PRESENT: All the Justices

SHAREEF TAHBOUB, PERSONAL
REPRESENTATIVE AND ADMINISTRATOR OF
THE ESTATE OF JACLYN P. TAHBOUB
                                                                         OPINION BY
v. Record No. 190019                                              JUSTICE WILLIAM C. MIMS
                                                                       February 13, 2020
SIVA THIAGARAJAH, ET AL.


           FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                             Richard D. Taylor, Judge

       In this medical malpractice appeal, we consider whether the plaintiff’s evidence was

sufficient to survive a motion to strike at the conclusion of his case-in-chief.

               I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

       Jaclyn Tahboub was diagnosed with an incompetent cervix during her first pregnancy in

2011. Siva Thiagarajah, M.D. surgically placed a cervical cerclage to prevent a premature birth. 1

Jaclyn later successfully delivered by Caesarean section and the cerclage was left in place.

       In December 2013, Jaclyn was five months into her second pregnancy. Dr. Thiagarajah

could not locate the original cerclage during an ultrasound, so he surgically placed a new one on

December 12.

       At a follow-up appointment on December 20, Jaclyn reported discomfort and pain

radiating to her abdomen, legs, and lower back, which she had not experienced after her 2011

cerclage procedure. Shareef Tahboub, Jaclyn’s husband, asked if she might have an infection,

which Dr. Thiagarajah denied without further investigation. On December 22, Jaclyn called Dr.

Thiagarajah and reported continuing pain in her abdomen, legs, and lower back, as well as a




       1
        A cervical cerclage is a suture placed around the cervix to prevent it from shortening
and opening early.
fever. Dr. Thiagarajah directed her to take Advil and prescribed nifedipine by telephone, without

conducting a physical examination.

       Jaclyn continued to feel unwell. Early on the morning of December 26, she again called

for Dr. Thiagarajah but reached Mikhail Michael Levit, D.O., who was on call for him. She

again reported pain and fever. Dr. Levit told her to take Advil, Tylenol, and nifedipine, without

conducting a physical examination. Jaclyn called back not long after and Dr. Levit directed her

to go to Martha Jefferson Hospital (“MJH”).

       Jaclyn arrived at the hospital by 3:08 a.m. and was assessed at 3:24. A nurse recorded

that Jaclyn was experiencing dizziness, light-headedness, tachycardia, hypotension, discomfort,

contractions, and had reported a fever and change in vaginal discharge. The nurse informed Dr.

Levit by telephone. He did not go to the hospital at that time and did not provide any

instructions beyond basic orders for admission.

       Jaclyn’s membranes ruptured at 4:44 a.m., releasing a foul-smelling, yellow, pus-like

fluid, followed by a continuous discharge of green-brown fluid. Dr. Levit was informed by

telephone at 4:50. He did not go to the hospital at that time. By 5:27 a.m., Jaclyn had a

temperature of 100.8 °F. She was prepared for transfer to the University of Virginia Medical

Center (“UVAMC”) because delivery had become inevitable and it had superior neonatal

intensive care facilities. Dr. Levit arrived at MJH at 6:05 a.m.

       When Jaclyn arrived at UVAMC, she presented with heavy bleeding, fever, ruptured

membranes, pus discharge, and multiple organ dysfunction. Doctors immediately suspected

chorioamnionitis and feared placental abruption and disseminated intravascular coagulopathy




                                                  2
(“DIC”). 2 Diane Rozycki, M.D. treated her for sepsis and chorioamnionitis by administering a

triple-antibiotic “cocktail” of ampicillin, gentamicin, and clindamycin, and a blood transfusion.

Blood cultures later confirmed bacterial infection with E. coli.

       UVAMC staff performed an emergency delivery by Caesarean section, after which

Jaclyn suffered major hemorrhaging. She was admitted to the intensive care unit, where she

remained in critical condition until she died on December 31.

       Shareef, as Jaclyn’s personal representative and the administrator of her estate, filed a

complaint alleging that Dr. Thiagarajah and Dr. Levit had been professionally negligent, which

had caused Jaclyn’s wrongful death. At trial, he adduced expert testimony from Frederick

Gonzalez, M.D., a specialist in fetal medicine, and Mohammad Sajadi, M.D., a specialist in

infectious disease, among other evidence. At the conclusion of his case-in-chief, the defendants

moved to strike the evidence, asserting that it was insufficient to prove causation. The court

granted the motion and entered a final order awarding judgment to the defendants.

