Present: All the Justices 

WALTER ATKINSON, ADMINISTRATOR OF THE 

 ESTATE OF RUBY E. ATKINSON, DECEASED 

 OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 972694 November 6, 1998 

DANIEL W. SCHEER, D.O. 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 In this appeal of a judgment in a medical negligence 

action, we consider whether the defendant was entitled to 

present evidence that another doctor, who is not a party to 

this litigation, breached the standard of care owed to a 

patient. 

 Walter Atkinson, administrator of the estate of Ruby E. 

Atkinson (Atkinson), filed a motion for judgment against 

Daniel W. Scheer, a doctor of osteopathic medicine. The 

estate alleged that Dr. Scheer breached the standard of care 

owed to Atkinson and that her death was caused by Dr. Scheer's 

negligence. Dr. Scheer filed a grounds of defense and denied 

any acts of negligence. 

 During a jury trial, Dr. Scheer was permitted to ask the 

plaintiff's expert witness, over the plaintiff's objection, 

whether another physician who had also treated Atkinson had 

committed acts of negligence. The trial court permitted Dr. 

Scheer to elicit such testimony, and at the conclusion of the 
trial, the jury returned a verdict in favor of Dr. Scheer. 

The plaintiff appeals. 

 We will state the facts and all reasonable inferences 

therefrom in favor of Dr. Scheer, the recipient of a jury 

verdict confirmed by the trial court. Atkinson began to 

experience symptoms of a heart attack around 5:00 p.m. on 

September 12, 1994. She had pain and nausea, and she vomited. 

She arrived at Richmond Memorial Hospital's emergency room at 

6:50 p.m., and she complained of pain in her chest, neck, and 

left shoulder. 

 An emergency room nurse placed Atkinson on oxygen, 

extracted a blood sample from her, and connected her to a 

continuous heart monitor. The nurse gave Atkinson certain 

fluids intravenously and attached her to an 

electrocardiograph. Dr. Scheer examined Atkinson around 7:15 

p.m., performed a physical evaluation, and ordered certain 

diagnostic tests. 

 Dr. Scheer testified that even though he did not make a 

final diagnosis of Atkinson on September 12, he made a working 

diagnosis that "her etiology was probably cardiac in origin, 

probably cardiac ischemia." Dr. Scheer stated that a working 

diagnosis is "the one most likely to be what was going on with 

the person." Dr. Scheer described an ischemia as "a lack of 

oxygen going to the heart." 

2
 Subsequently, Dr. Scheer ordered that a patch of 

nitroglycerin paste be placed on Atkinson's chest to be 

absorbed through her skin into her body. The nitroglycerin 

paste dilated her blood vessels, thereby reducing the strain 

on her heart which, in turn, decreased her heart's need for 

oxygen. According to Dr. Scheer, after the nitroglycerin 

paste was administered, Atkinson's pain abated. Atkinson's 

daughter, however, testified that her mother continued to 

experience pain. 

 Dr. Scheer ordered a blood test to ascertain the presence 

of enzymes in Atkinson's body which would have been indicative 

of heart damage. Dr. Scheer had not received the results of 

the blood test when his emergency room shift ended at 10:00 

p.m. 

 Dr. Scheer also contacted Dr. Selwyn Goodwin by 

telephone. Dr. Goodwin was a physician who was "on call" for 

Atkinson's regular treating physician. Dr. Goodwin was aware 

of Atkinson's past history of pulmonary embolism, a condition 

which could also cause chest pain. Dr. Goodwin suggested to 

Dr. Scheer that he order a ventilation protrusion scan which 

would detect the presence of this condition. This scan is 

commonly referred to as a VQ scan. The scan was performed, 

but the results were not available when Dr. Scheer's shift 

ended. 

3
 When Dr. Scheer left the emergency room at about 10:00 

p.m., Dr. Gayle Wampler-Adams, another emergency room 

physician, began treatment of Atkinson. Dr. Wampler-Adams 

testified that it was her "recollection . . . that [Atkinson] 

had been cleared for discharge, that we were awaiting VQ scan 

results as a final diagnostic test." 

 Dr. Wampler-Adams received the results of the VQ scan, 

which were negative. Dr. Wampler-Adams spoke with Atkinson, 

performed a physical examination, and reviewed the EKG and 

laboratory results available to her. Dr. Wampler-Adams noted 

in the emergency room record that her diagnosis of Atkinson's 

condition was "[a]typical chest pain, probable GE Reflux." 

Dr. Wampler-Adams also spoke by telephone with Dr. Goodwin. 

Dr. Wampler-Adams discharged Atkinson at 11:40 p.m. that 

night. 

