
    CIRCUIT COURT OF WISE COUNTY
    Estate of Brandon McFalls v. Dorothy V. Vincent et al.
    September 4, 1997
    Case No. L94-249
   By Judge Ford C. Quillen

The matter before the Court is a motion in limine by counsel for the defendants, Dr. Dorothy Vincent (a pediatrician) and St. Mary’s Hospital, to disqualify Dr. Monte Phillips (a surgeon) as an expert witness in die above-styled case. In the Court’s deliberations, the Court relied upon the discovery depositions of Dr. Phillips, memoranda by plaintiff and defendants, and oral arguments. The issue is whether Dr. Phillips has sufficient knowledge, skill, training, and experience to make him competent to qualify as an expert in the subject matter of this case and “demonstrates expert knowledge of the standards of the defendant’s specialty.”

I. Testimony as to Dr. Dorothy Vincent

A. Facts of the Case as Stated by Dr. Phillips

The decedent was a small child who was presented to die treating doctor with pneumonia and admitted to St Mary’s Hospital on June 9, 1992. The child had a strep throat prior to admission and had been on penicillin. The penicillin had been discontinued, and die child was given erythromycin, which was discontinued on the second day of hospitalization. Later die child was restarted mi oral erythromycin and was given it until die child’s demise. The notes show that this seven year old child was admitted with pulmonary atresia (absent a right pulmonary artery), pneumonia with pulmonary infiltrate, demonstrable on a chest x-ray, complicated by previous infectious mononucleosis, with enlargement of the liver and spleen.

Dr. Phillips also states that it was known during the course of hospitalization that the drug erythromycin was being given to the mother to administer to the child. On one occasion, it was described as being mixed with ice cream so the child would take it. It was known during hospitalization that the child did not want to take it, and he vomited on every day of his hospitalization except on June 12, which was die day before the child died. On page 26 of Dr. Phillips’ deposition, Dr. Phillips describes the last vomiting episode as fatal.

Regarding the alleged malpractice, Dr. Phillips testified as to Dr. Vincent’s management of the child while in the hospital, stating a number of acts were dime which did not adhere to the treating doctor’s standard of care. On page 28, line 16, of Dr. Phillips’ testimony, he stated the doctor deviated with the standard of care by (1) failing to use erythromycin intravenously and at an increased level, (2) not culturing the sputum, (3) not having an appreciation of how critically ill toe child was, and (4) continuation of medication in a form which was causing irritation resulting in repeated vomiting, hi addition, Dr. Phillips noted that (6) there was no adjunct antibiotic used, and (7) toe cause of toe pneumonia was never diagnosed.

B. Dr. Phillips [Experience and Training

Dr. Phillips has had extensive training and experience in toe thoracic and pulmonary areas which are involved in this particular case, and he is a board certified surgeon. After receiving his medical degree from toe University of Tennessee, he completed a straight surgery internship at toe University of Alabama, and toen he did a residency in general surgery, with a fellowship in cardiology. He served toe U.S. Army in Vietnam where he performed surgery at a field army hospital. He then did three years of cardiac/tooracic surgery at the University of Alabama. He started practicing general surgery in 1971 in Kingsport, Tennessee. While completing his residency, Dr. Phillips treated and operated on pediatric patients and had consultations with pediatricians. He worked with small and large babies, did lung surgery on children and intents, even when he can» to Kingsport and started practicing. He had experience doing toe following procedures on patients’ lungs: pneumonectomies, scarification procedures, re-expansions of pneumothorax, bronchoscopy, removai of foreign bodies in intents and children. He also had treated a child with toe condition of absent pulmonary artery. Although Dr. Phillips’ practice was in Tennessee, his patients were approximately 45 to 50% from Virginia, particularly southwest Virginia.

The Court finds that Dr. Phillips is qualified in knowledge, experience, skill, and training to testify as to the appropriate standard of care in regard to the subject matt» of this case.

C. Demonstrating Expertise in the Defendant Doctor & Specialty

The requirements of Virginia Code § 8.01-581.20 governing standard of care testimony in a medical malpractice case are intended to insure that a physician’s treatment of a patient will not be judged by the standards of a different specialty. See Ives v. Redford, 219 Va. 838 (1979).