       We awarded Shareef this appeal.

                                           II. ANALYSIS

       As we recently observed, a motion to strike the plaintiff’s evidence replaces the abolished

demurrer to the evidence. See Sweely Holdings, LLC v. SunTrust Bank, 296 Va. 367, 382 n.12

(2018); see also Martin P. Burks, Pleading and Practice § 284, at 510 (4th ed. 1952) (citing

Green v. Smith, 153 Va. 675 (1930)). While the procedure and effect of these practices differed,

id. at 511-12, the function was the same. Thus, as a demurrer to a complaint tests whether the

plaintiff’s allegations are sufficient to state a cause of action, a motion to strike at the conclusion



       2
         Chorioamnionitis is an infection of the placenta and amniotic membranes and fluid.
DIC is the loss of the blood’s ability to clot, which may be caused by infection or significant
blood loss.


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of the plaintiff’s case-in-chief, like a demurrer to the evidence, tests whether his evidence is

sufficient to prove it. See id. § 275, at 487.

        Accordingly, just as “we accept as true all factual allegations expressly pleaded in the

complaint and interpret those allegations in the light most favorable to the plaintiff” when

reviewing a ruling on a demurrer to a complaint, Anderson v. Dillman, 297 Va. 191, 193-94

(2019), we review “the evidence and all reasonable inferences fairly deducible therefrom in the

light most favorable to the plaintiff” when reviewing a motion to strike at the conclusion of the

plaintiff’s case-in-chief. Artrip v. E.E. Berry Equip. Co., 240 Va. 354, 357 (1990). “Any

reasonable doubt as to the sufficiency of the evidence must be resolved in the plaintiff's favor.”

Id.

        Consequently, even if the plaintiff’s evidence has been discredited or impeached by the

defendant during his cross-examination of the plaintiff’s witnesses, the court must accept it as

true at this phase of trial. The court must rule based on the presumption that the jury will believe

all the evidence that the plaintiff adduced. To do otherwise would invade the province of the

jury and assess the weight of the evidence. Compare Anderson v. Clinchfield R. Co., 171 Va. 87,

89 (1938) (rejecting the plaintiff’s argument that granting the motion in that case did so, ruling

that precedents limit the motion’s application) with Walton v. Walton, 168 Va. 419, 421-22

(1937) (cited in Clinchfield) (ruling that granting such a motion “and thereby taking the case

from the jury, is drastic and should not be done unless it is very plain that the court would be

compelled to set aside a verdict for plaintiff”) and CGI Fed. Inc. v. FCi Fed., Inc., 295 Va. 506,

509 (2018) (noting that when reviewing a ruling setting aside a verdict in his favor, we give the

plaintiff the benefit of “all substantial conflicts in the evidence”).




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       With these principles in mind, we turn to the evidence Shareef adduced with regard to

each of the defendants.

                                     A. DR. THIAGARAJAH

       Dr. Gonzalez testified that infection is a common risk following cerclage surgery. He

testified that the symptoms Jaclyn reported during her December 22 call to Dr. Thiagarajah—i.e.,

fever, pain, and vaginal discharge—indicated a number of possible conditions, including

infection, premature labor, or simply uterine activity. However, he testified, the report of pain

and fever after cerclage surgery necessitated a physical evaluation, including a cervical

examination and taking Jaclyn’s temperature, blood pressure, pulse, and white blood count. If

these led to a high suspicion of infection, he continued, they should have been followed by an

amniocentesis and culture of the amniotic fluid. He testified that a telephone conversation and

prescription for nifedipine was inadequate and breached the standard of care. He testified that

Jaclyn’s medical records indicated that no one had even taken her vital signs since her cerclage

surgery on December 12, including at her follow-up visit on December 20, when she had initially

reported discomfort and radiating pain.

       Like Dr. Gonzalez, Dr. Sajadi testified that Jaclyn’s symptoms on December 22 required

a physical examination to obtain information about vaginal tenderness, white blood cell count,

and pulse rate in addition to fever to determine whether an infection was present. He testified

that he could not conclusively state that “she had chorioamnionitis on the 22nd, but she probably

had an infection that led to the chorioamnionitis a short time later.” He testified that “if she was

diagnosed with infection on the 22nd and treated, she would have survived. . . . I’m sure if there

was an infection on the 22nd and she was diagnosed and treated, she would have survived.”

