Moates v. Hyslop , 253 Va. 45 ( 1997 )

Present: All the Justices
ROBERT COURTLAND MOATES
OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
v. Record No. 960933
January 10, 1997
JOHN W. HYSLOP, ET AL.
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
In this medical malpractice action, the patient-plaintiff
alleged that the physician-defendant (1) failed to inform him of
the risks attendant to the medical procedure involved, and (2)
failed to give him any discharge instructions. The issue in this
appeal is whether the patient was required to present expert
testimony to show whether and to what extent such information
should have been disclosed by the physician to the patient.
I
Robert Courtland Moates filed a motion for judgment against
John W. Hyslop, M.D., and others, seeking damages for injuries
Moates allegedly sustained as a result of Hyslop's negligence.
Moates claimed, inter alia, that Hyslop negligently failed to
provide him with adequate preoperative and postoperative
information and that such failure proximately caused his
injuries. Hyslop filed a motion for summary judgment based upon
responses to requests for admissions, and, by final order entered
February 7, 1996, the trial court sustained the motion and
granted summary judgment in favor of Hyslop. The trial court
ruled that Moates was required to provide expert testimony in
order to establish a prima facie case of negligence. We awarded
Moates this appeal.
II
The record contains a written statement of facts, filed
pursuant to Rule 5:11(c). In 1991, Moates was having severe and
recurrent pain in his chest, abdomen, and upper back. Moates
went to his family doctor, Kevin A. Keller, M.D. Dr. Keller
diagnosed the cause of Moates' problem as either an inflamed
gallbladder or gallstones and made arrangements for Moates to be
seen by Hyslop, a general surgeon affiliated with Surgical
Associates of Richmond, Inc.
Hyslop examined Moates and discussed generally the risks
inherent in the performance of a laparoscopic cholecystectomy, a
less invasive surgical excision of the gallbladder. Hyslop,
however, did not discuss with Moates the option of conventional
surgery. Hyslop has admitted that at no time did he inform
Moates that the carbon dioxide that would be used to inflate
Moates' abdomen could leak into his scrotum causing great
swelling or that a deep vein thrombosis could result from the
insufflation.
On October 2, 1991, Hyslop performed a laparoscopic
cholecystectomy on Moates at Johnston-Willis Hospital. During
the surgery, carbon dioxide escaped into Moates' scrotum causing
it to swell "to a huge and painful size." 1
1
Moates conceded that he had no expert witness to show that
the surgery was performed improperly. Therefore, his claim that
Hyslop negligently performed the surgery was stricken and
dismissed and is not a subject of this appeal.
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Moates claims that, before he was discharged from the
hospital, neither he nor his wife was given any instructions by
Hyslop regarding postoperative care. Hyslop has no recollection
of what he told Moates, but he assumes that he gave Moates the
usual discharge instructions.
Moates developed a deep vein thrombosis in his right leg.
As a result, he is unable to perform his work as a gunsmith to
the same extent that he could prior to the surgery because his
work requires constant standing.
Dr. Keller has given his professional opinion that Moates'
swollen scrotum and subsequent deep vein thrombosis were caused
by the insufflation.
III
In granting summary judgment, the trial court relied upon
Bly v. Rhoads, 216 Va. 645, 222 S.E.2d 783 (1976), an informed
consent case. The physician-defendant in Bly had performed a
hysterectomy on Bly. Following the surgery, Bly developed
complications, and further hospitalization and surgery were
required to correct her problems.
Bly sued her doctor, claiming, inter alia, that the doctor
failed to give her sufficient information to make an informed
choice about her treatment. Specifically, Bly claimed that the
doctor failed to advise her that there were alternatives to the
surgery and to explain to her the risks involved in a
hysterectomy. Id. at 645-47, 222 S.E.2d at 784-85.
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In Bly, we adopted the rule that, in order for a patient to
recover against the physician for failure to adequately inform
the patient of the alternatives to and the risks of a particular
treatment, the patient is required "to show by qualified medical
experts whether and to what extent information should be
disclosed." Id. at 650-51, 222 S.E.2d at 787. We also said,
however, that we could "envision situations, albeit relatively
infrequent, where from ordinary human knowledge and experience
the necessity of disclosure is so obvious that expert testimony
should not be required." Id. at 650, 222 S.E.2d at 787. Moates
contends that this statement in Bly applies to the facts of his
case. We do not agree.
With respect to the issue of informed consent, we think the
facts in Bly and those in the present case are indistinguishable,
and, therefore, the rule in Bly controls. Consequently, we
conclude that the trial court correctly ruled that Moates was
required to show by qualified medical experts whether and to what
extent information should have been disclosed to him by Hyslop
prior to the surgery. Moates did not have an expert in the field
of laparoscopic cholecystectomy surgery, and, therefore, he could
not pursue the claim.
IV
As previously stated, Moates also claimed that Hyslop
negligently failed to give him any postoperative instructions.
The trial court, relying on the Bly rationale, likewise granted
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summary judgment in favor of Hyslop, ruling that Moates was
required to establish Hyslop's negligence by qualified expert
testimony. 2
The record before us suggests that Hyslop did not give
Moates any postoperative instructions, and, following the
operation, Moates developed a deep vein thrombosis in his right
leg. Moates argues that "[i]t doesn't take an expert to
establish that Moates should have been given discharge
instructions." We agree that it should be obvious, even to a lay
person, that a physician who has performed major surgery has a
duty to give his patient postoperative instructions and that the
physician's failure to give any instructions constitutes
negligence per se. This, however, is only a part of the
equation. Moates also has the burden of proving not only that
Hyslop was negligent but also that Hyslop's negligence was the
proximate cause of his injury. To establish causation, Moates
was required to produce qualified expert testimony about what
instructions should have been given to him and that Hyslop's
failure to give such instructions proximately caused Moates' deep
vein thrombosis. Consequently, we hold that the trial court did
not err in granting summary judgment in favor of Hyslop on this
2
The trial court established a cut off date for the parties
to identify their expert witnesses. Moates named Dr. Keller as
his expert, but the court, by an order entered January 5, 1996,
ruled that Dr. Keller was not qualified to testify on "the
standard of care issue applicable to a general surgeon." Moates
did not request leave to identify another expert and has not
appealed this ruling.
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claim.
V
Accordingly, we will affirm the trial court's judgment.
Affirmed.
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