Woodbury v. Courtney, 890994
| Decision Date | 20 April 1990 |
| Docket Number | No. 890994,890994 |
| Citation | 239 Va. 651,391 S.E.2d 293 |
| Parties | ., M.D. Record Supreme Court of Virginia |
| Court | Virginia Supreme Court |
William D. Breit (Breit, Drescher & Breit, Norfolk, on brief), for appellant.
H.H. Hunter Clarke (Fay F. Spence, Knight, Dudley, Dezern & Clarke, Norfolk, on brief), for appellee.
Present: All the Justices.
Patricia Woodbury, appellant, filed this action against Dr. C.B. Courtney, Jr., alleging that he breached the standard of care and committed a battery upon her during a surgical procedure which he performed on July 23, 1984.
Woodbury's primary physician, John Q. Hatten, referred her to the Breast Diagnostic Center in Newport News for mammography studies. A physician at the Center determined that Woodbury had a suspicious mass deep against the chest wall of her left breast which indicated fibrocystic change. Dr. Hatten then referred Woodbury to Dr. Courtney, a general surgeon. Dr. Courtney examined Woodbury on July 18, 1984. Woodbury claims that she discussed the suspicious mass with Dr. Courtney and gave him permission to perform a "biopsy only" to determine whether the mass was malignant. Woodbury signed a consent form which stated: "I hereby give my consent and authorize Dr. Courtney to perform the following medical or surgical procedure(s): left breast biopsy--biopsy only."
On July 23, 1984, Dr. Courtney performed a partial mastectomy on Woodbury. He removed a quarter of her left breast. Woodbury contends that the procedure was performed without her permission and that she gave him permission to remove only approximately one centimeter of tissue from her breast for the biopsy.
Woodbury filed a notice of claim against Dr. Courtney as required by Code § 8.01-581.2 and later filed a motion for judgment. Woodbury took a voluntary nonsuit of that action as permitted by Code § 8.01-380. Woodbury filed another motion for judgment. She alleged, in her second motion, that Dr. Courtney negligently performed the July 23, 1984 procedure and that she did not consent to that procedure.
Dr. Courtney filed grounds of defense and interrogatories requesting the identity of Woodbury's expert witnesses. Dr. Courtney also filed a motion to establish cut off dates for the identification of expert witnesses. Approximately five months later, the trial court ordered Woodbury to identify, on or before September 8, 1988, all expert witnesses who would testify at trial on her behalf. The order prohibited Woodbury from using any expert witnesses at trial who had not been identified by the cut off date. Woodbury filed answers to interrogatories on September 2, 1988, which identified two physicians "who might testify" about the applicable standards of care and Dr. Courtney's alleged deviations from those standards. During an evidentiary hearing, the trial court concluded that neither of the medical experts identified by Woodbury had agreed to or intended to testify at trial.
Dr. Courtney filed a motion for partial summary judgment requesting that the trial court dismiss the negligence claims against him because Woodbury did not have any expert witnesses who would testify at trial and, accordingly, could establish neither the applicable standards of care nor any deviations from those standards. The trial court granted the motion for partial summary judgment. The lawsuit was allowed to proceed solely on the battery claim.
On the morning of the trial, before presentation of any evidence to the jury, the trial court granted summary judgment for Dr. Courtney after it considered proffered evidence, argument of counsel, and pre-trial motions. The proffered evidence indicates that Dr. Courtney would have presented medical testimony that "biopsy" and "partial mastectomy" are synonymous terms for the same procedure. Woodbury proffered evidence that she only gave Dr. Courtney permission to remove one centimeter of tissue from her breast, but she had no medical witnesses to contradict Dr. Courtney's testimony that partial mastectomy and biopsy are synonymous terms for the same procedure. Dr. Courtney argued that the only reasonable conclusion which could be inferred from this testimony is that a partial mastectomy is the same procedure as a biopsy and, therefore, Woodbury consented to the partial mastectomy. The trial court...
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