 Dr. Wampler-Adams testified, without contradiction, that 

she relied upon Dr. Scheer's "workup" of Atkinson when making 

the decision to discharge Atkinson. Shortly after her 

discharge, Atkinson began to experience symptoms associated 

with a heart attack. She began to vomit, and she complained 

of pain in her shoulder "down through her arm." Her regular 

physician diagnosed her condition the next day as "a heart 

attack in progress," and she was admitted to Richmond Memorial 

4
Hospital. She died on October 4, 1994, as a result of her 

heart attack. 

 Dr. Scheer did not present any expert witnesses at trial. 

His expert witnesses were disqualified from testifying in a 

pretrial order. 

 Dr. David Munter, who qualified as an expert witness on 

behalf of the plaintiff on the subject of "emergency room care 

medicine," testified within a reasonable degree of medical 

certainty that Dr. Scheer breached the standard of care owed 

to Atkinson. Specifically, Dr. Munter testified that Dr. 

Scheer had enough information to admit Atkinson as a patient 

to the hospital and that he breached the standard of care in 

failing to do so. Dr. Munter also opined that Dr. Scheer 

should have been more aggressive in his treatment of Atkinson 

and that Atkinson would have "had a very high probability of 

surviving had she been admitted" to the hospital on the 

evening she was treated in the emergency room and that her 

"high likelihood of survivability was lost." 

 During Dr. Scheer's cross-examination of Dr. Munter, the 

trial court permitted him to ask, over the plaintiff's 

objection, whether Dr. Wampler-Adams, who had settled the 

estate's claims against her, breached the standard of care 

owed to Atkinson. Dr. Munter testified that Dr. Wampler-Adams 

had breached the standard of care by discharging Atkinson. 

5
 Atkinson, relying upon Jenkins v. Payne, 251 Va. 122, 465 

S.E.2d 795 (1996), argues that the trial court erred by 

permitting Dr. Scheer to introduce evidence at trial that Dr. 

Wampler-Adams was negligent in her care and treatment of 

Atkinson. Dr. Scheer responds that the trial court properly 

admitted this testimony in evidence because Dr. Wampler-Adams' 

conduct was negligent and such conduct was a superseding 

intervening cause of Atkinson's injury. We disagree with Dr. 

Scheer. 

 In Jenkins, we considered "whether the trial court erred 

in excluding from the jury's consideration (1) opinion 

evidence that another physician, who had settled the 

plaintiff's claim against him, was negligent in his treatment 

of the decedent, and (2) the defendants' argument that the 

settling physician was the sole proximate cause of the 

decedent's death." Jenkins, 251 Va. at 124, 465 S.E.2d at 

796. 

 Veronica L. Payne filed a motion for judgment against 

Harold S. Jenkins, M.D., Jill W. York, R.N., P.N.P., Barry S. 

Rothman, M.D., and Doctors Rothman, Grapin, and McKnight, P.C. 

Payne alleged that these health care providers breached the 

applicable standards of care owed to her. Payne died before 

trial, and her husband, Troy R. Payne, the personal 

representative of her estate, was substituted as plaintiff, 

6
and the motion for judgment was amended to allege a cause of 

action for wrongful death. 

 Veronica Payne had Paget's Disease, which is a cancer of 

the nipple and milk ducts. While this cancer remains noninvasive, it grows slowly and is highly curable. There is 

about a 90% survival rate for patients with Paget's Disease 

who receive treatment before the cancer becomes invasive. 

 Veronica Payne first sought treatment for her breast 

abnormalities when she was examined by York, a nurse 

practitioner working under the supervision of Dr. Jenkins. 

She was seen and treated twice by York, who referred her to a 

dermatologist. Subsequently, Payne sought treatment from Dr. 

Rothman, a gynecologist, who prescribed oral antibiotics and a 

topical steroid to treat problems she was having with her 

breast. Id. at 125-26, 465 S.E.2d at 797. 

 Payne made several additional visits to both York and Dr. 

Rothman because she was concerned about sores on her breast 

which had not healed properly. Subsequently, York examined 

Payne and discovered the presence of multiple masses in her 

breast, and Payne was referred to a surgical oncologist, who 

determined that she had aggressive cancer which had spread to 

her lymph nodes. An expert witness testified at trial that 

Payne's death was the result of a misdiagnosed breast cancer 

and that she would have had a 10-year survival probability of 

7
about 90% had her cancer been diagnosed when it was still noninvasive. 

