Perdieu v. Blackstone Family Practice

• Decision Date: 13 September 2002
• Docket Number: Record No. 012008.
• Citation: 568 S.E.2d 703,264 Va. 408
• Court: Virginia Supreme Court
• Parties: Horace E. PERDIEU, as Administrator of the Estate of Lucille P. Overton, Deceased, v. BLACKSTONE FAMILY PRACTICE CENTER, INC., et al.

568 S.E.2d 703

264 Va. 408

Horace E. PERDIEU, as Administrator of the Estate of Lucille P. Overton, Deceased, v. BLACKSTONE FAMILY PRACTICE CENTER, INC., et al.

Record No. 012008.

Supreme Court of Virginia.

September 13, 2002.

B.G. Stephenson, Fairfax, for appellant.

Lisa Kent Duley, Alexandria; Kelvin L. Newsome (S. Elizabeth Pharr; Denton & Fiscella; LeClair Ryan, Richmond, on briefs), for appellees Blackstone Family Practice Center, Inc., Charles I. Rosenbaum, M.D., and HCMF Corporation, t/a Heritage Hall Health Care.

No brief or argument for appellee Josephine Fowler, M.D.

Present: All the Justices.

LEMONS, Justice.

In this appeal, we consider whether the trial court erred in refusing to qualify three of the plaintiff's proposed expert witnesses. We further consider whether the trial court erred in granting the defendants' motions to strike at the conclusion of the plaintiff's casein-chief when the plaintiff did not present essential expert testimony.

I. Facts and Proceedings Below

According to well-settled principles of appellate review, when the evidence has been struck at the conclusion of the plaintiff's case-in-chief, we will recite the facts in the light most favorable to the plaintiff. Bryan v. Burt, 254 Va. 28, 30-31, 486 S.E.2d 536, 537 (1997).

On January 4, 1995, Lucille P. Overton ("Overton") was admitted as a patient to Heritage Hall Health Care ("Heritage Hall"), a nursing home facility in Blackstone, Virginia. Upon her admission, she entered into an agreement entitled "Heritage Hall Admission Agreement" (the "contract"), in which HCMF Corporation ("HCMF"), t/a Heritage Hall Health Care, agreed to provide Overton with such care as her condition reasonably required. Overton had a history of "mental confusion, dementia and disorientation." Charles I. Rosenbaum, M.D. ("Dr.Rosenbaum") and Blackstone Family Practice Center, Inc. ("BFPC") were listed on Overton's chart as her medical care providers. The Heritage Hall staff performed an evaluation of Overton's condition and needs upon her arrival to the facility, which indicated that Overton was "ambulatory only with assistance, was confused, and only sometimes oriented to place and time." As a result of the evaluation, the Heritage Hall staff categorized Overton as subject to a high risk for falls.

On January 20, 1995, Overton fell from her bed onto the floor of her room. A member of the staff at Heritage Hall contacted BFPC and Dr. Rosenbaum to inform them of Overton's fall. Overton was then examined by Dr. Josephine R. Fowler ("Dr.Fowler"), a resident physician in training at the Medical College of Virginia/Virginia Commonwealth University, who was conducting a family practice rotation under the supervision of BFPC. Dr. Fowler did not diagnose any injuries resulting from Overton's fall.

The next day, January 21, 1995, Overton fell again, this time in the dining room at Heritage Hall. Again, Dr. Fowler examined Overton and did not diagnose any injury resulting from the fall.

After the second fall, Overton's physical and psychological condition "severely deteriorated." Overton's son, Horace E. Perdieu ("Perdieu"), visited her on January 30 or 31, 1995, observed her condition, and requested medical attention for his mother from the Heritage Hall staff. The staff notified BFPC, and as a result Overton was examined by Dr. George P. Damewood ("Dr.Damewood"), another resident physician associated with BFPC. During a physical examination, Dr. Damewood determined that Overton appeared to have sustained a hip fracture and he ordered x-rays of Overton's hip. Dr. Rosenbaum viewed the x-rays and confirmed the hip fracture and Dr. Barry W. Burkhardt ("Dr.Burkhardt") subsequently performed surgery on Overton to replace her fractured hip with a prosthesis.

On April 30, 1999, Overton filed a four-count motion for judgment against BFPC, Dr. Rosenbaum, and HCMF, seeking one million dollars in "compensatory and exemplary damages." In Count I, Overton alleged that HCMF breached its contract with her when it failed to provide her with reasonable care, failed to direct the development of a suitable care plan related to her personal health needs, and failed to protect her with adequate safety measures.

In Count II, Overton alleged that BFPC and Dr. Rosenbaum committed medical malpractice because Dr. Rosenbaum failed to personally examine Overton and allowed her to be examined by Dr. Fowler, a "completely unsupervised" resident physician. Overton further alleged that BFPC and Dr. Rosenbaum failed to properly "examine, diagnose, and treat" her, in violation of the applicable standard of reasonable care, and failed to implement adequate safety measures to prevent her from falling.

