Summers v. Syptak

• Decision Date: 20 July 2017
• Docket Number: Record No. 160377
• Citation: 801 S.E.2d 422
• Court: Virginia Supreme Court
• Parties: Alexia SUMMERS v. J. Michael SYPTAK, et al.

293 Va. 606

801 S.E.2d 422

Alexia SUMMERS

v.J. Michael SYPTAK, et al.

Record No. 160377

Supreme Court of Virginia.

July 20, 2017

John B. Simpson (MartinWren, on briefs), for appellant.

Powell M. Leitch, III (Joseph M. Rainsbury ; LeClairRyan, on brief), Roanoke, for appellees.

PRESENT: Lemons, C.J., Goodwyn, McClanahan, Powell, Kelsey, and McCullough, JJ., and Millette, S.J.

OPINION BY JUSTICE STEPHEN R. McCULLOUGH

Alexia Summers appeals from the dismissal with prejudice of her medical malpractice action. In her complaint, she alleged that Dr. J. Michael Syptak, a physician with Harrisonburg Family Practice Associates, P.C., knew or should have known about certain conditions afflicting her. These conditions are described in the medical records of her earlier treatment by that practice. She alleged that, while treating her, Dr. Syptak made "unsolicited, unwanted, inappropriate, and highly offensive sexual comments, ‘jokes,’ and sexual innuendo" and that these statements caused her preexisting conditions to worsen. On this appeal she focuses her arguments on the contention that the circuit court erred in holding on summary judgment that a plaintiff must proffer an expert who can testify concerning what medical records a physician is required to consult under the standard of care and what statements a physician can make to a patient. Although Dr. Syptak contests the plaintiff's arguments on these points, he offers an alternative ground for affirmance: that the plaintiff's failure to designate an expert to testify concerning proximate causation of her injuries is fatal to her case. We agree with this alternative ground, and we accordingly affirm the judgment of the trial court on that basis.

BACKGROUND

According to the allegations in the complaint, Summers was a patient at the Harrisonburg Family Practice. Beginning in September 2010, she received treatment from Dr. Deborah A. Nio at this practice group for the psychological, emotional, and physical symptoms Summers was experiencing as a result of being the victim of "past and present sexual abuse and harassment," including at her workplace. In November 2010, Dr. Nio wrote that Summers may suffer from Post–Traumatic Stress Disorder

, or PTSD. Summers experienced suicidal and homicidal thoughts. During this time, Dr. Nio prescribed various medications for her conditions, including anti-depressant, anti-anxiety, and sleep aid medications. Her treatment there continued through August 2011.

More than two years later, in March 2014, Summers returned to Harrisonburg Family Practice because of high blood pressure

. Dr. Nio was unavailable, so she was seen by Dr. Syptak, another physician at the practice. Dr. Syptak happens to be Dr. Nio's husband. Summers alleged that, while treating her for high blood pressure over the course of several visits, Dr. Syptak "engage[d] in conduct involving unsolicited and unwanted sexual comments and innuendo to [p]laintiff, including the following:"

a. Telling Plaintiff that if she lost weight she would feel and look sexy;

b. Using the terms "Love," "Sweetpea," and "Sweets" in conversation with Plaintiff when referring to her;

c. Describing his sex life with his wife including telling Plaintiff that although he had slowed down with age he was still like a "jack rabbit" and maybe that's why they've had a number of children;

d. Telling Plaintiff a "joke" about a boy who did not want his mother to wash his white tube socks because he had masturbated and ejaculated into them;e. Inquiring about Plaintiff and her husband's sex life, wondering whether it was the same as his—"on and off;"

f. Telling Plaintiff that around Harrisonburg the term "fiancée" is like "redneck layaway"—and how you can try them out before you buy the merchandise;

g. Giving Plaintiff a sample of a nasal spray and then "jokingly" telling her "it's for your nostrils—no other holes;"

h. Telling Plaintiff a story about a man who, when his wife left him, shot himself in the shoulder and how if his wife left him, while he might be upset at the outset, he would get over it as he would be able to see other women, including "the nanny," and have some fun; and

i. Describing to Plaintiff how he and his wife have sex in their king size bed; telling Plaintiff that for people their size it's like five beds and that "having sex is like boarding a pirate ship ... it's true, I don't know if you ever had a big bed like that, but the wife wanted one and I was fine with it."

Summers surreptitiously recorded some, but not all, of these remarks. Dr. Syptak made some of these comments while Summers was accompanied by her husband and at least one of the comments was directed toward him.

