meet the requirements of Code § 8.01-581.20.

I. Facts and Proceedings Below

On or about June 12, 2001, Timothy Lloyd ("Lloyd") sustained a back injury while at work. On June 25, Lloyd was seen by Dr. Robert C. Kime, III ("Dr. Kime"), an orthopaedic surgeon who worked for Hess Orthopaedics and Sports Medicine, P.L.C. ("Hess Orthopaedics") and specialized in surgery of the spine. Lloyd had a two-week history of severe neck and left arm pain, as well as motor and sensory deficits on the left side. Dr. Kime determined that Lloyd had two herniated disks in his neck, one at the C5-6 level and one at the C6-7 level. The herniated disks were pressing on nerve roots exiting from the spinal cord and on the spinal cord itself.

On June 29, 2001, Dr. Kime performed an anterior cervical discectomy decompression (a surgical procedure to remove the herniated disks from compressing the nerve roots) on Lloyd. After the surgery, Lloyd was taken to the Post Anesthesia Care Unit ("PACU"). Upon Lloyd's arrival in the PACU at 3:50 p.m., a nurse recorded her assessment that Lloyd "moves left leg, feels touch to right leg, no movement." Between that time and 7:45 p.m., nurses in the hospital recorded on four more occasions that Lloyd was unable to move his right leg, toes, and foot.

After Lloyd's surgery, Dr. Kime performed a detailed neurological exam, and wrote in his operative note at 6:28 p.m. that "[Lloyd] has good motor function and no complaints of residual numbness or tingling in either upper extremity or the left lower extremity. He had no numbness in the right side lower extremity but did complain of diffuse weakness of the right leg and states he could not actively flex or extend the toes." Dr. Kime recorded that the cause of the symptoms was not clear, but that "at worse [sic] the patient has a small cord contusion and most likely this is a problem that will resolve spontaneously over the course of the next several days to several weeks."

The following morning, Dr. Kime performed another neurological examination at 9:00 a.m. The examination showed that Lloyd had not improved. Lloyd had weakness in his right arm and leg, milder weakness in his left arm, and numbness in his abdomen. He had no tibialis anterior or quadriceps function on his right side, but had some function in the other muscles in his right leg. Because of these symptoms, Dr. Kime started Lloyd on a 24-hour course of the intravenous steroid Solu-Medrol to reduce possible swelling around the spinal cord. An MRI completed around 12:37 that afternoon indicated swelling in the spinal cord at the C6-7 level. Lloyd remained in the hospital until July 5, 2001, when he was discharged to be treated with physical therapy and medication. Lloyd continued to suffer from unsteadiness, weakness in his right arm and leg, and pain in his abdomen. He began to develop difficulty swallowing and sexual dysfunction.

Lloyd filed a motion for judgment against Dr. Kime and Hess Orthopaedics for medical malpractice in the performance of the anterior cervical discectomy surgery and for his post-operative treatment in the hospital. Specifically, Lloyd alleged that Dr. Kime was negligent in performing the surgery because "Dr. Kime should not have cut Lloyd's spinal cord with his [surgical] instruments so as to leave Lloyd partially paralyzed." Also, Lloyd alleged that Dr. Kime should have recognized that Lloyd had suffered a partial spinal cord injury during surgery and administered a large dose of Solu-Medrol within the first eight hours after the surgery. Lloyd designated Dr. Anthony Guy Lace Corkill ("Dr. Corkill") as his only expert witness on the required standard of care, deviation therefrom, and proximate causation.

Dr. Corkill intended to testify at trial that the standard of care for surgeons performing spinal surgeries required Dr. Kime to "not cut the spinal cord with the surgical instruments in such a way as to cause permanent paralysis," and to "initiate conventional heavy steroid dosage immediately post-operatively." At the time of Lloyd's surgery, Dr. Corkill was a practicing neurologist. Though Dr. Corkill had performed spinal surgeries, including anterior cervical discectomies, in the past, he had not performed any surgeries, worked in a hospital, or had hospital privileges since 1997.