Although Dr. Sajadi could not conclusively state that Jaclyn had an infection when she called Dr.




                                                  5
Thiagarajah, he believed that it was medically likely based on the subsequent progression of her

symptoms. His uncertainty was the direct result of Dr. Thiagarajah’s failure to perform a

physical examination and collect the information needed to make a diagnosis one way or the

other. He had no uncertainty that if an infection had been detected and treated on December 22

through those efforts, Jaclyn would not have died.

                                          B. DR. LEVIT

       Dr. Gonzalez testified that the standard of care required Dr. Levit to meet Jaclyn at the

hospital after her first call on December 26 because of the high risk of infection associated with

the cerclage procedure, coupled with her fever and change in vaginal discharge. He testified that

there may ultimately have been no underlying cause for concern, but the reported symptoms

obligated Dr. Levit to conduct a physical examination. After the second call, Dr. Levit finally

directed her to go to the hospital but still did not go there to examine her. According to Dr.

Gonzalez, it was a breach of the standard of care to rely on nurses to diagnose and treat an

infection. The nurse who treated Jaclyn also testified that some tests required to assess her

condition were outside a nurse’s scope of practice.

       Dr. Gonzalez testified that when Jaclyn presented to MJH on December 26, the records

reflect that she reported having a pinkish-brown discharge ever since the cerclage procedure, but

that it changed on December 24 to a yellow-white mucus-like discharge streaked with bright red

blood. He testified that this change was an indication of progressing infection. He testified that

she reported a temperature of 100.4 °F. When her vital signs were taken, he continued, she had a

temperature of 100 °F (which would have been suppressed by the Advil and Tylenol she had

already taken at Dr. Levit’s direction), persistently high pulse rate, and low blood pressure.




                                                 6
       Dr. Gonzalez testified that the failure to treat and diagnose the infection led to the

ruptured membranes because the body’s natural response to an infected uterus is to empty it to

preserve the mother’s life, even at the cost of losing the fetus. He testified that the ruptured

membranes were one step in the process of the uterus attempting to purge itself and another sign

of an infection. However, he continued, Dr. Levit still failed to consider that possibility.

       Dr. Sajadi testified that Jaclyn undoubtedly had chorioamnionitis on December 26

because pathology confirmed it. He testified that by December 26, the infection had progressed

beyond the uterus and placenta and into the bloodstream, causing sepsis and septic shock,

because the same E. coli was found both in amniotic fluid obtained at MJH and in blood taken at

UVAMC. Septic shock led to a dramatic loss of blood pressure, fluid in the lungs, and

hemorrhagic stroke in association with the DIC, culminating in brain death.

                   C. SUFFICIENCY OF THE EVIDENCE OF CAUSATION

       Shareef argues that causation is a jury issue and is established when the evidence shows

that a physician’s act or omission destroyed any substantial possibility of the patient’s survival.

He argues that this case is distinguishable from Dixon v. Sublett, 295 Va. 60 (2018), on which

the defendants relied in their motion to strike. In that case, the plaintiff’s failure to properly

designate her expert witnesses led the trial court to exclude evidence of what a physician

adhering to the standard of care would have done, and that those acts would have led to a

different result. Shareef contends that unlike in Dixon, Dr. Gonzalez testified about what the

defendants could and should have done, and Dr. Sajadi testified that their failures to do it

allowed the infection to progress and ultimately kill Jaclyn.

       Shareef instead cites Brown v. Koulizakis, 229 Va. 524, 531-32 (1985), in which we ruled

that a plaintiff had adduced sufficient evidence to survive a motion to strike after his expert




                                                   7
witness’s testimony established both what the defendant should have done to comply with the

standard of care, and that the plaintiff’s decedent would have had a substantially increased

chance of survival if it had been done. He also cites Hadeed v. Medic-24, Ltd., 237 Va. 277,

286-87 (1989), in which we reversed a ruling granting a motion to strike after the plaintiff

identified precisely what omission violated the standard of care and that the defendants’ failure

to comply with it had destroyed any substantial possibility of the decedent’s survival.

       The defendants here respond that to make out a prima facie case a plaintiff must adduce

evidence of causation—i.e., that a breach of the standard of care affected the patient’s health.

