Pettus v. Gottfried, Record No. 040915.

Citation606 S.E.2d 819,269 Va. 69
Decision Date14 January 2005
Docket NumberRecord No. 040915.
CourtSupreme Court of Virginia
PartiesPamela K. PETTUS, Executor of the Estate of Reginald H. Pettus, Deceased v. Irving S. GOTTFRIED, M.D., P.C., et al.

Craig B. Davis (William B. Kilduff; Emroch & Kilduff, on briefs), Richmond, for appellant.

Mary L. McGinnis (Brewster S. Rawls, Richmond; Rawls & McGinnis, on brief), for appellees.

Amicus Curiae: The Virginia Trial Lawyers Association (John E. Davidson; Davidson & Kitzmann, on brief), in support of appellant.

Present: All the Justices.

KEENAN, Justice.

In this appeal, we consider whether the circuit court erred in permitting the defendants to introduce into evidence certain deposition testimony of the decedent's treating physicians.

On March 17, 2000, plaintiff's decedent, Reginald H. Pettus, arrived at Southside Community Hospital (the hospital) in Farmville complaining of chest pain. Dr. Robert B. Evans, an emergency room physician, treated Pettus on his arrival. Dr. Evans administered oxygen to Pettus, gave him nitroglycerin, and ordered several tests, including an electrocardiogram (EKG). Dr. Evans reviewed the EKG results, which showed an "atrial flutter" that was not present on an EKG taken a year earlier. Uncertain whether Pettus should be admitted to the hospital, Dr. Evans called Dr. Irving S. Gottfried, who previously had treated Pettus, and requested that Dr. Gottfried examine him.

Dr. Gottfried is a gastroenterologist who, one year before the events at issue, had reviewed an EKG performed on Pettus. When called to the hospital by Dr. Evans, Dr. Gottfried examined Pettus, evaluated the EKG ordered by Dr. Evans, and released Pettus with orders to return for a "follow up" appointment on March 20, 2000.

On March 20, 2000, Dr. Girish Purohit, a cardiologist, admitted Pettus to the hospital. Pettus was not experiencing chest pain at the time of his admission. He stayed in the hospital overnight and received an echocardiogram the next morning.

Later that morning, Pettus became restless and began "wheezing." Dr. Purohit altered Pettus's medications and ordered a neurology consultation to evaluate Pettus's mental status. A few hours later, Pettus had a seizure, stopped breathing, and ultimately died.

Pamela K. Pettus (the plaintiff), filed a wrongful death action against Dr. Gottfried and his professional corporation, and certain other defendants,1 alleging that Pettus died as a result of negligent medical treatment he received at the hospital. The plaintiff contended that Dr. Gottfried incorrectly diagnosed Pettus's chest pain and negligently discharged him from the hospital at the time of an impending myocardial infarction, or heart attack. Dr. Gottfried filed grounds of defense, in which he stated that he complied with the applicable standard of care and denied that his conduct caused Pettus's death.

At trial, the plaintiff presented evidence from two physicians who qualified as expert witnesses and testified before the jury. The plaintiff also read into evidence portions of the discovery depositions of Drs. Evans, Purohit, and Gottfried.2

Before the defendants presented their case, the plaintiff asked the circuit court to exclude portions of the deposition testimony that Dr. Gottfried had designated for introduction into evidence. The plaintiff objected to the admission of the following testimony by Dr. Purohit:3

Q: And it was your opinion that that was a central nervous system event?
A: It could have been, yes.
Q: Do you have an opinion within the reasonable degree of medical certainty what the cause of Mr. Pettus' death was?
A: No. In fact, that's the reason why many times we feel that unless an autopsy is done, it's really difficult to know what may have happened.

The plaintiff argued that this deposition testimony was inadmissible because it was speculative and contained expert opinion testimony that was not stated to a reasonable degree of medical probability. The circuit court overruled the plaintiff's objection, and allowed Dr. Gottfried to read the above testimony to the jury.

The plaintiff also objected to several portions of Dr. Evans's deposition that Dr. Gottfried intended to introduce into evidence.4 The plaintiff objected to the following exchange:

Q: Do you know whether or not Mr. Pettus was still experiencing chest pain at the time of discharge?
A: I know my nurses, and I'm pretty sure that if he had had chest pain, it would have been brought to either my attention or Dr. Gottfried [sic] attention.
....
Q: Prior to Dr. Gottfried getting to the hospital, had you formed any intention of trying to have Mr. Pettus admitted or running further tests?
A: I felt like he could probably go either way, but it would be best to be evaluated by a person who knew him.
Q: Going either way being what?
A: Possibly an admission, depending on what Dr. Gottfried knew about him versus going home for outpatient follow-up.