 Before trial, the personal representative of Payne's 

estate settled his claim against Dr. Rothman and his 

professional corporation. The plaintiff made a motion in 

limine requesting that the trial court exclude any opinion 

evidence that Dr. Rothman was negligent in his treatment of 

Veronica Payne. The defendants objected, asserting that their 

defense would be based on a theory that Dr. Rothman's 

negligence was the sole proximate cause of Veronica Payne's 

death. The trial court ultimately granted the motion, ruling 

that Dr. Rothman's conduct was "at the very best . . . 

concurrent negligence as opposed to [superseding negligence]." 

Id. at 124, 465 S.E.2d at 796. 

 On appeal, the defendants in Jenkins argued that the 

trial court erred in refusing to permit them to present 

testimony that Dr. Rothman breached the standard of care owed 

to Payne because there was evidence that Dr. Rothman was the 

sole proximate cause of Veronica Payne's death. Rejecting 

their contentions, we stated the following principles which 

are equally pertinent here. 

"Issues of negligence and proximate causation 

ordinarily are questions of fact for the jury's 

determination. Brown v. Koulizakis, 229 Va. 524, 

531, 331 S.E.2d 440, 445 (1985). A court decides 

these issues only when reasonable persons could not 

8
differ. Hadeed v. Medic-24, Ltd., 237 Va. 277, 285, 

377 S.E.2d 589, 593 (1989). 

 "'The proximate cause of an event is that act 

or omission which, in natural and continuing 

sequence, unbroken by an efficient intervening 

cause, produces the event, and without which that 

event would not have occurred.' Beale v. Jones, 210 

Va. 519, 522, 171 S.E.2d 851, 853 (1970). There may 

be more than one proximate cause of an event. 

Panousos v. Allen, 245 Va. 60, 65, 425 S.E.2d 496, 

499 (1993). 

 "In order to relieve a defendant of liability 

for his negligent act, the negligence intervening 

between the defendant's negligent act and the injury 

must so entirely supersede the operation of the 

defendant's negligence that it alone, without any 

contributing negligence by the defendant in the 

slightest degree, causes the injury. Id.; Coleman

v. Blankenship Oil Corp., 221 Va. 124, 131, 267 

S.E.2d 143, 147 (1980); City of Richmond v. Gay, 103 

Va. 320, 324, 49 S.E. 482, 483 (1905). Thus, a 

superseding cause of an injury 'constitutes a new 

effective cause and operates independently of any 

other act, making it and it only the proximate cause 

of injury.' Maroulis v. Elliott, 207 Va. 503, 511, 

151 S.E.2d 339, 345 (1966)." (Emphasis added). 

Jenkins, 251 Va. at 128-29, 465 S.E.2d at 799. 

We applied these principles in Jenkins, and we held that 

reasonable persons could not conclude from the evidence that 

Dr. Rothman's negligence alone, without any contributing 

negligence by the defendants in the slightest degree, caused 

Payne's death. 

 We also note that we stated in Richmond v. Gay, 103 Va. 

320, 324, 49 S.E. 482, 483 (1905): 

"To be a superseding cause, whether intelligent or 

not, it must so entirely supersede the operation of 

the defendant's negligence, that it alone, without 

9
the defendant's contributing negligence thereto in 

the slightest degree, produces the injury." Accord

Panousos v. Allen, 245 Va. 60, 64-65, 425 S.E.2d 

486, 499 (1993); Philip Morris, Inc. v. Emerson, 235 

Va. 380, 397, 368 S.E.2d 268, 277 (1988); Cox v. 

Mabe, 214 Va. 705, 708, 204 S.E.2d 253, 256 (1974); 

Savage Truck Line v. Traylor, 193 Va. 579, 585-86, 

69 S.E.2d 478, 482 (1952); Jefferson Hospital, Inc.

v. Van Lear, 186 Va. 74, 81, 41 S.E.2d 441, 444 

(1947). 

 Applying the principles that we enunciated in Jenkins and 

Gay, we hold, as a matter of law, that Dr. Wampler-Adams' 

conduct was not a superseding intervening cause of Atkinson's 

injury and, thus, the trial court erred by permitting Dr. 

Scheer to elicit testimony of Dr. Wampler-Adams' negligence. 

Dr. Scheer sought to relieve himself of liability for his 

purported negligent acts because of a claimed superseding 

intervening cause. Therefore, he was required to prove that 

Dr. Wampler-Adams' failure to admit Atkinson to the hospital 

entirely superseded the operation of Dr. Scheer's own alleged 

negligence so that Dr. Wampler-Adams' negligence alone, 

without any contributing negligence, even in the slightest 

degree by Dr. Scheer, caused Atkinson's injuries. Dr. Scheer 

failed to meet this burden. 

