Present: All the Justices 

JAMES R. POLIQUIN, M.D., ET AL. 

v. Record No. 961719 

FELICIA DANIELS, ADMINISTRATRIX 

 OF THE ESTATE OF SAMUEL DANIELS, DECEASED 

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR. 

June 6, 1997 

M. ABEY ALBERT, M.D., ET AL. 

v. Record No. 961761 

FELICIA DANIELS, ADMINISTRATRIX 

OF THE ESTATE OF SAMUEL DANIELS, DECEASED 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Melvin R. Hughes, Jr., Judge 

 These two related medical malpractice cases present issues 

regarding (1) the testimony of expert witnesses, (2) the 

sufficiency of the evidence to support the trial court's 

judgment, and (3) the refusal of certain jury instructions. 

 I 

 Samuel Daniels (Daniels) died following surgery on June 13, 

1993. His widow, Felicia Daniels (the Plaintiff), qualified as 

administratrix of the estate and, thereafter, filed a motion for 

judgment against James R. Poliquin, M.D., a general surgeon, 

along with his professional corporation, Commonwealth General and 

Vascular Surgery, P.C. (collectively, Poliquin), and against M. 

Abey Albert, M.D., an anesthesiologist, along with his 

professional group, Midlothian Anesthesia Associates, Inc. 

(collectively, Albert). The Plaintiff alleged that Drs. Poliquin 

and Albert negligently breached the applicable standards of care 

and that their negligence proximately caused Daniels' death. 
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 The case was tried by a jury which returned a verdict in 

favor of the Plaintiff against Poliquin and Albert in the amount 

of $1,004,929.14. After considering the defendants' motions to 

set aside the verdict, the trial court overruled the motions, 

except to reduce the amount of the verdict to $1,000,000 in 

accordance with the statutory limitation on recovery. Code 

§ 8.01-581.15. On May 29, 1996, the trial court entered final 

judgment on the verdict as amended. Poliquin and Albert 

(collectively, the Defendants) appeal. 

 II 

 According to established law, we must view the evidence in 

the light most favorable to the Plaintiff, the prevailing party 

at trial. On June 12, 1993, Daniels went to a medical clinic for 

treatment of a perirectal abscess and associated pain and fever. 

 The clinic referred Daniels to the emergency room of JohnstonWillis Hospital for further evaluation. At the hospital, Daniels 

was examined by Dr. Poliquin who determined that the abscess 

required surgery. Dr. Poliquin admitted Daniels to the hospital 

and scheduled him for surgery the next morning. 

 Daniels was hypertensive, diabetic, and obese, and, because 

of the surgical risks associated with these conditions, Dr. 

Poliquin ordered, among other tests, an electrocardiogram (EKG) 

to detect whether Daniels had any pulmonary or cardiac diseases. 

 The EKG was performed on June 12, 1993, about 10:30 p.m., and 

Dr. Poliquin referred the EKG tracing to a cardiologist for 
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interpretation. 

 On the morning of June 13, Dr. Albert arrived at the 

hospital to administer the anesthesia for Daniels' surgery. Dr. 

Albert noted that Daniels was obese and had a history of 

hypertension and diabetes and that Daniels suffered from 

shortness of breath. Dr. Albert also noted that the EKG tracing, 

which had not yet been interpreted by a cardiologist, showed 

signs of abnormality, but he neither reported that fact to Dr. 

Poliquin nor sought an interpretation of the tracing by a 

cardiologist. 

 The surgery, performed by Dr. Poliquin, proceeded as 

scheduled, and Daniels was placed under general anesthesia. At 

the conclusion of the surgery, Dr. Albert noticed that Daniels 

was experiencing difficulty breathing, and he attempted to 

intubate Daniels again. Daniels, however, became unresponsive, 

went into cardiac arrest, and, despite resuscitation efforts, 

died. 

