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Date: 11-04-2007


Case Number: 062134


Court: Supreme Court of Virginia on appeal from the Circuit Court of Prince Edward County

Plaintiff's Attorney: Unknown

Defendant's Attorney: Unknown


This appeal arises from a jury verdict in favor of an emergency room physician in a wrongful death medical malpractice action. The dispositive issue presented is whether the circuit court erred in permitting the jury to consider the testimony of the physician's expert medical witness who had expressed an opinion that an alcohol withdrawal seizure rather than a diabetic seizure was the cause of the decedent's injury and death. To resolve that issue, we consider whether such testimony was relevant to the question of the physician's alleged negligence in discharging the decedent from the emergency department of the hospital where she was being treated, and if so, whether the expert was qualified to express that opinion.


Because our consideration of this appeal is limited to discrete questions concerning the relevance and admissibility of expert witness testimony, we need recite only those facts necessary to our resolution of the appeal. See, e.g., Budd v. Punyanitya, 273 Va. 583, 587, 643 S.E.2d 180, 181 (2007); Molchon v. Tyler, 262 Va. 175, 180, 546 S.E.2d 691, 695 (2001). We will recite the evidence in the light most favorable to the defendant, Charles C. Anderson, M.D., the prevailing party in the circuit court. See, e.g., Smith v. Irving, 268 Va. 496, 498, 604 S.E.2d 62, 63 (2004).

On the evening of September 22, 2000, Caroline A. Dagner (Dagner), a 52-year-old insulin-dependant diabetic, was transported to the emergency department of Southside Community Hospital in Farmville after being found unconscious in her apartment by her adult daughter, Keisha R. Dagner. It is not disputed that Dagner had taken her daily doses of insulin, had not eaten any solid food, and had consumed a considerable quantity of beer.1 While en route to the hospital, emergency medical personnel determined that Dagner was likely suffering from hypoglycemia, that is, an abnormally low blood sugar level, and gave Dagner an injection of glucagon in an effort to stabilize her condition.2 Dagner responded positively to the glucagon treatment and began to regain consciousness.

Upon arrival at the emergency department of the hospital at 8:35 p.m., Dagner was evaluated by Kim Brown, R.N., a triage nurse, and was then examined by Dr. Anderson. Both Nurse Brown and Dr. Anderson concurred that Dagner's condition was the result of diabetic hypoglycemia. They also detected a smell of alcohol on Dagner's person and suspected that she might be intoxicated, a factor which would interfere with her body's ability to recover from the hypoglycemic episode. Dr. Anderson ordered various laboratory tests to be conducted including a determination of Dagner's blood alcohol level (BAL). He further directed that she be given a meal, and that she receive 50 milligrams of dextrose.3

While Dagner ate the meal, Dr. Anderson spoke with her about her routine for managing her diabetes. During this conversation, Dagner, who then appeared to be fully alert and responding normally, conceded that she had in the past encountered complications in managing her blood sugar level when consuming alcoholic beverages. Dr. Anderson warned her that she "should never drink [alcohol] again." After the laboratory tests were completed, which among other things showed that Dagner had a BAL of .24, Dr. Anderson discussed a management plan with Dagner, directing her to return home, measure her blood sugar level, eat a snack, and rest. He then discharged Dagner from the emergency department shortly after 10:00 p.m.

At Dagner's request, Nurse Brown called Keisha Dagner to advise her that Dagner would be discharged from the hospital and needed to be taken home. Keisha Dagner advised Nurse Brown that she would be unable to leave work and come to the hospital until the next morning. Dr. Anderson was not advised that Dagner would not be able to return home and follow the management plan as he had advised her.

Dagner remained in the waiting area of the emergency department, unattended, for over eight hours after she was discharged by Dr. Anderson. When hospital personnel next checked Dagner on the morning of September 23, she had a blood sugar level of 17 and was comatose and unresponsive.4 Dagner was admitted to the hospital and died on December 20, 2000 without regaining consciousness.

On September 18, 2002, Keisha Dagner, who had qualified as administratrix of her mother's estate, filed a motion for judgment in the Circuit Court of Prince Edward County alleging that Dagner's death was caused by the medically negligent acts of Dr. Anderson and Southside Community Hospital. The action named Dr. Anderson, his employer Emergency Physicians of Farmville, P.C. (collectively, "Dr. Anderson"), and Southside Community Hospital as defendants.5 Dr. Anderson responded to the action by asserting, among other things, that his treatment of Dagner, and specifically his decision to discharge her, was not a breach of the applicable standard of care.