In Count III, Overton alleged that all three defendants engaged in "negligent and careless acts and omissions" when they failed to "properly attend, restrain, assist, examine, diagnose and treat" her. She further alleged that the three defendants "negligently failed to supervise their employees."

Finally, in Count IV, Overton alleged that HCMF violated Code § 32.1-138, which enumerates certain requirements for nursing homes in Virginia, and that HCMF, Dr. Rosenbaum, and BFPC violated 42 U.S.C. § 1395i-3, which provides requirements for "skilled nursing facilities."

Overton died of unrelated causes on October 16, 1999, and Perdieu qualified as the administrator of her estate. On March 7, 2000, Perdieu, as Administrator of the Estate of Lucille P. Overton, was substituted as the plaintiff in the case. Prior to trial, Perdieu designated eight experts, including the three at issue in this appeal: Dr. John O. Martin ("Dr.Martin"), Dr. Reinald Leidelmeyer ("Dr.Leidelmeyer"), and Phylis Corrigan, R.N. ("Corrigan"). Dr. Martin proposed to testify that the lack of a suitable care plan and safety measures in place to prevent Overton's falls violated the appropriate standard of care. He would have opined that this failure directly and proximately caused Overton's physical injury and continued pain and suffering.

Dr. Leidelmeyer was designated to testify about the same matters as Dr. Martin, and was further designated to testify that Overton's medical records, including the records of Dr. Fowler's examinations, were "not sufficiently detailed." As a result of Dr. Fowler's "grossly inadequate records" and her failure to report the falls, as required, Dr. Leidelmeyer would have testified that it took approximately ten or more days to diagnose Overton's hip fracture. Dr. Leidelmeyer would also have testified that Dr. Rosenbaum's conduct, in failing to consult with Dr. Fowler, "consitute[d] a serious aberration of accepted standards and protocol of resident physician training programs."

Corrigan was designated to testify "as to the standard of care which [Overton] should have received" from HCMF. Corrigan would have opined that proper care, which was "reasonably necessary to prevent the falls and resulting injury" sustained by Overton, was not provided. Corrigan would further have testified that a patient-specific care plan should have been instituted immediately upon Overton's admission to Heritage Hall.

Dr. Rosenbaum and BFPC filed motions in limine to exclude the testimony of Dr. Leidelmeyer and Dr. Martin. HCMF filed a similar motion in limine to exclude the testimony of Dr. Martin and Corrigan. On the day before trial, the court heard arguments on the motions to exclude the various expert witnesses. The court first considered the qualifications of Dr. Leidelmeyer and viewed a videotape of his deposition. Dr. Leidelmeyer testified that he had served as the head of the emergency department of medicine at Fairfax Hospital in Fairfax, Virginia, from approximately 1961 until 1982. While at Fairfax Hospital, Dr. Leidelmeyer was in a "supervisory capacity over all the physicians," including interns and residents in training. After leaving that position, he "opened a walk-in clinic for primary care," and operated the clinic for "[a]bout ten years," until approximately 1992. Dr. Leidelmeyer testified that after leaving his employment with the "walk-in clinic," he worked approximately one day per week for a private family practice clinic owned by two doctors who had previously worked for him at Fairfax Hospital. He held this employment until 1998. Dr. Leidelmeyer testified that from 1990 until 2001, he also worked approximately one day per week at the Fairfax County Health Department ("Health Department"), where he performed pre-employment physicals and interpreted tuberculosis tests. He testified that he did not diagnose or treat fractures, nor did he treat nursing home patients, while working at the Health Department.

BFPC and Dr. Rosenbaum argued that Dr. Leidelmeyer did not satisfy the requirements of Code § 8.01-581.20 because his part-time employment at the Health Department did not qualify as an "active clinical practice," as required by the statute. They argued that Dr. Leidelmeyer "was not treating patients therefore he was not actually a clinician at that point." Furthermore, BFPC and Dr. Rosenbaum maintained that Dr. Leidelmeyer did not practice in the same specialty as Dr. Rosenbaum, who was a family practice physician. They argued that Dr. Leidelmeyer was not diagnosing and treating fractures, was not treating nursing home patients, and was not supervising interns or residents within a year of the alleged malpractice, which occurred in 1995. Accordingly, BFPC and Dr. Rosenbaum maintained that Dr. Leidelmeyer could not qualify as an expert pursuant to Code § 8.01-581.20.

Perdieu argued that Dr. Leidelmeyer satisfied the requirements of Code § 8.01-581.20. He emphasized Dr. Leidelmeyer's testimony "that he's been engaged in the clinical practice of primary care which treats all members of the family." Perdieu argued that the statute did not address how many work days each week were required to constitute a "clinical practice," and he maintained that Dr. Leidelmeyer's...