 The uncontradicted evidence of record demonstrates that 

Dr. Scheer's alleged negligence contributed at least "in the 

slightest degree" to Atkinson's death because Dr. WamplerAdams testified without contradiction that she relied upon Dr. 

10
Scheer's "workup" when she made the decision to discharge 

Atkinson. Even though Dr. Wampler-Adams, just as Dr. Rothman 

in Jenkins, had the last opportunity to take acts which would 

have substantially increased the patient's probability of 

survival, Dr. Wampler-Adams' failure to act did not entirely 

sever the chain of proximate causation set in motion by Dr. 

Scheer's alleged negligence. 

 Finding no merit in Dr. Scheer's remaining arguments, we 

will reverse the judgment of the trial court and remand this 

case for a new trial. 

Reversed and remanded. 

JUSTICE KOONTZ, with whom JUSTICE COMPTON and JUSTICE LACY 

join, dissenting. 

 I respectfully dissent. 

 The parties agree on appeal, as they did at trial, that 

the broad issue to be resolved is whether our decision in 

Payne v. Jenkins, 251 Va. 122, 465 S.E.2d 795 (1996), is 

controlling in the factual context of the present case. The 

specific issue presented is whether it can be properly 

determined as a matter of law that the conduct of Dr. WamplerAdams was not a superseding intervening cause or the sole 

proximate cause of Ruby Atkinson’s death, or whether that 

conduct created an issue of fact with regard to causation to 

be determined by the jury. I dissent because the majority 

11
resolves that issue as a matter of law and, although 

inadvertently, effectively invades the province of the jury. 

 As we initially noted in Jenkins, ordinarily issues of 

negligence and proximate causation are questions of fact for 

the jury’s determination and only become questions of law when 

reasonable persons could not differ. “In order to relieve a 

defendant of liability for his negligent act, the negligence 

intervening between the defendant’s negligent act and the 

injury must so entirely supersede the operation of the 

defendant’s negligence that it alone, without any contributing 

negligence by the defendant in the slightest degree, causes 

the injury.” Jenkins, 251 Va. at 129, 465 S.E.2d at 799. 

 Guided by these well established principles, we held in 

Jenkins that two medical practitioners were not entitled to 

present opinion evidence that the negligence of a third 

defendant, against whom claims had been nonsuited following 

settlement of the claims against him, was the sole proximate 

cause of the patient’s death. In that case, the evidence 

showed that all of the defendants concurrently treated the 

patient and were subject to the same standard of care of the 

patient. Therefore, the evidence would not support a finding 

that only the nonsuited defendant’s negligence contributed to 

the patient’s death. Id. Accordingly, we agreed with the 

trial court that while evidence establishing the facts 

12
surrounding the treatment of the patient by the nonsuited 

defendant was admissible, id. at 124 n.1, 465 S.E.2d 796 n.1, 

expert opinion as to whether he had breached the standard of 

care in his treatment of the patient was irrelevant to the 

issue of whether the defendants also were negligent in their 

treatment of the patient. 

 I begin my analysis by noting the obvious distinction 

between the factual context in which the causation issue 

arises in the present case and that existing in Jenkins. 

Unlike Jenkins, the present case does not involve concurrent 

medical treatment of a mutual patient. Here, Dr. Scheer and 

Dr. Wampler-Adams, while subject to the same standard of care 

in their treatment of Atkinson, did not concurrently treat 

her. Rather, Dr. Munter’s testimony established that, 

consistent with the standard of care for patients in the 

emergency room, Scheer’s treatment of Atkinson terminated at 

the end of Scheer’s shift in the emergency room, and Atkinson 

thereafter became solely the patient of Wampler-Adams. 

 This factual distinction is significant. This is 

particularly so in light of plaintiff’s theory of liability 

and additional undisputed facts in this case. The thrust of 

plaintiff’s theory of liability is that Dr. Scheer was 

negligent in failing to diagnose Atkinson’s cardiac condition 

and, moreover, in failing to promptly admit her to the 

13
hospital for appropriate intensive cardiac care treatment. 

Indeed, plaintiff called Dr. Munter, as an expert witness, in 

support of that theory of liability. Dr. Munter, as noted by 

the majority, opined that Dr. Scheer was negligent in not 

admitting Atkinson to the hospital and that her very high 

probability of survivability was lost because she was not 

admitted to the hospital on the evening she was treated in the 

emergency room. 