Summers filed this action against both Dr. Syptak and Harrisonburg Family Practice, pleading theories of intentional infliction of emotional distress and negligence. She alleged that his "unsolicited, unwanted, inappropriate, and highly offensive sexual comments, ‘jokes,’ and sexual innuendo" caused the plaintiff's preexisting mental and physical health to "drastically" deteriorate. In response to interrogatories, Summers stated that, among other things, her PTSD, depression, and fibromyalgia

worsened as a consequence of Dr. Syptak's statements.

Dr. Syptak filed a request for an expert witness certification under Code § 8.01–20.1, contending that the plaintiff was required to obtain an expert who could testify that the defendant had "deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed." The plaintiff responded that no expert certification was required because whether Dr. Syptak was negligent and whether the statements he made proximately caused the plaintiff's injuries were matters that fell "within the range of the jury's common knowledge and experience." Dr. Syptak then moved for summary judgment, arguing that the plaintiff's failure to designate an expert required dismissal. He asserted that the plaintiff was required to designate an expert who could testify concerning "[t]he existence-and extent-of a physician's duty to review a patient's chart before treating her for hypertension

," and that it "is not something that ‘clearly’ falls within the ‘jury's common knowledge and experience.’ " In addition, he noted that the plaintiff alleged that she had a preexisting history of mental distress and that "[u]nraveling whether [p]laintiff's psychiatric condition was caused by her visit[s] to Dr. Syptak, as opposed to those earlier traumas, is not something that is within the ‘jury's common knowledge and experience.’ " Dr. Syptak submitted an expert designation to address the extent to which a reasonably prudent family practice physician had a duty to review a patients' prior chart, and to what extent Dr. Syptak's statements to his patient deviated from the standard of care.

Summers later submitted an expert designation, designating Mercy Souder, a licensed professional counselor, as a prospective expert witness. In a report Summers attached to her designation, Souder detailed Summers' difficult childhood, her history of sexual abuse from a young age, and sexual harassment she experienced at work. Souder stated that Summers has been diagnosed with Bipolar Disorder

and Post–Traumatic Stress Disorder, and that "her symptoms have worsened after the incident with her doctor in which he made vulgar and inappropriate comments." Souder, however, did not purport to offer any opinion expressing a conclusion that Dr. Syptak's comments were a proximate cause of the worsening of Summers' preexisting conditions. Dr. Syptak submitted a reply in support of his motion for summary judgment, arguing, among other things, that the plaintiff "needs—and does not have—a causation expert." Summers responded that whether Dr. Syptak's actions violated the standard of care was within the common knowledge of the jury and that the allegations that the plaintiff's condition worsened after her visits to Dr. Syptak were sufficient to create a jury issue even without expert testimony.

The trial court granted summary judgment to Dr. Syptak on the basis that the plaintiff was required "to designate a qualifying expert to testify on the standard of care and causation." In its memorandum opinion, the trial court did not address the causation point in detail.

ANALYSIS

Summers assigns error to the trial court's holding that expert testimony was required. At trial, the parties and the court focused on two issues: (1) whether expert testimony was required to establish a physician's duty under the standard of care to familiarize himself with a patient's medical records and (2) whether a plaintiff needed to designate an expert who could offer an opinion on whether Dr. Syptak violated the standard of care in his communications with his patient. Dr. Syptak, however, also argued that the plaintiff was required to designate an expert who could offer testimony that Dr. Syptak's statements were a proximate cause of Summers' injuries. Although the trial court appears to have accepted this argument, it did not develop the issue in any detail. Nevertheless, we are "not limited to the grounds offered by the trial court in support of its decision, and [we are] ‘entitled to affirm the court's judgment on alternate grounds, if such grounds are apparent from the record.’ " Perry v. Commonwealth , 280 Va. 572, 582, 701 S.E.2d 431, 437 (2010) (quoting MM v. Sch. Dist. of Greenville Cnty. , 303 F.3d 523, 536 (4th Cir. 2002) ). See also Miller & Rhoads Bldg., L.L.C. v. City of Richmond , 292 Va. 537, 542, 790 S.E.2d 484, 487 (2016) (" ‘This Court may uphold a judgment even when the correct reasoning is not mentioned by a party in trial argument or by the trial court in its decision, as long as the record contains sufficient information to support the proper reason.’ ") (quoting Haynes v. Haggerty , 291 Va. 301, 305, 784 S.E.2d 293, 294 (2016) ). We hold that the plaintiff was required to designate an expert who could offer testimony that Dr....