Present: All the Justices 

CINDY L. BRYAN, 

PERSONAL REPRESENTATIVE, ETC. 

 OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 961409 June 6, 1997 

STEVEN BURT, D.O., ET AL. 

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY 

James H. Chamblin, Judge 

 The main appellate issue in this wrongful death action, 

alleging medical malpractice against both an emergency room 

physician and a family practitioner, is whether the trial court 

erred in striking the plaintiff's evidence at the close of the 

plaintiff's case-in-chief. 

 Appellant Cindy L. Bryan, who sues as "Personal 

Representative and Administratrix of the Estate of Shirley A. 

Robertson, deceased," filed a motion for judgment against 

appellees Steven M. Burt, D.O., and Eric J. Maybach, M.D., 

seeking damages for the alleged wrongful death of the decedent. 

The plaintiff alleged that the decedent came to a hospital 

emergency department complaining of severe abdominal pain. She 

alleged that Burt, the emergency room physician, diagnosed 

constipation as the cause of the pain when it actually was due to 

a perforated ulcer. The plaintiff alleged Burt discharged the 

decedent from the hospital after several hours of examination and 

treatment. 

 Subsequently, the plaintiff alleged, when the pain did not 

subside, the decedent's family contacted the office of Maybach, 

the decedent's family physician. The plaintiff further alleged 
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that as the result of Burt's misdiagnosis, which Maybach "knew or 

should have known of," the decedent's condition worsened and she 

died several months later while a patient in another hospital. 

 In a grounds of defense, Burt denied the plaintiff's 

allegations of negligence. Maybach filed a grounds of defense 

also denying he was negligent because "he was not involved in the 

care and treatment of" the decedent on the day of the alleged 

misdiagnosis. 

 Following presentation of the plaintiff's case-in-chief 

during a four-day jury trial in March 1996, the trial court 

sustained the defendants' respective motions to strike the 

evidence. We awarded the plaintiff an appeal from the trial 

court's April 1996 order entering summary judgment in favor of 

the defendants. 

 According to settled principles of appellate review 

governing a case in which the plaintiff's evidence has been 

struck at the close of the plaintiff's case-in-chief, we will 

recite the essential facts in the light most favorable to the 

plaintiff. Brown v. Koulizakis, 229 Va. 524, 526, 331 S.E.2d 

440, 442 (1985). 

 The focus of this lawsuit is upon the events of December 13, 

1992. Near 9:00 p.m. of that day, a Sunday, the plaintiff's 

decedent, age 53, went to the emergency department of the 

Fauquier Hospital in Warrenton, where she was examined and 

treated by Burt. She complained of pain "covering the entire 
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abdomen." The patient stated she had experienced "the acute 

onset of the abdominal pain" about three hours earlier. 

 Upon examination, the patient's "vital signs" were normal. 

She gave a history of peptic ulcer disease, hypertension, 

headaches, "a cholesterol problem," and "problems with 

constipation." She reported that she recently had been taking a 

number of different medications. 

 Burt ordered "lab work" and x-rays that were "of a standard 

nature" and "normal in this sort of situation." Upon making a 

diagnosis of constipation, the physician ordered injection of a 

pain relieving drug, Toradol, and giving of "a high soapsuds 

enema" about 10:00 p.m. Near 11:30 p.m., the patient began 

receiving "IV fluids, to run at approximately 500 cc's an hour." 

 About 35 minutes later, she was given "an oil retention enema." 

 The patient was discharged near 1:00 a.m. on December 14. 

Upon discharge, Burt instructed the patient to drink "lots of 

water," to pursue a "high fiber diet," to take specified doses of 

mineral oil, and "if no bowel movement" resulted, to take "8 oz. 

of citrate of Magnesia." She was told to return to the emergency 

room "if fever or any vomiting" developed and to "follow-up" with 

her personal physician on December 14 or 15 "for recheck" of her 

blood pressure. 