 However, Dr. Munter did not testify that this probability 

of survivability was lost solely as a result of Dr. Scheer’s 

failure to admit Atkinson to the hospital. At that point in 

the succession of events to which Dr. Munter’s testimony 

related, it is undisputed that when Dr. Scheer terminated his 

treatment of her, Atkinson remained in the emergency room. In 

addition, it is undisputed that Atkinson’s condition was then 

stable. Plaintiff’s other expert witness, Dr. Archer 

Baskerville, a board certified cardiologist, testified that 

Atkinson had suffered an “incomplete heart attack” before 

arriving at the emergency room and that the application of 

nitroglycerin stopped the heart attack for the period during 

which it was applied. Finally, it is also undisputed that Dr. 

Wampler-Adams did not admit Atkinson to the hospital, but, 

rather, after reviewing Dr. Scheer’s notes on Atkinson’s chart 

and the results of prior tests, conducting a physical 

14
examination, and receiving the negative results from the VQ 

scan, she discharged Atkinson with what proved to be an 

erroneous diagnosis of “[a]typical chest pain, probable GE 

Reflux.” 

 On cross-examination, Dr. Munter conceded that it was not 

a breach of the standard of care for Dr. Scheer to turn the 

treatment of Atkinson over to Dr. Wampler-Adams at the end of 

his shift, but “it should never have reached that point.” As 

Dr. Scheer’s counsel proceeded to question Dr. Munter about 

Dr. Wampler-Adams’ treatment of Atkinson, plaintiff objected, 

asserting that “[t]he case is not about Dr. Adams.” Dr. 

Scheer contended that he was attempting to show a superseding 

cause arising from the negligence of Dr. Wampler-Adams. 

Plaintiff renewed the motion in limine and the trial court 

replied, “I think that’s relevant,” and noted plaintiff’s 

objection. Dr. Munter then testified that Dr. Wampler-Adams 

had a duty to conduct her own examination and evaluation of 

the patient and that, based on the information available, Dr. 

Wampler-Adams or “anybody associated with this case in the 

emergency department should have admitted” Atkinson. 

 It is then in this factual context, in contrast to that 

in Jenkins, that the majority holds, as a matter of law, that 

Dr. Wampler-Adams’ conduct was not a superseding intervening 

cause of Atkinson’s death and, thus, that the trial court 

15
erred by permitting Dr. Scheer to elicit testimony of Dr. 

Wampler-Adams’ negligence. The majority correctly notes that 

Dr. Scheer had the burden to prove that Dr. Wampler-Adams’ 

failure to admit Atkinson to the hospital entirely superseded 

the operation of Dr. Scheer’s own alleged negligence so that 

Dr. Wampler-Adams’ negligence alone, without any contributing 

negligence, even in the slightest degree, by Dr. Scheer, 

caused Atkinson’s death. However, the majority then finds, as 

a matter of law, that Dr. Scheer failed to meet this burden 

because Dr. Wampler-Adams testified without contradiction that 

she relied upon Dr. Scheer’s “workup” when she made the 

decision to discharge Atkinson. In addition, the majority 

reasons that even though Dr. Wampler-Adams had the last 

opportunity to take acts which would have substantially 

increased Atkinson’s probability of survival, Dr. WamplerAdams’ failure to act did not entirely sever the chain of 

proximate causation set in motion by Dr. Scheer’s alleged 

negligence. 

 The majority fails to consider the effect of the 

testimony of Dr. Baskerville that the application of 

nitroglycerin stopped Atkinson’s heart attack for the period 

during which it was applied. This evidence establishes that, 

at the time Scheer terminated his treatment of Atkinson, she 

was in a stable condition and had not been discharged from the 

16
emergency room and was available to be admitted to the cardiac 

unit of the hospital at that time by Dr. Wampler-Adams. These 

facts distinguish this case from Jenkins. Moreover, they 

create a jury issue on causation. 

 Dr. Wampler-Adams’ reliance upon Dr. Scheer’s “workup” 

may well explain in part her decision to discharge Atkinson. 

However, that reliance at best creates a factual issue whether 

Dr. Wampler-Adams’ conduct was a superseding intervening cause 

or the sole proximate cause of Atkinson’s death. This is so 

simply because, on the evidence presented, reasonable persons 

could have differed as to whether Dr. Wampler-Adams’ conduct 

so entirely superseded the operation of Dr. Scheer’s failure 

to admit Atkinson to the hospital, that it alone, without Dr. 

Scheer’s alleged negligence contributing thereto in the 

slightest degree, caused Atkinson’s subsequent death. 

Accordingly, since a factual issue was presented in the 

context of this causation issue, Scheer was entitled to 

present expert opinion in support of his theory of nonliability. 

 For these reasons, I would affirm the judgment of the 

trial court. 

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