Dr. Kime moved to exclude the testimony of Dr. Corkill because he did not meet the requirements of Code § 8.01-581.20. The trial court read portions of the depositions of Dr. Corkill, Dr. Kime, and the defense expert witness Dr. Adel S. Kebaish, and found that the relevant medical procedures in the case were the performance of the surgery itself and the immediate post-operative care following the surgery. The trial court held that Dr. Corkill was not qualified to testify as to the standard of care for either procedure under Code § 8.01-581.20(A), and was also not qualified to testify as to breach of the standard of care or proximate causation. The court denied Lloyd's request to file a supplemental expert designation to offer another surgeon to testify on the standard of care, because the time for designation of experts pursuant to the pretrial scheduling order had expired.

After the trial court granted Dr. Kime's motion in limine to exclude Dr. Corkill's testimony, Dr. Kime moved for summary judgment on the grounds that Lloyd had no designated expert witness to testify on the standard of care, breach of that standard, or proximate causation, and therefore could not establish a prima facie case of medical malpractice. The court granted the motion for summary judgment.

Lloyd appeals to this Court on six assignments of error:

1. The trial court erred in excluding Lloyd's expert witness and entering summary judgment based on deposition testimony without allowing Lloyd the opportunity to qualify his expert during voir dire at trial.

2. The trial court erred in holding that one of the relevant medical procedures at issue was the immediate post-operative care following surgery.

3. The trial court erred by failing to consider and apply the presumption of qualification found in VA Code § 8.01-581.20(A).

4. The trial court erred in assuming, without any evidence, that there was a significant medical distinction in evaluating, diagnosing and treating an acute spinal cord injury in a post-anesthesia care unit as opposed to an office setting or anywhere else.

5. The trial court erred in excluding Dr. Corkill's testimony of the standard of care required during surgery and in the use of Solu-Medrol when there was no dispute on the applicable standard of care.

6. The trial court erred in holding that the qualification requirements of VA Code § 8.01-581.20 apply to expert testimony regarding a breach of the standard of care and causation.

II. Analysis

A. Use of Discovery Depositions to Disqualify Expert

Rule 3:20 states: "No motion for summary judgment or to strike the evidence shall be sustained when based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the action shall agree that such deposition may be so used." See also Code § 8.01-420. We have held that Rule 3:20 and Code § 8.01-420 "impose a very specific condition; namely, the parties must agree to the use of depositions before they may serve as a basis in whole, or in part, for the entry of summary judgment. This condition requires some showing of acquiescence in the use of a deposition." Gay v. Norfolk & W. Ry. Co., 253 Va. 212, 214, 483 S.E.2d 216, 218 (1997). Whether a trial court's actions conflict with the procedural requirements set forth in a rule of this Court or a statute is a question of law that is reviewed de novo. See Collins v. Shepherd, 274 Va. 390, 397, 649 S.E.2d 672, 675 (2007).

Lloyd argues in assignment of error 1 that the trial court erred in using his expert's discovery deposition to disqualify the expert and to then grant summary judgment based on the disqualification. Although Dr. Kime did not offer deposition testimony in support of his motion for summary judgment, he did offer it in a manner that was "functionally a motion for summary judgment." Gay, 253 Va. at 214 n.*, 483 S.E.2d at 218 n.* (holding that regardless of the label, defendant's motion to dismiss for lack of subject matter jurisdiction "was functionally a motion for summary judgment and subject to Rule 3:18 [now 3:20] and Code § 8.01-420"). We have held that Rule 3:20 and Code § 8.01-420 apply when a defendant files a motion in limine seeking the exclusion of the plaintiff's expert testimony, and the court's ruling excluding the testimony is followed by the defendant's motion for summary judgment predicated upon the exclusion. Parker v. Elco Elevator Corp., 250 Va. 278, 281 n. 2, 462 S.E.2d 98, 100 n. 2 (1995). In such a case, the motion in limine is functionally a motion for summary judgment. Rule 3:20 and Code § 8.01-420 therefore apply to Dr. Kime's motion to exclude Dr. Corkill's testimony in this case....