Williams v. Le
| Citation | 662 S.E.2d 73,276 Va. 161 |
| Decision Date | 06 June 2008 |
| Docket Number | Record No. 071409. |
| Parties | Tameika WILLIAMS, Administrator and Personal Representative of the Estate of Tawanda Williams, Deceased v. Cong LE, M.D. |
| Court | Supreme Court of Virginia |
OPINION BY Justice DONALD W. LEMONS.
In this appeal, we consider whether the trial court erred in instructing the jury on superseding intervening causation in a medical malpractice case.
On May 26, 2005, Tawanda Williams ("Williams") saw Dr. Daniel G. Kaw ("Dr. Kaw"), a physician at the Fair Oaks Kaiser Permanente Center in Fairfax, for pain in her right calf and leg. Dr. Kaw ordered a Doppler ultrasound to be performed on Williams' calf within the Kaiser system in mid-June. Williams scheduled a follow-up appointment for "June 6 or PRN" ("as needed").
On June 1, 2005, Williams returned to the Fair Oaks Kaiser Permanente Center to see Dr. Paul McClain ("Dr.McClain"), her primary care physician. Williams complained of ankle pain and discomfort in her calf. Williams told Dr. McClain that she had "misstepped a few weeks earlier." Dr. McClain thought Williams had a possible tear in the back of her calf muscle. Dr. McClain ordered an ankle x-ray for June 1, 2005, and rescheduled the Doppler ultrasound of her calf to be performed within 48 hours.
Williams went to Tysons Corner Diagnostic Imaging for a Doppler ultrasound appointment on June 2, 2005. Megan Murphy ("Murphy"), a sonogram technician, performed the Doppler ultrasound on Williams. Murphy called Dr. Cong Van Le ("Dr.Le"), a diagnostic radiologist who was working at Vienna Diagnostic Imaging,1 and sent him the image of Williams' right lower leg by electronic mail. Murphy believed that the images showed that Williams had a deep vein thrombosis in her right lower leg. Murphy told Dr. Le that she had informed Williams that there was a "positive finding," and that she should see her doctor as soon as possible.
Upon reviewing the images of Williams' leg, Dr. Le diagnosed Williams with deep vein thrombosis in her right leg.2 The presence of deep vein thrombosis put Williams at risk for pulmonary embolism, a life-threatening condition in which pieces of a deep vein clot break off and slip out of the vasculature of the legs and travel into the lungs.
Dr. Le telephoned Dr. McClain's office to tell Dr. McClain the diagnosis of Williams' condition. Dr. Le reached an automatic telephone system, followed the instructions, and then reached an operator. He told the operator who he was, that he was a radiologist, and asked to speak to Dr. McClain. The operator told Dr. Le she would have to locate Dr. McClain, and then she put Dr. Le "on hold." Dr. Le was "on hold" long enough that he "lost [his] confidence to get in touch with [Dr. McClain] at that moment." He stated that he was unable to leave a voicemail or talk to a human being. Dr. Le testified that previously he had problems communicating with the doctors at Kaiser by telephone. Dr. Le prepared a "wet read" (an emergency read) with his findings and drew a picture of Williams' lower extremity showing the location of the blood clots. He placed the wet read in a "wet read box" to be sent immediately by facsimile to Dr. McClain.
After the Doppler ultrasound was performed, Williams telephoned Dr. McClain on June 2. She left a message for Dr. McClain advising him that she had been told by Murphy to call him. Dr. McClain did not personally receive Williams' message.
At 10:43 p.m. on June 2, 2005, Dr. McClain sent the following electronic mail message regarding Williams to his clinical assistant, Lynne Stidman ("Stidman"): "PACE" is Kaiser's electronic system for patient medical records and internal non-urgent messages. On the morning of June 3, 2005, Stidman called the imaging center and had the results of the Doppler study sent to her by facsimile. Stidman received the report and entered it into the PACE system. At 10:24 a.m. on June 3, 2005, Stidman sent the following message to Dr. McClain: "Patient's Doppler results are in the computer." Dr. McClain did not read Stidman's message until June 15, 2005, after Williams died.
Dr. McClain had an appointment scheduled with Williams on June 6, which Williams did not attend. Williams died on June 8, 2005, from a pulmonary embolism. Dr. McClain did not look at the results of the Doppler ultrasound of Williams' leg until February of 2006. Dr. McClain testified that normally, if there was a positive finding from a Doppler ultrasound, he would be notified by the radiologist with "direct contact," which was "[g]enerally voice-to-voice contact." Dr. McClain testified that had he received direct contact, he would have immediately started Williams on anticoagulant therapy. The plaintiff's expert testified that "anticoagulation would have prevented [Williams] from developing a pulmonary embolism," and that if the anticoagulant therapy had been started anytime before the morning of June 7, 2005, the treatment would likely have prevented Williams' death.
Tameika Williams ("Tameika"), as administrator and personal representative of the estate of Williams, filed a complaint against Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc., Mid-Atlantic Permanente Medical Group, P.C., Tyson's Corner Diagnostic Imaging, Inc., Vienna Diagnostic Imaging, Inc., and Dr. Le, alleging negligence in a wrongful death action. Tameika nonsuited her claims against Tysons Corner Diagnostic Imaging, Inc. and Vienna Diagnostic Imaging, Inc. Tameika settled her claims against Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc. and Mid-Atlantic Permanente Medical Group, P.C. The case proceeded to trial solely against Dr. Le.
At trial, Tameika presented expert testimony that the standard of care requires that a radiologist who diagnoses a patient with deep vein thrombosis make "direct communication with the physician who ordered the study or with one of their physicians who was covering or a nurse or the patient directly," so that the treating physician can "institute prompt treatment." At the conclusion of the evidence, over Tameika's objection, the trial judge gave the following instruction on superseding intervening causation:
A superseding cause is an independent event, not reasonably foreseeable, that completely breaks the connection between the Defendant's negligent act and the alleged injury or death. A superseding cause breaks the chain of events so that the Defendant's original negligent...
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