 The patient returned to her home, accompanied by her 

daughter. The pain continued, preventing the patient from 

sleeping. Over the course of the next few hours, she took the 
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prescribed doses of mineral oil. The pain did not subside and 

the medication did not produce a bowel movement. 

 Before noon on December 14, the daughter called Dr. 

Maybach's office because the patient "wasn't feeling better." 

The daughter spoke with the physician's receptionist. The 

daughter called Maybach's office again near 3:00 p.m. on the 

14th, and the receptionist relayed a recommendation from 

Maybach's nurse suggesting a laxative and an enema. Maybach was 

not present in his office when either call was received, and 

there was no request during either call for the physician to call 

the daughter. 

 Near 4:00 p.m. on December 14, the patient "started getting 

worse." She "started looking bad" and began "[g]asping for air." 

 About 8:35 p.m., the daughter took her to the emergency room of 

the Fauquier Hospital, where the patient went into shock and was 

seen by Dr. Fortune Odend'hal. 

 Within hours, Dr. J. Paul Wampler performed exploratory 

abdominal surgery on the patient. As a result, she was diagnosed 

as having a perforated pyloric ulcer and acute respiratory 

distress syndrome (ARDS). A plaintiff's medical expert testified 

the ulcer perforated about 6:00 p.m. on December 13. 

 Following surgery, the patient's condition "stabilized" and 

she was admitted to the hospital. The patient remained there 

until she was transferred to the University of Virginia Medical 

Center at Charlottesville on February 5, 1993, where she died 20 
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days later. According to a plaintiff's medical expert, the cause 

of death was ARDS and respiratory failure. He testified that the 

ARDS was caused by the perforated pyloric ulcer. 

 Three medical experts testified for the plaintiff: Dr. 

Frederick L. Glauser, who is "Board Certified in internal 

medicine, pulmonary and critical care medicine"; Dr. Philip G. 

Leavy, an expert in "emergency medicine"; and Dr. Robert Bowman, 

a "family practitioner of general medicine" presently employed in 

a hospital emergency department. The plaintiff proffered Glauser 

as a so-called "causation witness" and Leavy as a so-called 

"standard of care" expert in emergency medicine; neither 

purported to express an opinion on the alleged malpractice of 

defendant Maybach. 

 Glauser's testimony can be summarized as follows. From a 

review of the medical records, he said "the medically initiating 

cause" of the decedent's death "was a perforated pyloric ulcer." 

 Relying, in part, on his study of the pertinent x-rays, the 

witness opined that the ARDS began with the perforation of the 

ulcer at 6:00 p.m. on the 13th. He said there was a progression 

from the perforated ulcer to the ARDS to the death. Glauser's 

opinion was that the decedent had a 90 to 95 percent chance of 

survival at 6:00 p.m. on the 13th, a 75 to 80 percent survival 

chance on the 14th, and a 40 to 50 percent chance of survival on 

the 15th. 

 The trial court restricted Glauser's testimony on the basis 
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that he was attempting to offer opinions as a "standard of care" 

witness and not as a "causation" witness. That action of the 

court is the subject of an assignment of error. We shall not 

address the substance of the issue because any error committed by 

limiting the testimony was harmless; the expert fully expressed 

his views and the excluded information was supplied by the 

plaintiff's other experts. 

 Leavy's "standard of care" testimony can be summarized as 

follows. He opined that Burt "violated the standard of care in 

his emergency room examination" of the decedent "on several 

occasions in several areas of his care" for her. 

 Specifically, the witness said, Burt failed "to appreciate 

the significance of the complaint of the abrupt onset of pain in 

the abdomen"; he "failed to appreciate the medication[s] she was 

taking and failed to get a history of . . . how often she had 

been taking them"; he failed to recognize she was being treated 

with a combination of medications that had a propensity to worsen 

ulcers; and Burt "turned away from the chief complaint and 

focused on the chronic constipation problem that she had." 

 In addition, the expert opined that Burt should have noticed 

"free air," an abnormal condition, in the decedent's abdomen that 

was revealed on the x-rays taken on the 13th. The witness' 

"impression" was that most patients with "perforated ulcers will, 

in fact, have free air." Also, the witness said Burt's conduct 

fell below the standard of care by not monitoring more frequently 
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the patient's vital signs during her four-hour emergency room 

stay on the 13th. 