This ... also prevents an expert, such as a specialist in a given area, from imposing his or her own standards of care upon persons with less specialized or different experience.

See Johnson v. Capital Area Permanente Group, 32 Va. Cir. 145, 147 (1993) (emphasis added).

From the depositions, it appears that the alleged deficiencies found by Dr. Phillips (such as failure to ensure die child was getting the prop» dosage of medicine, give the erythromycin intravenously because tire child was regurgitating the medicine, give additional antibiotics because of the child’s serious condition, culture the sputum, etc.) would be discernible to a pediatrician, family practitioner, internist, surgeon, or any specialist

In Vazquez, Adm'r v. Ceballos, 36 Va. Cir. 181 (1995), an internist was qualified to testify in regard to the treatment of pneumonia when die defendant doctor was an emergency room doctor, a different specialty. The court held in that case that the treatment of pneumonia does not differ between a primary cate specialist such as internist or emergency room doctor. This Court would hold that this same logic would apply in this case in that Dr. Phillips, even though a surgeon, would be qualified to testify as to the child’s condition and tire appropriate standard of care.

It is ele» that thus standard for treating this infectious disease of pneumonia would be the same whether performed by a family physician or a surgeon. The difference in specialties is forth» discussed in the Vazquez case in which tite court states:

Furthermore, during voir dire, Dr. Cebalios’ [defendant's] counsel did not demonstrate that different standards of care apply to an em»gency room physician’s treatment of a pneumonia patient as opposed to those which govern such a patient’s treatment by an internist or other primary care physician. This Court, therefore, concluded then, and it affirms now, that Dr. Donowifz’ education and other credentials, coupled with his experience, were more than adequate to demonstrate his knowledge of die standard of care for the treatment of pneumonia by an emergency room physician such as Dr. Cebados.

36 Va. Cir. at 184 (emphasis added).

There is no evidence in Dr. Phillips’ discovery deposition that his standard of treatment for pneumonia would differ from Dr. Vincent’s, and, of course, at the trial, this question could fee ¡asked in voir dire to ensure that the treatment would be the same regardless of specially.

It appears to the Court that the management of the child at the hospital was for pneumonia with special complications and that Dr. Phillips showed knowledge of the conditions of the child and the treatments would be within the general realm of Dr. Phillips’ knowledge and training, as well as pediatricians, family physicians, or other specialists. The same standard would apply to Dr. Phillips or other specialists. It is noted that the decedent in the Vazquez case had a rare endocrine deficiency, just as diere were further complications in the instant case.

In the Johnson case, concerning the uniform treatment of pneumonia by doctors regardless of specially, the court states as follows:

Certain physical disorders cross the lines of various disciplines within the medical profession. For instance, a patient with a back problem might be treated by practitioners in a number of fields: chiropractic, internal medicine, neurology, neurosurgery or orthopedic surgery. In such a case, each individual practitioner might be subject to a different standard of care based on the treatment prescribed and die practice in their field. Other disorders, however, are so prevalent that any doctor in active practice can properly diagnose the ailment, if not necessarily treat it Pneumonia is one such ailment.

32 Va. Cir. at 148 (emphasis added).

After reviewing the opinions of the expert witness, the Court finds that diese opinions are based upon the standards of the defendant doctor’s specialty.

For the above reasons, the Court finds Dr. Phillips qualified to testify in the case against Dr. Vincent.

II. Testimony as to St. Mary Is Hospital

The plaintiff must prove that nurses of St Mary's Hospital Med to adhere to tiie standard of care applicable to nurses. The standard of care for the treatment of the child which the Court found applicable to Dr. Vincent and to multi-specialists is not applicable to nurses. The Court further finds that there is not sufficient evidence by Dr. Phillips’ deposition to show that he is qualified to testify to the standard of care applicable to the nurses. Also, a review of Dr. Phillips’ deposition does not readily show any act of malpractice on the part of the nurses at St. Mary’s Hospital. For these reasons, the Court unless presented with further evidence would exclude Dr. Phillips from testifying against the hospital  