 1   Present:    Carrico, C.J., Compton, Lacy, Hassell, Keenan, Koontz,
 2               JJ., and Poff, Senior Justice
 3
 4   MARY ESTELLA POWELL,
 5   EXECUTRIX OF THE ESTATE OF
 6   WILLIAM G. POWELL, JR., DECEASED
 7                                                OPINION BY
 8   v.   Record No. 990319             SENIOR JUSTICE RICHARD H. POFF
 9                                             January 14, 2000
10   ANDREW MARGILETH, M.D.
11
12
13          FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
14                        John W. Scott, Jr., Judge
15
16         This litigation commenced in January 1994 when William G.

17   Powell, Jr., (Powell) filed a motion for judgment against Dr. C.

18   R. Massey, III, and Dr. Andrew Margileth alleging medical

19   malpractice.   Following Powell's death in 1995, his widow, Mary

20   Estella Powell, qualified as executrix of his estate, and the

21   trial court converted the case into a wrongful death action.

22         At the first trial of the case, the executrix non-suited

23   Dr. Margileth, and the jury returned its verdict in favor of Dr.

24   Massey.    In April 1996, the executrix filed a motion for

25   judgment against Dr. Margileth alleging that his misdiagnosis

26   and treatment of his patient caused Powell's death from cancer-

27   related pneumonia.   At the second trial conducted in June 1998,

28   the trial court granted the defendant's motion to strike the

29   plaintiff's evidence, and we awarded the plaintiff an appeal

30   from the judgment entered on that ruling.
 1        We will review the chronology of the facts in evidence

 2   related to questions presented by the plaintiff's assignment of

 3   error.

 4        On January 9, 1992, Dr. Massey, a specialist in

 5   otolaryngology, measured a node in Powell's neck as 4 cm x 3 cm

 6   and ordered a CT scan.   As interpreted by a radiologist, the

 7   scan conducted January 11, 1992 indicated that the size of the

 8   "left cervical mass . . . is due to an enlarged internal jugular

 9   node which most likely is an abscess . . . ."

10        On January 14, 1992, Dr. Massey aspirated fluid from the

11   enlarged node.   Although he discussed the CT scan with Powell

12   and ordered cultures, he did not suggest a need for an

13   examination to rule out cancer.

14        Because Powell had told him that he had experienced some

15   exposure to cats, Dr. Massey referred Powell on January 21, 1992

16   to Dr. Margileth, an infectious disease specialist experienced

17   in the diagnosis and treatment of cat scratch disease.   On

18   January 27, 1992, Dr. Margileth performed tests for tuberculosis

19   and cat scratch disease and measured the "swelling . . . in the

20   left anterior superior neck" as 4.4 x 6 x 2.6 cm.   He advised

21   his patient that he had cat scratch disease and prescribed

22   antibiotics.   The results of the CT scan had been furnished to

23   Dr. Margileth.




                                       2
 1        On February 18, 1992, Dr. Massey palpated a nodule in

 2   Powell's neck which measured 4 x 2.8 cm.   Dr. Massey performed

 3   another examination on April 7, 1992 in the course of which he

 4   suggested the possibility of cancer.

 5        In June 1992, Powell discovered a second lump in his neck

 6   and in July went for help to the Veterans Administration Medical

 7   Center Hospital.   A needle aspiration of the two lumps diagnosed

 8   cancer representing a progression from stage III in January 1992

 9   when the CT scan was conducted to stage IV in July 1992.   Powell

10   underwent radiation therapy, surgery, and other treatment but

11   died of cancer three years later at the age of 40.

12        In the case of a wrongful death resulting from medical

13   malpractice, the plaintiff must prove a breach of the standard

14   of care and a proximate causal relationship between that breach

15   and the injury alleged.   Griffett v. Ryan, 247 Va. 465, 470, 443

16   S.E.2d 149, 151 (1994); see also St. George v. Pariser, 253 Va.

17   329, 484 S.E.2d 888 (1997); Blondel v. Hays, 241 Va. 467, 403

18   S.E.2d 340 (1991).

19        When ruling on a defendant's motion to strike the

20   plaintiff's evidence, the trial court must draw all reasonable

21   inferences the evidence may raise in favor of the plaintiff.