 Later on the morning of June 13, a cardiologist interpreted 

Daniels' EKG tracing and noted that it showed that Daniels 

possibly had previously suffered a myocardial infarction; i.e., 

heart attack. According to an autopsy, Daniels had suffered a 

silent myocardial infarction at least one week prior to his 

death.1

 

 1At trial, an expert witness explained that a silent 

myocardial infarction "refers to the fact that the patient does 

not feel pain . . . . It is typically found . . . in patients 

who are diabetics . . . . So it's not uncommon for a diabetic 
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(..continued) 

 At trial, Dr. Stephen Carl Rerych, a general surgeon, Dr. 

Richard J. Hart, Jr., a cardiologist, and Dr. Brian Gerard 

McAlary, an anesthesiologist, were called by the Plaintiff as 

expert witnesses. They explained that surgery under general 

anesthesia places stressful demands on the heart. They further 

explained that a healthy heart tolerates these stresses, but a 

patient who has had a myocardial infarction is at risk during 

surgery. 

 Dr. Rerych, over the Defendants' objection, testified 

regarding the standard of care required of a general surgeon. He 

stated that the standard of care required a surgeon to know prior 

to surgery the results of tests ordered and that this was 

particularly important for a patient like Daniels, with a high 

risk for undiagnosed heart disease. Therefore, before surgery on 

such patients, a surgeon must order an EKG and receive an 

interpretation of the results by a qualified physician. Dr. 

Rerych opined that Dr. Poliquin's failure to ascertain the 

results of the EKG prior to performing the surgery was a 

violation of a surgeon's standard of care. 

 Dr. Hart testified that diabetics are at risk for silent 

myocardial infarctions and, therefore, a proper interpretation of 

Daniels' EKG by a cardiologist was essential. Such an 

interpretation would have led to a cardiac evaluation which would 

not to have chest pain, and, yet, they have a major heart problem 

going on." 
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have shown the extent of the damage to Daniels' heart from the 

silent myocardial infarction. With this knowledge, Drs. Poliquin 

and Albert could have explored other treatment options that, in 

Dr. Hart's opinion, would have prevented Daniels' death. 

 Dr. McAlary was the Plaintiff's expert witness on the 

standard of care for an anesthesiologist treating a patient like 

Daniels. Dr. McAlary testified that an anesthesiologist must be 

sensitive to the possibility that a diabetic may have had a 

silent myocardial infarction and may have heart disease, 

particularly when the patient is also hypertensive and obese. He 

also testified that there were a variety of available monitoring 

options that would have provided the surgical team with early 

indications of Daniels' heart failure and that such early 

indications would have led to immediate treatment. Dr. McAlary 

opined that Daniels would have survived the surgery had 

appropriate actions been taken for his condition. According to 

Dr. McAlary, Dr. Albert breached the standard of care required of 

an anesthesiologist by failing to know the interpretation of the 

EKG tracing, to consult with a cardiologist which consultation 

would have led to invasive monitoring, and to use invasive 

monitoring of Daniels during surgery. 

 III 

 Following a voir dire hearing, the trial court qualified Dr. 

Rerych as an expert witness on the standard of care for a general 

surgeon in Virginia. Poliquin contends on appeal, as at trial, 
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that the trial court erred in qualifying Dr. Rerych. 

 Code § 8.01-581.20 provides for a statewide standard of care 

in medical malpractice cases unless a health care provider proves 

that a local standard of care is more appropriate. Neither the 

General Assembly nor this Court has ever recognized a nationwide 

standard of care. Code § 8.01-581.20 provides, in pertinent 

part, as follows: 

 [I]n any action against a physician . . . to recover 

damages alleged to have been caused by medical 

malpractice . . . in this Commonwealth, the standard of 

care by which [the alleged malpractice is] to be judged 

shall be that degree of skill and diligence practiced 

by a reasonably prudent practitioner in the field of 

practice or specialty in this Commonwealth and the 

testimony of an expert witness, otherwise qualified, as 

to such standard of care, shall be admitted . . . . 

Any physician who is licensed to practice in Virginia 

shall be presumed to know the statewide standard of 

care in the specialty or field of medicine in which he 

is qualified and certified. This presumption shall 

also apply to any physician who is licensed in some 

other state of the United States and meets the 

educational and examination requirements for licensure 

in Virginia. 