The plaintiff argued that the testimony was speculative, and also contended that the documentation provision of Code § 8.01-399(B) barred its admission. The circuit court overruled the plaintiff's objection, concluding that the testimony was a "complete statement" of Dr. Evans's actions and served to explain matters that were already in evidence.

Dr. Gottfried read all the contested portions of deposition testimony to the jury, and he also testified in his own defense. The jury returned a verdict in favor of Dr. Gottfried and his professional corporation, and the circuit court entered final judgment in accordance with the jury verdict. The plaintiff appeals.

The plaintiff argues that the circuit court erred in admitting into evidence the above-referenced portions of Dr. Purohit's deposition because they were expert opinions that were not stated to a reasonable degree of medical probability. The plaintiff argues that the testimony therefore was speculative, and she further asserts that the testimony failed to meet the provisions of Code § 8.01-399(B) relating to documentation.

The plaintiff also contends that the circuit court erred in admitting the above-referenced segments of Dr. Evans's deposition testimony. The plaintiff argues that Dr. Evans's testimony, that his nurses would have noted any complaint of pain made by Pettus at the time he was discharged, was speculative because Dr. Evans did not have any personal knowledge concerning the nurses' actions. The plaintiff also maintains that the circuit court erred in admitting Dr. Evans's testimony whether he intended to have Pettus admitted to the hospital. She alleges that this testimony was inadmissible because it was speculative and was not supported by documentation in Pettus's medical records.

In response, Dr. Gottfried argues that the plaintiff waived her objection to the admissibility of Dr. Purohit's and Dr. Evans's testimony because she offered testimony of the same character in her case-in-chief. Dr. Gottfried asserts that the plaintiff introduced portions of Dr. Purohit's deposition testimony expressing an opinion concerning the cause of Pettus's death that were not stated to a reasonable degree of medical probability, including the following testimony:

Q: And what is the significance of myocardial ischemia if in fact the patient had myocardial ischemia?
A: It just means that there are changes in the electrocardiogram which may reflect that the heart muscle may not be getting enough blood, and therefore, oxygen.
Q: And one of the causes of not getting enough blood could be —
A: Coronary artery disease, yes.
....
Q: And that's the atrial flutter?
A: Yes. All these things are written here in the same order, so the reading was atrial flutter and that there are some changes that are subtle, but they do suggest that there may have been a heart attack affecting the inferior wall or the bottom part of the heart.

Regarding Dr. Evans's testimony, Dr. Gottfried asserts that because Dr. Evans's duties included evaluating whether a patient required admission to the hospital, Dr. Evans's deposition testimony on this subject was admissible. Dr. Gottfried also argues that because the plaintiff introduced portions of Dr. Evans's testimony that were not documented in the medical record, the plaintiff has waived her objection to the disputed portions of Dr. Evans's testimony. Dr. Gottfried points to the following exchanges, among others, to illustrate his contention that the plaintiff introduced evidence of the same character as the evidence that she now challenges.

Q: Given nitroglycerine. Does that say with little improvement?
A. Times one with a little improvement.
Q: What significan[ce], if any, did that have for you in making a differential diagnosis?
A: Well, one would expect, although nothing in medicine is absolute, that nitroglycerine would improve cardiac chest pain.
....
Q: Shortness of breath?
A: Uh-huh (yes).
Q: That would be consistent also with a cardiac problem?
A: It could.
....
Q: And what was your interpretation of the EKG?
A: That he was in a flutter pattern, had perhaps some ischemic changes to his EKG.
Q: And where were the ischemic changes located on the EKG?
A: V1, V2, V3, little bit of V4 and V5.
Q: And what was the significance to you of the ischemic changes in those areas?
A: Well, it could certainly be an indication that something cardiac was going on.

Dr. Gottfried also argues that the evidence he introduced from Dr. Purohit's and Dr. Evans's depositions complied with the requirements of Code § 8.01-399(B). Dr. Gottfried asserts that both doctors testified as Pettus's treating physicians rather than as expert witnesses and did not discuss a diagnosis. Thus, Dr. Gottfried contends that their testimony was not required to meet the standard of a reasonable degree of medical probability. Dr. Gottfried also maintains that both doctors' testimony was limited to the facts surrounding their treatment of Pettus, that these facts were consistent with the medical records and, thus, that the...

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  • Com. v. Bakke
    • United States
    • Supreme Court of Virginia
    • September 27, 2005
    ...an expert opinion is merely speculative if not stated to a reasonable degree of medical probability. Pettus v. Gottfried, 269 Va. 69, 78, 606 S.E.2d 819, 825 (2005). Finally, though not binding upon the commission, "we have said in a number of cases that great weight should be given to the ......
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