At trial, during the opening statement by counsel for Dr. Anderson, a computerized slideshow media presentation was shown to the jury that outlined Dr. Anderson's anticipated defense and included references to an alcohol withdrawal syndrome (AWS) seizure as the cause of Dagner's coma, brain injury, and death. The substance of Dr. Anderson's defense as outlined in this presentation was that his discharge of Dagner from the emergency department did not violate the standard of medical care because he could not have known that Dagner was subject to seizures as a result of AWS, and that it was just such a seizure that caused her coma, brain injury, and death.

During their direct testimony, counsel for the estate asked its expert witnesses, Dean Williams, M.D. and Anthony McCall, M.D., their opinions as to whether Dagner's coma, brain injury, and death were the result of an AWS seizure, rather than a diabetic seizure. Both experts opined that there was no evidence to support a diagnosis that Dagner had suffered an AWS seizure. Both experts further opined that Dr. Anderson had failed to comply with the standard of care that required him to protect Dagner from the consequences of her low blood sugar in combination with her intoxication from alcohol in making the decision to discharge Dagner from the emergency department. Dr. McCall explained that the combination of insulin and alcohol can be a "lethal combination" for a diabetic such as Dagner. In general terms, insulin lowers the blood sugar level and excessive alcohol in the bloodstream prevents the blood sugar from being stabilized because alcohol prevents the liver from producing more sugar, and the brain requires a constant supply of sugar to remain healthy.

In voir dire by Dr. Anderson's counsel, David L. Shank, M.D., who was Dr. Anderson's only expert witness, testified that he was "board certified in emergency medicine" and that he had "been . . . in the practice of full time emergency medicine since [1980]." Dr. Shank further testified that he was "familiar with the standard of care for the care and treatment of diabetes and hypoglycemia." Dr. Shank agreed that he was "familiar with something called alcohol withdrawal seizure" and that he would be concerned about the occurrence of such a seizure "[i]f someone who has been consuming significant alcohol stops consuming alcohol." In the course of his practice of emergency medicine, Dr. Shank stated that "[i]t wouldn't be unusual . . . to see 5, 10, maybe 15 of those patients [suffering AWS seizures] in a year's time." Over the objection of the estate, the circuit court qualified Dr. Shank "as an expert on the standard of care for an emergency room physician or emergency medicine physician" and, after being prompted by counsel for Dr. Anderson, added that Dr. Shank was "qualified to speak as to causation."

During direct examination, counsel for Dr. Anderson asked Dr. Shank to "explain what caused [Dagner's] unresponsiveness" when she was found in the waiting area of the emergency department on September 23, 2000. Dr. Shank stated that "[t]here are several things that we have to think about that could be the cause," but expressed the opinion that "the most likely cause was that she had an alcoholic withdrawal seizure." Dr. Shank further opined that Dagner's alcohol withdrawal seizure was an "unforeseeable, unpredictable event" based on everything Dr. Anderson knew during his treatment of Dagner and at the time he discharged her from the emergency department.

During cross-examination, Dr. Shank conceded that only three to five percent of the people who have alcohol withdrawal also have seizures, and that such seizures are "readily treatable." Dr. Shank acknowledged that if Dagner had been admitted to the hospital and been observed he would have expected her to survive. Dr. Shank further acknowledged that Dagner's insulin level "was a significant factor" in causing her brain injury following her seizure, that the seizure could have had a "multifactorial cause," and that he was not an expert in such cases. Dr. Shank stated that while he did not "have a neurologist's perspective" on the causation of seizures, he maintained that he had "a reasonable physician's opinion since I'm in emergency medicine and see seizures." At the conclusion of his testimony, the estate moved to strike Dr. Shank's testimony as to causation on the ground that he was not qualified to offer an opinion on a seizure with multifactorial causes. The circuit court overruled the motion.

At the conclusion of all the evidence, the jury returned its verdict in favor of Dr. Anderson, and the circuit court entered judgment in accord with that verdict. We awarded the estate this appeal.

* * *

For the full text of this decision, see: http://www.courts.state.va.us/opinions/opnscvwp/1062134.pdf

Outcome: As we have previously noted, the thrust of Dr. Anderson’s defense was that his discharge of Dagner from the emergency department when he did so did not violate a reasonable standard of medical care because it was not foreseeable that Dagner would suffer an AWS seizure after her diabetes-induced hypoglycemia had been treated and stabilized. We therefore must conclude that the improper admission of Dr. Shank’s opinion testimony that Dagner had in fact suffered an AWS seizure, which was the only evidence offered to rebut the estate’s evidence to the contrary, could have influenced the jury’s determination that Dr. Anderson was not negligent. Accordingly, we will reverse the judgment of the circuit court and remand the case for a new trial on all issues consistent with the views expressed in this opinion.7 Reversed and remanded.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None

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