They argue that the plaintiff must show what the standard of care required and that complying

with it would have preserved the patient’s life. In Dixon, the plaintiff asserted that the defendant

was negligent for failing to consult a general surgeon about a perforated bowel during a

laparoscopic procedure, but there was no evidence about what a general surgeon would have

done if one had been consulted. The evidence therefore would have left the jury to speculate

about what should have been done, and it was insufficient to survive a motion to strike.

       According to the defendants here, Shareef’s experts’ testimony was similarly insufficient.

They argue that there was no testimony about what the defendants should have done and what

the probable outcome would have been if they had done it. There was no testimony about risks

of any such treatment to the premature fetus. Neither of Shareef’s experts testified about what

the tests that they asserted the standard of care required would have shown and what treatment

would have been prescribed. No testimony established where the infection, if it existed at all on

December 22, was located, or acknowledged that administering the triple-antibiotic cocktail then

would have required immediate delivery of the fetus, then only 24 weeks old.




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       Further, the defendants assert that Dr. Gonzalez expressly stated that he was not

testifying about causation: he said, “it’s up to somebody else to put together causation. It’s not

up to me.” Similarly, they continue, Dr. Sajadi testified only that “if” there was an infection on

December 22 and she had been diagnosed and treated then, she would have survived. With

regard to December 26, Dr. Sajadi testified that he didn’t know whether Jaclyn would have

survived if the triple-antibiotic cocktail had been administered earlier that day. There was no

testimony that Jaclyn’s treatment would have been different, or how it would have been

different, if Dr. Levit had arrived at the hospital when Jaclyn did, or that any such treatment

would have altered the outcome. Dr. Gonzalez testified that merely administering the cocktail

would not have been sufficient on its own to save Jaclyn’s life. The evidence of Jaclyn’s

treatment history at UVAMC shows it took several days before her infection was brought under

control, and that her strain of E. coli was antibiotic-resistant. Further, both experts testified that

the cocktail was not immediately available at MJH and that they did not know how long it would

have taken to prepare there. Consequently, the defendants conclude, Shareef has not

demonstrated that his experts’ proposed treatment was feasible or would have been effective.

       Finally, the defendants argue that Brown and Hadeed are distinguishable because in those

cases the plaintiffs’ evidence established a feasible treatment plan required by the standard of

care and that failure to adhere to it caused the patients’ deaths. According to them, the circuit

court correctly granted the defendants’ motion to strike in this case, not because of weight or

credibility of Shareef’s experts’ testimony but because even if taken as true, it was insufficient to

establish a prima facie case

       After considering these arguments, we conclude that Shareef’s evidence of causation was

sufficient to survive a motion to strike. As noted above, Dr. Sajadi testified that based on the




                                                   9
progression of her symptoms, Jaclyn probably had an infection on December 22 and that if Dr.

Thiagarajah had diagnosed and treated it then, “she would have survived.” In addition, Shareef

asked Dr. Gonzalez, “do you have an opinion within a reasonable degree of medical probability

and certainty that the breaches of the standard of care that you’ve described by Doctors Levit and

Thiagarajah resulted in [Jaclyn’s] tragic death?” The witness testified that, “[t]he fact that . . .

they didn’t even think of infection, and they did nothing to treat this infection, was a departure

from good and accepted standards of medical care, and was a direct cause of her death.”

       Although the defendants assert that Dr. Gonzalez effectively carved causation out of the

scope of his testimony, we disagree. The context of the remarks they cite establish that his

meaning was much more limited. On cross-examination, they asked him, “you said in your

deposition that it’s not going to be up to you to decide whether it was the [placental] abruption or

the sepsis that caused her DIC, correct?” He answered that, “I have my opinion, but it’s up to

somebody else to put together causation.” The defendants continued, “In your deposition, I

asked you, and you said it’s not up to you to decide if the abruption caused her DIC?” Dr.

Gonzalez answered,

       I have an opinion, but it’s not up to me to do it in front of the jury because I’m not
       the one who treated her for days afterwards. So I’m not going to opine to what all
       of the intensivists and all of the other specialties did as to whether or not that’s
       what caused her death.
               But to me, it’s blatantly obvious that it was septic—it was hemorrhagic
       shock. I mean, that’s my opinion. But it’s up to the jury to pay attention or not
       pay attention.

