Powell v. Margileth

Present: 	Carrico, C.J., Compton, Lacy, Hassell, Keenan, Koontz,
JJ., and Poff, Senior Justice
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MARY ESTELLA POWELL,
EXECUTRIX OF THE ESTATE OF
WILLIAM G. POWELL, JR., DECEASED
OPINION BY
v. 	Record No. 990319 	SENIOR JUSTICE RICHARD H. POFF
January 14, 2000
ANDREW MARGILETH, M.D.
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
This litigation commenced in January 1994 when William G.
Powell, Jr., (Powell) filed a motion for judgment against Dr. C.
R. Massey, III, and Dr. Andrew Margileth alleging medical
malpractice. 	Following Powell's death in 1995, his widow, Mary
Estella Powell, qualified as executrix of his estate, and the
trial court converted the case into a wrongful death action.
At the first trial of the case, the executrix non-suited
Dr. Margileth, and the jury returned its verdict in favor of Dr.
Massey. 	In April 1996, the executrix filed a motion for
judgment against Dr. Margileth alleging that his misdiagnosis
and treatment of his patient caused Powell's death from cancer-
related pneumonia. 	At the second trial conducted in June 1998,
the trial court granted the defendant's motion to strike the
plaintiff's evidence, and we awarded the plaintiff an appeal
from the judgment entered on that ruling.

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We will review the chronology of the facts in evidence
related to questions presented by the plaintiff's assignment of
error.
On January 9, 1992, Dr. Massey, a specialist in
otolaryngology, measured a node in Powell's neck as 4 cm x 3 cm
and ordered a CT scan. 	As interpreted by a radiologist, the
scan conducted January 11, 1992 indicated that the size of the
"left cervical mass . . . is due to an enlarged internal jugular
node which most likely is an abscess . . . ."
On January 14, 1992, Dr. Massey aspirated fluid from the
enlarged node. 	Although he discussed the CT scan with Powell
and ordered cultures, he did not suggest a need for an
examination to rule out cancer.
Because Powell had told him that he had experienced some
exposure to cats, Dr. Massey referred Powell on January 21, 1992
to Dr. Margileth, an infectious disease specialist experienced
in the diagnosis and treatment of cat scratch disease. 	On
January 27, 1992, Dr. Margileth performed tests for tuberculosis
and cat scratch disease and measured the "swelling . . . in the
left anterior superior neck" as 4.4 x 6 x 2.6 cm. 	He advised
his patient that he had cat scratch disease and prescribed
antibiotics. 	The results of the CT scan had been furnished to
Dr. Margileth.
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On February 18, 1992, Dr. Massey palpated a nodule in
Powell's neck which measured 4 x 2.8 cm. 	Dr. Massey performed
another examination on April 7, 1992 in the course of which he
suggested the possibility of cancer.
In June 1992, Powell discovered a second lump in his neck
and in July went for help to the Veterans Administration Medical
Center Hospital. 	A needle aspiration of the two lumps diagnosed
cancer representing a progression from stage III in January 1992
when the CT scan was conducted to stage IV in July 1992. 	Powell
underwent radiation therapy, surgery, and other treatment but
died of cancer three years later at the age of 40.
In the case of a wrongful death resulting from medical
malpractice, the plaintiff must prove a breach of the standard
of care and a proximate causal relationship between that breach
and the injury alleged. 	Griffett v. Ryan, 247 Va. 465, 470, 443
S.E.2d 149, 151 (1994);
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see also St. George v. Pariser, 253 Va.
329, 484 S.E.2d 888 (1997);
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Blondel v. Hays, 241 Va. 467, 403
S.E.2d 340 (1991).
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When ruling on a defendant's motion to strike the
plaintiff's evidence, the trial court must draw all reasonable
inferences the evidence may raise in favor of the plaintiff.
Hadeed v. Medic–24 Ltd., 237 Va. 277, 285-86, 377 S.E.2d 589,
593 (1989). 	If it appears from the record that such inferences
are reasonable, then the issues concerning standards of care and
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proximate cause are questions of fact to be determined by a
jury.
In a memorandum opinion dated October 6, 1998 explaining
its decision to grant the defendant's motion to strike the
plaintiff's evidence, the trial court held that "there is no
evidence or reasonable inference that would allow a jury of
reasonable persons to conclude that the Defendant's breaches of
the standards of care proximately caused the decedent's
injuries; adversely altered the required method of treatment; or
adversely affected his rate of survival."
Dr. Francois E. Holder, one of the plaintiff's expert
witnesses, testified that the defendant's misdiagnosis of cat
scratch disease caused his patient delay in diagnosis and
treatment of his cancer from January until July, and that if he
had been "informed of the possibility of cancer in January, and
options were offered in terms of biopsy for fine needle
aspirations, Mr. Powell would have had a diagnosis of cancer
probably the first week of February." 	Asked whether the delay
was "a direct and proximate cause of the failure of Dr.
Margileth to comply with the required standard of care," Dr.
Holder answered, "Yes, it was."
Dr. M. Karim Ali, who had treated Powell at the VA
Hospital, testified as an expert in the staging, treatment, and
surgery of cancer. 	Asked what would have been Powell's
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"percentage chance of survival for 5 years" if he had "received
him as a patient based on the January 11, 1992 CAT scan report,"
which identifies the cancer as stage III, Dr. Ali said that
Powell would have had "[a]round 75 percent" chance of surviving
5 years compared to the "15 to 20 percent" chance he had in July
1992.
Dr. Oscar Tercilla, a professor at Medical College of
Virginia, was qualified as an expert in the staging and
treatment of cancer, estimating prognosis at the cancer stage,
and medical treatment caused by failure to make a timely
diagnosis. 	Dr. Tercilla testified as follows:
If Mr. Powell had been treated in January as opposed to
July it is my opinion that he had a higher likelihood of
being controlled of this disease than he had when he
presented at the VA in July. 	Because of that, you would
have avoided his recurrence which occurred in July of 1993
with the tumor reappearing in his tonsil and subsequent
treatment that came from that.
Absent a recurrence, the witness agreed "[i]n all
likelihood" that Dr. Margileth's patient "would still be alive."
Dr. Barbara Kipreos, a pathologist at the VA center, was
asked her opinion whether, "if Dr. Margileth would have
requested a fine needle aspirate at the Mary Washington Hospital
pathology laboratory" in January 1992, "Mr. Powell's cancer
would have been diagnosed at that time." 	In reply, the witness
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said, "Yes, it is my opinion that it would have been diagnosed
at that time."
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*
We disagree with the trial court's ruling that "there is no
evidence or reasonable inference that would allow a jury of
reasonable persons to conclude that the Defendant's breaches of
the standards of care proximately caused the decedent's injuries
. . . or adversely affected his rate of survival." 	Qualified
experts in the field testified otherwise.
We hold, therefore, that the trial court erred in granting
the defendant's motion to strike the plaintiff's evidence, and
we will reverse the judgment entered below and remand the case
for a new trial in accordance with this opinion.
13 	Reversed and remanded.
* The trial court found "no evidence before this court" that
Powell would have consented to a fine needle aspiration if Dr.
Margileth had recommended one during his examinations on January
27 and January 30. 	Irrespective of the issue whether such proof
was required, we note that the record shows that Powell
consented to such procedure on January 14 when his primary care
physician, Dr. Massey, aspirated the large node in his neck.
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