Smith v. Irving
| Decision Date | 05 November 2004 |
| Docket Number | Record No. 040349. |
| Citation | 604 S.E.2d 62,268 Va. 496 |
| Parties | Marie M. SMITH, Executor of the Estate of Michael R. Smith v. Declan IRVING, M.D., et al. |
| Court | Virginia Supreme Court |
John M. Flora (Epstein, Sandler & Flora, on brief), Harrisonburg, for appellant.
Amici Curiae: The Virginia Trial Lawyers Association (Thomas W. Williamson, Jr.; Joshua D. Silverman; Williamson & Lavecchia, on brief), in support of appellant.
Amici Curiae: The Medical Society of Virginia (W. Scott Johnson; John B. Mumford, Jr.; Molly August; Hancock, Daniel, Johnson & Nagle, on brief), Glen Allen, in support of appellees.
Present: HASSELL, C.J., LACY, KEENAN, KOONTZ, LEMONS, and AGEE, JJ., and CARRICO, S.J.
OPINION BY Justice BARBARA MILANO KEENAN.
In this appeal of a judgment in favor of a defendant physician in a medical malpractice action, we consider whether the circuit court abused its discretion in refusing to permit the plaintiff to cross-examine the defendant regarding "standard of care" issues.
We will state the evidence in the light most favorable to the defendant, Declan Irving, M.D., the prevailing party in the circuit court. See City of Richmond v. Holt, 264 Va. 101, 103, 563 S.E.2d 690, 691 (2002); Tashman v. Gibbs, 263 Va. 65, 68, 556 S.E.2d 772, 774 (2002). Dr. Irving is a general surgeon whose practice includes treating obese patients by performing gastric bypass surgery to help them lose weight. In January 1999, Dr. Irving evaluated the plaintiff's decedent, Michael R. Smith, for this purpose and ordered gastric bypass surgery to reduce the size of his stomach.
Dr. Irving performed the surgery in February 1999. After the surgery, Dr. Irving and other physicians conducted several tests to ensure that the surgery was successful and that the decedent's gastrointestinal tract was not leaking its contents. The tests did not reveal a leak, and the decedent's condition improved over the next few days.
One week after the surgery, the decedent's stomach unexpectedly perforated at the location where it had been surgically "closed off." The contents of the decedent's stomach escaped into his abdominal cavity, causing a condition known as peritonitis. After surviving surgery to repair his ruptured stomach, the decedent died from complications related to the peritonitis.
Marie M. Smith, executor of Michael R. Smith's estate, filed a wrongful death action against Dr. Irving and his professional corporation, Coastal Surgical Associates, Inc., alleging that Michael Smith died as a result of Dr. Irving's negligent medical treatment. Smith alleged that Dr. Irving was negligent in the manner that he conducted the gastric bypass procedure, in failing to identify and properly treat the symptoms of a gastric leak, and in delaying corrective surgery.
At trial, Smith and Irving each presented the testimony of two general surgeons who qualified as expert witnesses and testified about the applicable standard of care for the performance of gastric bypass surgery and the postoperative management of surgical patients undergoing this procedure. Dr. Irving was not designated as an expert witness by either party, but testified in his own defense about his treatment and care of the decedent.
On direct examination, Dr. Irving testified regarding the general procedures involved in gastric bypass surgery:
In response to his counsel's questions, Dr. Irving explained the techniques usually employed by physicians performing this type of surgery, and the actions he took during the course of the decedent's surgery:
Dr. Irving also referred to his experience and knowledge when testifying about his treatment decisions:
On cross-examination, Smith's counsel questioned Dr. Irving about his training and knowledge of postoperative procedures:
Defense counsel objected to this last question on the ground that Dr. Irving had "not been designated as an expert witness...
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