       Thus, in context, it is clear that Dr. Gonzalez was not disclaiming himself as an expert

witness on causation generally, but only as to which specific phase of Jaclyn’s response to the

infection—the placental abruption or the sepsis—caused the DIC.




                                                  10
       Consequently, unlike in Dixon, the expert witnesses’ testimony in this case establishes

what the standard of care required—a physical examination including cervical examination and

blood tests—and stated how those actions would have affected Jaclyn’s health: they would have

revealed the infection that Dr. Sajadi testified was present on December 22, and led to treatment

that would have saved her life, either on that day or the morning of December 26. Cf. Dixon,

295 Va. at 68 (noting that there was no evidence about “the details of the care” a general surgeon

would have provided if the defendant had consulted one, nor evidence about “the possible effect”

on the plaintiff’s health). As we noted in Dixon, causation is established when “the plaintiff

presented testimony to establish the nature of the treatment the decedent could have

undergone . . . and the probability that such treatment would have extended the decedent’s life.”

Id. (quoting Bryan v. Burt, 254 Va. 28, 35 (1997)) (internal quotation marks omitted). Shareef’s

experts’ testimony satisfied the requirements in Dixon because it specifically identified what the

defendants should have done, which would have led to prompt diagnosis and treatment of the

otherwise fatal condition.

       These facts are also close to Brown, in which a patient reported symptoms that expert

testimony established to be consistent with a pulmonary embolism, following a medical

procedure that carried a significant risk of causing blood clots. However, the defendant

physicians in that case failed to order timely tests that would have confirmed the condition,

resulting in a delay in diagnosis. 229 Va. at 528-29. The plaintiff’s expert witness testified that

the tests would have been ordered “immediately” by a reasonably prudent practitioner. Id. at

529. If the tests had been timely performed, the embolism would have been diagnosed and

urgent treatment consistent with the standard of care would have led to a 95-98% survival rate.

Id. at 530. Instead, the patient died. Id. at 525.




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       We held that the evidence was sufficient to permit the jury to conclude that the

defendants’ inaction “deprived the decedent of a substantial possibility of survival.” We ruled

that the defendant

       did not initiate the routine, necessary diagnostic procedures which would have
       disclosed the ultimately fatal condition. This was evidence of negligence. Prompt
       diagnosis of the presence of the clot, which existed at least 48 hours before the
       death, would have enabled . . . treatment in the form of medication which would
       have substantially increased the patient's chances of living. This was evidence of
       proximate cause.

Id. at 532-33. We therefore reversed the circuit court’s ruling granting the defendants’ motion to

strike the evidence and remanded for a new trial. Id. at 533.

       As in Brown, Shareef’s evidence in this case established that the standard of care required

a physical examination and specifically identified diagnostic procedures to detect Jaclyn’s

infection. According to his experts, prompt diagnosis and treatment on December 22 would

certainly, and on December 26 would likely, have saved her life. Accordingly, his evidence was

sufficient to defeat the defendants’ motion to strike.

       The defendants in this case did elicit additional testimony during cross-examination that a

jury may decide mitigates the weight or credibility of Shareef’s evidence. They may yet

persuade a jury, for example, that the symptoms that Jaclyn described when she spoke to Dr.

Levit on the telephone or exhibited when she presented at MJH were too ambiguous to

necessitate the response that Shareef’s expert witnesses testified the standard of care required.

Or they may yet, for example, persuade a jury that Dr. Levit cannot be liable because the

infection had progressed so far by December 26 that the hours between when he could have

treated her even if he had responded immediately, or when MJH could have prepared and

administered the triple-antibiotic cocktail, and when she received that treatment at UVAMC

would not have had a significant effect.



                                                 12
       But those and other factual questions were matters for the jury to decide based on their

evaluation of the weight and credibility of the parties’ evidence. On a motion to strike at the

conclusion of Shareef’s case-in-chief, the circuit court was required to view all of his evidence in

the light most favorable to him, presuming that the jury would believe it all and draw all logical

inferences from it in his favor. The court erred by failing to do so.

                                       III. CONCLUSION

       For these reasons set forth above, we hold that Shareef’s evidence that the defendants

departed from the standard of care and caused Jaclyn’s death was sufficient to establish a prima

facie case and survive a motion to strike at the conclusion of his case-in-chief. We will reverse

the circuit court’s judgment and remand for a new trial.

                                                                          Reversed and remanded.




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