Rosen v. Greifenberger, Record No. 980371.

• Decision Date: 26 February 1999
• Docket Number: Record No. 980371.
• Parties: Leonard A. ROSEN, M.D., et al. v. Darlene GREIFENBERGER.
• Court: Virginia Supreme Court

513 S.E.2d 861

257 Va. 373

Leonard A. ROSEN, M.D., et al. v. Darlene GREIFENBERGER.

Record No. 980371.

Supreme Court of Virginia.

February 26, 1999.

Judith B. Henry, Richmond (John A. Blazer, Fairfax; Robin M. Vogel, Richmond; Crews & Hancock, on briefs), for appellants.

Theodore H. Amshoff, Jr. (Helen M. Donovan; Amshoff, Donovan & Smith, on brief), for appellee.

Present: All the Justices.

KOONTZ, Justice.

In this medical malpractice suit, we consider whether the trial court erred in giving a jury instruction on a physician's duty to continue his services as long as they are necessary where the evidence shows that another physician within the treating physician's group practice had been advised that the patient might need additional care during the treating physician's temporary absence.

BACKGROUND

"According to settled principles of appellate review, we will consider the evidence in the light most favorable to the plaintiff, who comes to this Court armed with a jury verdict approved by the trial judge." Salih v. Lane, 244 Va. 436, 438, 423 S.E.2d 192, 194 (1992). The parties dispute much of the evidence, including that relevant to the alleged primary negligence of the treating physician. However, because we awarded an appeal limited to the issue of whether a particular jury instruction was proper, we will recount only those facts relevant to our resolution of that issue. Jeld-Wen, Inc. v. Gamble, 256 Va. 144, 146, 501 S.E.2d 393, 395 (1998).

Darlene Greifenberger first became a patient of Fairfax Ob-Gyn Associates, P.C. (the group practice) in 1988. The group practice, a Virginia professional corporation, is owned by and operates the medical practice of three physicians: Felicia L. Donald, M.D., Leonard A. Rosen, M.D., and Robert L. Castle, M.D. In 1988 and 1989, Greifenberger was treated by all three members of the group practice in relation to her pregnancy and the successful delivery of her second child. Dr. Donald was Greifenberger's primary treating physician at that time, but Dr. Rosen treated Greifenberger during some obstetrical visits, and Dr. Castle delivered the child and administered Greifenberger's post-partum care.

Greifenberger continued as a patient of the group practice after this pregnancy, and on occasion received treatment from each of the three physicians. In April 1992, Greifenberger requested that a Norplant contraceptive device be implanted. Dr. Donald performed the necessary procedure and later treated Greifenberger when she complained of complications from the implant. Because of dissatisfaction with Dr. Donald's treatment, Greifenberger requested that she no longer receive treatment from Dr. Donald.¹

On September 17, 1992, Greifenberger contacted the group practice and advised a nurse there that she believed she was pregnant and that she was considering terminating the pregnancy. Dr. Rosen saw Greifenberger in the group practice's office that afternoon. A pregnancy test confirmed that Greifenberger was pregnant. Based upon her report of the date of her last menstrual cycle, Dr. Rosen estimated that the pregnancy was in the seventh or eighth week of the first trimester. After discussing the options for continuation or termination of the pregnancy with Dr. Rosen, including the recommendation of the manufacturer of the contraceptive device that it be removed if the pregnancy were continued, Greifenberger indicated that she wished to terminate the pregnancy through a therapeutic abortion. The next day she completed the necessary consent document and other paperwork required to schedule the abortion procedure.

On September 22, 1992, Greifenberger was admitted to Fair Oaks Hospital as an outpatient under the care of Dr. Rosen to terminate her pregnancy. After a general anesthetic had been administered, but before the abortion procedure had been started, Dr. Rosen determined from an assessment of uterine size that the pregnancy was more advanced than he had previously thought, estimating that it was in the twelfth to fourteenth week of the first trimester. Because Greifenberger had been unequivocal in stating her desire to terminate the pregnancy and because the dilation and evacuation procedure Dr. Rosen intended to perform is medically appropriate to terminate a late first trimester pregnancy, Dr. Rosen decided to go forward with the procedure.

During the procedure, however, Dr. Rosen determined that the pregnancy had advanced beyond the fourteenth week. Because a dilation and evacuation procedure is not medically appropriate to terminate a more advanced pregnancy, Dr. Rosen discontinued the procedure after approximately ten minutes. Knowing that the procedure was incomplete, Dr. Rosen elected to send Greifenberger "home with a medication called Methargen to cause further medical uterine contractility to further expel whatever remaining products of conception were left behind" in the uterus. He also prescribed a "broad spectrum antibiotic in the form of Keflex" to protect her from infection.

Dr. Rosen then contacted Greifenberger's husband in the hospital waiting room and told him that "the operation went okay, that there [were] no problems." Dr. Rosen further told Greifenberger's husband that Greifenberger "would pass a small amount, a very small amount of tissue ... that she might bleed ... a little heavier than her normal menstrual cycle." Dr. Rosen did not specifically advise Greifenberger's husband that the abortion procedure was incomplete.

Greifenberger was instructed by a hospital discharge nurse to take additional doses of the antibiotics and Methargen and to use a prescription pain medication as needed. She was further instructed by the nurse to make an appointment with Dr. Rosen in one week and to "notify your doctor if you have heavy vaginal bleeding, severe abdominal pain or fever." Greifenberger was discharged from the hospital without having been informed that the abortion procedure was incomplete. Although Dr. Rosen gave her medication intended to induce uterine contractions and a spontaneous abortion to expel the remaining fetal tissue, he did not inform Greifenberger that he would be temporarily unavailable to treat her or that, if necessary, Dr. Castle would be treating her during Dr. Rosen's absence.

Dr. Rosen was scheduled to attend a medical conference in Chicago on the day following Greifenberger's surgery and was to leave that evening. Before leaving the hospital, Dr. Rosen contacted Dr. Castle, the only member of the group practice who would be available for patient consultation and treatment that night and for the next several days, and informed him that Greifenberger's pregnancy had been more advanced than had been first thought. Dr. Rosen further advised Dr. Castle "to expect a call" because "products of conception" had been left in the uterus and that Greifenberger had been sent home with antibiotics, pain medication, and the medication to cause uterine contractions to expel the remaining tissue.

In the early morning hours of September 24, 1992, Greifenberger contacted Dr. Castle complaining of "cramping" and "slight bleeding." Dr. Castle was "expecting" the cramping because of the medication given to Greifenberger and advised her to take the prescribed pain medication and come to the group practice's office the next day. Several hours later, her husband took Greifenberger to the emergency room. At that time she was in significant pain and had a temperature of 101. Dr. Castle was called to the hospital and performed surgery...