(Emphasis added.) 

 Dr. Rerych received a medical degree from Columbia 

University College of Physicians and Surgeons in New York. 

Thereafter, he attended a surgical residency program in North 

Carolina at Duke University Medical Center. From 1985 to 1986, 

Dr. Rerych was Chief Resident in General and Thoracic Surgery at 

Duke University Medical Center, and, from 1986 to 1991, he served 

as Assistant Clinical Professor of General, Thoracic, and 

Vascular Surgery at the same facility. Dr. Rerych is a board 
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certified general surgeon. He is licensed to practice general 

surgery in North Carolina and has practiced his specialty in 

North Carolina since 1988. 

 During voir dire, Dr. Rerych testified that he was "clearly 

eligible" for licensure in Virginia. Additionally, the trial 

court received into evidence a letter to that effect from the 

Commonwealth's Department of Health Professionals. Dr. Rerych 

also testified that he knew "the standard of care that would have 

prevailed in Virginia in June of 1993 with respect to the issues 

in this case." However, the doctor, when asked if he was making 

an "assumption . . . with regard to the [standard of] care in 

Virginia," answered, "A strong assumption." 

 Poliquin asserts that, even if Dr. Rerych met the 

requirements for licensure in Virginia, his testimony rebutted 

the statutory presumption and showed that he did not know the 

standard of care in Virginia. We do not agree. The voir dire

hearing was extensive, and, at the conclusion thereof, the trial 

judge stated: "I'm going to overrule the objection[;] the 

witness is qualified by the thinnest of reeds under the statute." 

 Thus, the trial court weighed all the evidence before it, 

applied the statutory presumption, and concluded that Dr. Rerych 

was qualified to testify as to the standard of care in this 

Commonwealth. 

 The question whether a witness is qualified to express an 

expert opinion rests within the sound discretion of the trial 
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court. King v. Sowers, 252 Va. 71, 78, 471 S.E.2d 481, 485 

(1996). We cannot say, based upon the record before us, that the 

trial court abused its discretion in qualifying Dr. Rerych as an 

expert witness. 

 IV 

 A 

 Both Albert and Poliquin contend that no evidence was 

presented to show that their alleged negligence proximately 

caused Daniels' death. Thus, they assert, the trial court erred 

in overruling their motions to strike the evidence and to set 

aside the verdict. 

 In medical malpractice cases, as with other tort litigation, 

issues of negligence and proximate cause are ordinarily questions 

of fact for a jury. Brown v. Koulizakis, 229 Va. 524, 531, 331 

S.E.2d 440, 445 (1985). Only when reasonable minds could not 

differ about such issues do they become questions to be decided 

by a court. Hadeed v. Medic-24, Ltd., 237 Va. 277, 285, 377 

S.E.2d 589, 593 (1989). In viewing the evidence, an appellate 

court must give the prevailing party at trial the benefit of all 

substantial conflict in the evidence and all inferences 

reasonably deducible therefrom. Id. at 280-81, 377 S.E.2d at 

590. Thus, a verdict should not be set aside unless it is 

contrary to the evidence or without evidence to support it. Code 

§ 8.01-430; Brown, 229 Va. at 531, 331 S.E.2d at 445. 

 In the present case, the Defendants contend that the 
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evidence, at most, showed only what might have occurred, rather 

than what necessarily would have occurred had the Plaintiff's 

experts' recommended standards of care been followed. They 

assert that there was a complete lack of expert testimony that 

their alleged negligence caused Daniels' death. We do not agree. 

 In medical malpractice death cases, a plaintiff is not 

required to prove to a certainty that the patient would have 

survived had certain actions been taken. Brown, 229 Va. at 532, 

331 S.E.2d at 446; Whitfield v. Whittaker Mem. Hospital, 210 Va. 

176, 184, 169 S.E.2d 563, 569 (1969). A defendant physician's 

action or inaction which "has destroyed any substantial 

possibility of the patient's survival" is a proximate cause of 

the patient's death. Brown, 229 Va. at 532, 331 S.E.2d at 446; 

accord Bryan v. Burt, 254 Va. ___, ___, ___ S.E.2d ___, ___ 

(1997) (this day decided); Whitfield, 210 Va. at 184, 169 S.E.2d 

at 568. 

