Powell v. Margileth

• Decision Date: 14 January 2000
• Docket Number: Record No. 990319.
• Citation: 259 Va. 244,524 S.E.2d 434
• Parties: Mary Estella POWELL, Executrix of the Estate of William G. Powell, Jr., Deceased v. Andrew MARGILETH, M.D.
• Court: Virginia Supreme Court

524 S.E.2d 434

259 Va. 244

Mary Estella POWELL, Executrix of the Estate of William G. Powell, Jr., Deceased v. Andrew MARGILETH, M.D.

Record No. 990319.

Supreme Court of Virginia.

January 14, 2000.

Richard R. Nageotte (Yvette J. Nageotte; Nageotte, Nageotte & Nageotte, on brief), Stafford, for appellant.

Judith B. Henry (Richard L. Nagle; Crews & Hancock, on brief), Richmond, for appellee.

Present: CARRICO, CI., COMPTON, LACY, HASSELL, KEENAN, KOONTZ, JJ., and POFF, Senior Justice.

POFF, Senior Justice.

This litigation commenced in January 1994 when William G. Powell, Jr., (Powell) filed a motion for judgment against Dr. C.R. Massey, III, and Dr. Andrew Margileth alleging medical malpractice. Following Powell's death in 1995, his widow, Mary Estella Powell, qualified as executrix of his estate, and the trial court converted the case into a wrongful death action.

At the first trial of the case, the executrix non-suited Dr. Margileth, and the jury returned its verdict in favor of Dr. Massey. In April 1996, the executrix filed a motion for judgment against Dr. Margileth alleging that his misdiagnosis and treatment of his patient caused Powell's death from cancer-related pneumonia. At the second trial conducted in June 1998, the trial court granted the defendant's motion to strike the plaintiff's evidence, and we awarded the plaintiff an appeal from the judgment entered on that ruling.

We will review the chronology of the facts in evidence related to questions presented by the plaintiffs assignment of error.

On January 9, 1992, Dr. Massey, a specialist in otolaryngology, measured a node in Powell's neck as 4 cm × 3 cm and ordered a CT scan. As interpreted by a radiologist, the scan conducted January 11, 1992 indicated that the size of the "left cervical mass ... is due to an enlarged internal jugular node which most likely is an abscess.. .."

On January 14, 1992, Dr. Massey aspirated fluid from the enlarged node. Although he discussed the CT scan with Powell and ordered cultures, he did not suggest a need for an examination to rule out cancer.

Because Powell had told him that he had experienced some exposure to cats, Dr. Massey referred Powell on January 21, 1992 to Dr. Margileth, an infectious disease specialist experienced in the diagnosis and treatment of cat scratch disease. On January 27, 1992, Dr. Margileth performed tests for tuberculosis and cat scratch disease and measured the "swelling in the left anterior superior neck" as 4.4 × 6 × 2.6 cm. He advised his patient that he had cat scratch disease and prescribed antibiotics. The results of the CT scan had been furnished to Dr. Margileth.

On February 18, 1992, Dr. Massey palpated a nodule in Powell's neck which measured 4 × 2.8 cm. Dr. Massey performed another examination on April 7, 1992 in the course of which he suggested the possibility of cancer.

In June 1992, Powell discovered a second lump in his neck and in July went for help to the Veterans Administration Medical Center Hospital. A needle aspiration of the two lumps diagnosed cancer representing a progression from stage III in January 1992 when the CT scan was conducted to stage IV in July 1992. Powell underwent radiation therapy, surgery, and other treatment but died of cancer three years later at the age of 40.

In the case of a wrongful death resulting from medical malpractice, the plaintiff must prove a breach of the standard of care and a proximate causal relationship between that breach and the injury alleged. Griffett v. Ryan, 247 Va. 465, 470, 443 S.E.2d 149, 151 (1994); see also St. George v. Pariser, 253 Va. 329, 484 S.E.2d 888 (1997)

; Blondel v. Hays, 241 Va. 467, 403 S.E.2d 340 (1991).

When ruling on a defendant's motion to strike the plaintiffs evidence, the trial court must draw all reasonable inferences the evidence may raise in favor of the plaintiff. Hadeed v. Medic-24 Ltd., 237 Va. 277, 285-86, 377 S.E.2d 589, 593 (1989). If it appears from the record that such inferences are reasonable, then the issues concerning standards of care and proximate cause are questions of fact to be determined by a jury.

In a memorandum opinion dated October 6, 1998 explaining its decision to grant the defendant's motion to strike the plaintiffs evidence, the trial court held that "there is no evidence or reasonable inference that would...