Smith v. Irving

Citation604 S.E.2d 62,268 Va. 496
Decision Date05 November 2004
Docket NumberRecord No. 040349.
PartiesMarie M. SMITH, Executor of the Estate of Michael R. Smith v. Declan IRVING, M.D., et al.
CourtSupreme Court of Virginia

604 S.E.2d 62
268 Va. 496

Marie M. SMITH, Executor of the Estate of Michael R. Smith
v.
Declan IRVING, M.D., et al

Record No. 040349.

Supreme Court of Virginia.

November 5, 2004.


604 S.E.2d 63
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

604 S.E.2d 64
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:

Q: Can you explain to us what the surgery was that you performed using [a diagram displayed in court]?
A: The surgery consists of stapling right across the stomach with a device that has four rows of staples. And what you have to do is get across the top of the stomach and leave a little area here that's roughly the size of a shot glass.... What we do is divide this roughly, I think it's about 18 inches on average, but 45 centimeters from here to here. You divide that, then we bring this part all the way up here to the stomach. What happens now is the food comes into the stomach. It's a very small, tiny stomach, quickly fills up and empties fairly slowly into this loop and it is moved with the rest of the colonic contents. It allows only very, very small
...

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13 cases
  • Thierfelder v. Wolfert
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 28, 2012
    ...113 S.W.3d 715, 722–23 (Tenn.2003) (construing “same or similar community” in Tenn.Code Ann. § 29–26–115(a) (1975)); Smith v. Irving, 268 Va. 496, 604 S.E.2d 62, 65 (2004) (construing statewide standard of care expressed in Va.Code. § 8.01–581.20 (1992)); Bauer v. White, 95 Wash.App. 663, 9......
  • Bista v. Commonwealth
    • United States
    • Court of Appeals of Virginia
    • December 6, 2022
    ..."In this Commonwealth, the cross-examination of a witness is limited to matters elicited on direct examination." Smith v. Irving , 268 Va. 496, 501, 604 S.E.2d 62 (2004). Indeed, the majority's silence suggests a defendant must conduct cross-examination far beyond what the Commonwealth elic......
  • Bista v. Commonwealth
    • United States
    • Court of Appeals of Virginia
    • December 6, 2022
    ...... incident, and Rothe recounted R.P.'s disclosures. . .          Mimi. Smith, a senior forensic analyst with the Virginia Department. of Forensic Science, was qualified as an expert in. "forensic biology and DNA ..."In this Commonwealth, the. cross-examination of a witness is limited to matters elicited. on direct examination." Smith v. Irving , 268. Va. 496, 501 (2004). Indeed, the majority's silence. suggests a defendant must conduct cross-examination far. beyond what ......
  • Bista v. Commonwealth
    • United States
    • Court of Appeals of Virginia
    • December 6, 2022
    ...... incident, and Rothe recounted R.P.'s disclosures. . .          Mimi. Smith, a senior forensic analyst with the Virginia Department. of Forensic Science, was qualified as an expert in. "forensic biology and DNA ..."In this Commonwealth, the. cross-examination of a witness is limited to matters elicited. on direct examination." Smith v. Irving , 268. Va. 496, 501 (2004). Indeed, the majority's silence. suggests a defendant must conduct cross-examination far. beyond what ......
  • Request a trial to view additional results

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