22   Hadeed v. Medic–24 Ltd., 237 Va. 277, 285-86, 377 S.E.2d 589,

23   593 (1989).   If it appears from the record that such inferences

24   are reasonable, then the issues concerning standards of care and


                                      3
 1   proximate cause are questions of fact to be determined by a

 2   jury.

 3           In a memorandum opinion dated October 6, 1998 explaining

 4   its decision to grant the defendant's motion to strike the

 5   plaintiff's evidence, the trial court held that "there is no

 6   evidence or reasonable inference that would allow a jury of

 7   reasonable persons to conclude that the Defendant's breaches of

 8   the standards of care proximately caused the decedent's

 9   injuries; adversely altered the required method of treatment; or

10   adversely affected his rate of survival."

11           Dr. Francois E. Holder, one of the plaintiff's expert

12   witnesses, testified that the defendant's misdiagnosis of cat

13   scratch disease caused his patient delay in diagnosis and

14   treatment of his cancer from January until July, and that if he

15   had been "informed of the possibility of cancer in January, and

16   options were offered in terms of biopsy for fine needle

17   aspirations, Mr. Powell would have had a diagnosis of cancer

18   probably the first week of February."    Asked whether the delay

19   was "a direct and proximate cause of the failure of Dr.

20   Margileth to comply with the required standard of care," Dr.

21   Holder answered, "Yes, it was."

22           Dr. M. Karim Ali, who had treated Powell at the VA

23   Hospital, testified as an expert in the staging, treatment, and

24   surgery of cancer.    Asked what would have been Powell's


                                        4
 1   "percentage chance of survival for 5 years" if he had "received

 2   him as a patient based on the January 11, 1992 CAT scan report,"

 3   which identifies the cancer as stage III, Dr. Ali said that

 4   Powell would have had "[a]round 75 percent" chance of surviving

 5   5 years compared to the "15 to 20 percent" chance he had in July

 6   1992.

 7           Dr. Oscar Tercilla, a professor at Medical College of

 8   Virginia, was qualified as an expert in the staging and

 9   treatment of cancer, estimating prognosis at the cancer stage,

10   and medical treatment caused by failure to make a timely

11   diagnosis.    Dr. Tercilla testified as follows:

12           If Mr. Powell had been treated in January as opposed to
13           July it is my opinion that he had a higher likelihood of
14           being controlled of this disease than he had when he
15           presented at the VA in July. Because of that, you would
16           have avoided his recurrence which occurred in July of 1993
17           with the tumor reappearing in his tonsil and subsequent
18           treatment that came from that.
19
20           Absent a recurrence, the witness agreed "[i]n all

21   likelihood" that Dr. Margileth's patient "would still be alive."

22           Dr. Barbara Kipreos, a pathologist at the VA center, was

23   asked her opinion whether, "if Dr. Margileth would have

24   requested a fine needle aspirate at the Mary Washington Hospital

25   pathology laboratory" in January 1992, "Mr. Powell's cancer

26   would have been diagnosed at that time."    In reply, the witness




                                        5
 1   said, "Yes, it is my opinion that it would have been diagnosed

 2   at that time." *

 3        We disagree with the trial court's ruling that "there is no

 4   evidence or reasonable inference that would allow a jury of

 5   reasonable persons to conclude that the Defendant's breaches of

 6   the standards of care proximately caused the decedent's injuries

 7   . . . or adversely affected his rate of survival."   Qualified

 8   experts in the field testified otherwise.

 9        We hold, therefore, that the trial court erred in granting

10   the defendant's motion to strike the plaintiff's evidence, and

11   we will reverse the judgment entered below and remand the case

12   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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