 In the present case, each of the Plaintiff's experts 

testified that it was his opinion to a reasonable degree of 

medical probability that, had the Defendants known what they 

should have known about Daniels' condition prior to surgery and, 

thereafter, employed the appropriate procedures during surgery, 

Daniels would have survived the surgery. Therefore, we think the 

trial court properly submitted the issue of proximate cause to 

the jury.2

 

 2On brief, Poliquin presents the question whether the 

Plaintiff showed a breach of the standard of care for general 
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 B 

 The Defendants further contend that the trial court erred in 

allowing the testimony of Norman Fayne Edwards, Plaintiff's 

economic damages expert. The Defendants objected to Dr. Edwards' 

testimony because, in formulating the present value of Daniels' 

lifetime income, Dr. Edwards based his calculations on life 

expectancy tables contained in Code § 8.01-419 and on tables 

published by the United States Department of Labor (DOL). They 

assert that the Plaintiff's own evidence contradicted the 

assumptions which served as the basis for Edwards' opinions. 

 According to Dr. Edwards, Daniels, who was 38 years old when 

he died, had a life expectancy of 34.6 years pursuant to Code 

§ 8.01-419. Under the DOL tables, Daniels had a work life 

expectancy of 24 years, or to age 63. 

 Dr. Hart testified that, had Daniels survived the surgery, 

he would have lived no more than 10-15 years, unless he made 

significant lifestyle changes. If he had made such changes, 

including losing 100 pounds within a year and exercising, his 

life expectancy would have been 20-25 years. 

 Code § 8.01-419 provides that the table of life expectancy 

set forth therein shall be received "as evidence, with other 

evidence as to the health, constitution and habits of [the] 

person" in issue. (Emphasis added.) As we said in Edwards v. 

(..continued) 

surgeons in the Commonwealth. Poliquin, however, did not file an 

assignment of error relating to this issue, and therefore, we 

will not consider it on appeal. Rule 5:21(i). 
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Syrkes, 211 Va. 600, 602, 179 S.E.2d 902, 903 (1971), 

 it is the duty of the court, when so requested in an 

action for wrongful death, to tell the jury that a 

mortality table introduced into evidence is to be 

considered . . . along with all the other evidence 

relating to the health, habits and other circumstances 

of the person which may tend to influence his life 

expectancy. 

 In the present case, the trial court properly instructed the 

jury, in accordance with Edwards, that it "should consider 

[Daniels' life expectancy of 34.6 years] along with any other 

evidence relating to the health, constitution, and habits of 

. . . Daniels in determining his life expectancy." Thus, based 

upon the evidence before it, the jury could determine Daniels' 

life expectancy in formulating the present value of his lifetime 

income. We hold, therefore, that the trial court did not err in 

allowing Dr. Edwards' testimony. 

 C 

 Finally, the Defendants contend that the trial court erred 

in refusing their tendered instructions B, C, and D. We think 

the legal principles set forth in those instructions were 

adequately and objectively covered in granted instructions 1, 13, 

and 17. "When granted instructions fully and fairly cover a 

principle of law, a trial court does not abuse its discretion in 

refusing another instruction relating to the same legal 

principle." Stockton v. Commonwealth, 227 Va. 124, 145, 314 

S.E.2d 371, 384, cert. denied, 469 U.S. 873 (1984); accord

Hubbard v. Commonwealth, 243 Va. 1, 16, 413 S.E.2d 875, 883 
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(1992). Therefore, we conclude that the jury was fully and 

fairly instructed and the trial court did not abuse its 

discretion in refusing instructions B, C, and D. 

 V 

 In sum, we hold that the trial court did not err in 

qualifying Dr. Rerych as an expert witness, submitting the 

proximate cause issue to the jury, allowing Dr. Edwards' 

testimony, and refusing certain jury instructions. Accordingly, 

we will affirm the trial court's judgment. 

Affirmed.