Radiologist Hung Up the Phone afer being put on hold

Radiologist who knew life threatening condition and hung up the phone when he got put on hold cannot blame the internist for his subsequent claimed medical malpractice. (Case excerpts.)

Williams v. Le, 276 Va. 161, 662 S.E.2d 73 (2008)

IN THE SUPREME COURT OF VIRGINIA

TAMEIKA WILLIAMS, ADMINISTRATOR
AND PERSONAL REPRESENTATIVE OF
THE ESTATE OF TAWANDA WILLIAMS, DECEASED
v.
CONG LE, M.D.

Decided: June 6, 2008

Present: All the Justices

In a wrongful death action arising from alleged medical malpractice, the trial court erred in instructing the jury on superseding intervening causation. This doctrine does not operate to exempt a defendant from liability if the purportedly intervening cause is put into operation by the defendant's wrongful act or omission. In this case it could not be said that defendant's alleged negligence did not contribute “in the slightest degree” to the death of plaintiff's decedent. The trial court therefore erred in granting the superseding intervening causation instruction. The judgment is reversed and the case remanded for a new trial.

Decedent's primary care physician ordered Doppler ultrasound imaging of her right lower leg. The sonogram technician who performed the imaging called the defendant doctor, a diagnostic radiologist, and sent him the image of decedent's leg via electronic mail. The technician believed that the images showed a deep vein thrombosis in the leg, and she told defendant that the patient had been informed that there was a “positive finding,” and that she should see her primary care physician as soon as possible. Upon reviewing the images, defendant found a deep vein thrombosis in the patient's right leg, placing her at risk for pulmonary embolism, a life-threatening condition in which pieces of a deep vein clot break off and slip out of the vasculature of the legs and travel into the lungs. He placed a telephone call to decedent's primary physician, was put “on hold,” and failed to leave a message. Defendant drew a picture showing the location of blood clots in the patient's leg, and placed this with his findings in a “wet read box” in his office so that it could be sent to decedent's primary care physician via facsimile. The next morning, the primary care physician's clinical assistant requested and received this faxed report, entered it into a computerized patient information system for medical records and non-urgent messages, and sent a message to the primary care physician that the test results were “in the computer.” The patient missed an appointment a few days later, and died before the primary care physician read the message or examined the radiologist's report. At trial in this action plaintiff's evidence indicated that the standard of care requires a radiologist who makes this kind of diagnosis to have “direct contact” with the physician who ordered the study, or one of that doctor's covering physicians or nurses. Such a contact would have resulted in anti-coagulant treatment for the patient which would likely have prevented her death. Defendant contended that sending the report via facsimile was within the standard of care, and that the primary care physician's failure to check the report broke the chain of causation. At the conclusion of the evidence, over plaintiff's objection, the trial judge gave the jury an instruction on superseding intervening causation. The jury returned a defense verdict. This appeal followed.

* * *

Dr. Le argued two separate theories at trial to avoid liability. First, he argued that he was not liable because the standard of care did not require him to make direct contact with Dr. McClain, a member of Dr. McClain's team, or the patient herself. In furtherance of this theory, Dr. Le's expert testified that communication directly with a physician when reporting non-routine ultrasound results was not required, and that sending test results by facsimile was within the standard of care. Second, Dr. Le argued that even if he was negligent [Page 167] for not making direct contact with Dr. McClain, a member of Dr. McClain's team, or Williams, his negligence was not a proximate cause of Williams' death because Dr. McClain's subsequent negligence in failing to check the diagnostic report completely broke the chain of events between Dr. Le's negligence and Williams' death.

* * *

On this record, it cannot be said that Dr. Le's alleged negligence was not contributing “in the slightest degree” to the death of Williams. The trial court therefore erred in [Page 168] granting the superseding intervening causation instruction. “[W]here . . . an instruction [has] been erroneously submitted to the jury and the record does not reflect whether such . . . instruction formed the basis of the jury's verdict, we must presume that the jury relied on such . . . instruction in making its decision.” Monahan, 271 Va. at 635, 628 S.E.2d at 338 (quoting Johnson v. Raviotta, 264 Va. 27, 39, 563 S.E.2d 727, 735 (2002)).

III. Conclusion

For the reasons stated, the judgment of the trial court will be reversed and the case remanded for a new trial.

Reversed and remanded.

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