 Bowman, proffered as a witness to testify about "the medical 

care" provided by both defendants to the decedent, opined that 

both "acted below the standard of care." Bowman's opinions on 

Burt's conduct were essentially the same as Leavy's. Focusing 

on the allegations against Maybach, who had been the decedent's 

family doctor for 18 years, Bowman criticized Maybach's 

prescription of certain medications in the past as inconsistent 

with "good care." He also testified: "In the care of her 

problem that brought her to the emergency room, I think there was 

an opportunity to have made the care for her in the emergency 

room to be more directed toward problems that might have 

diagnosed her correctly had communication been given." 

Continuing, he said: "I don't have enough information to be able 

to know what the communication was." 

 Additionally, the expert said that, upon the decedent's 

release from the emergency room following her stay on the 13th, 

Maybach's "office was contacted on two separate occasions and the 

information that was given was that she was continuing to have 

abdominal pain," and the suggested treatment was to "relieve what 

was diagnosed as a constipation problem." The witness said 

Maybach acted below the standard of care because there was no 

suggestion during the two calls "that she should be reexamined, 

either by himself or by going back to the hospital." 
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 Also, the witness opined that the standard of care was 

violated when, assuming Maybach was not in the office when either 

telephone call was received, Maybach's receptionist or nurse 

failed "to obtain medical help" for the decedent when her 

daughter called. The witness said a prudent physician should 

establish "guidelines" for the office staff to cover such 

situations. The expert admitted, however, that if Maybach's 

staff had urged the decedent to return to Fauquier Hospital's 

emergency room on the 14th, the standard of care would have been 

met. 

 As we have said, the main question on appeal is whether the 

trial court erred in striking the plaintiff's evidence. The 

issues to be decided under this broad question are whether there 

was sufficient evidence of primary negligence, in the case of 

defendant Maybach, and of proximate cause, in the case of both 

defendants, to have carried those issues to the jury. 

 The applicable law is settled. A physician is neither an 

insurer of diagnosis and treatment nor is the physician held to 

the highest degree of care known to the profession. The mere 

fact that the physician has failed to effect a cure or that the 

diagnosis and treatment have been detrimental to the patient's 

health does not raise a presumption of negligence. Nevertheless, 

a physician must demonstrate that degree of skill and diligence 

in the diagnosis and treatment of the patient which is employed 

by a reasonably prudent practitioner in the physician's field of 
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practice or specialty. Brown, 229 Va. at 532, 331 S.E.2d at 445. 

See Code § 8.01-581.20. 

 In medical malpractice cases, a plaintiff must establish not 

only that a defendant violated the applicable standard of care, 

and therefore was negligent, the plaintiff must also sustain the 

burden of showing that the negligent acts constituted a proximate 

cause of the injury or death. Thus, in a death case, if a 

defendant physician, by action or inaction, has destroyed any 

substantial possibility of the patient's survival, such conduct 

becomes a proximate cause of the patient's death. Brown, 229 Va. 

at 532, 331 S.E.2d at 446. Accord Poliquin v. Daniels, 254 Va. 

___, ___, ___ S.E.2d ___, ___ (1997), decided today. 

 First, we shall consider the case against Dr. Burt. He does 

not dispute that the plaintiff presented expert testimony which 

showed he breached the standard of care and which showed the 

cause of the decedent's death. However, he contends the 

plaintiff failed to "present any expert testimony linking these 

two events." 

 The plaintiff argues that "proximate cause was shown by 

expert testimony of a loss of substantial possibility of Mrs. 

Robertson's survival." We do not agree. 

 Certainly, the plaintiff presented evidence that Burt's 

failure to diagnose the perforated ulcer on December 13 

constituted a violation of the standard of care, and that her 

chances of survival diminished from 90 to 95 percent on the 13th 
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to 40 to 50 percent on the 15th. Nonetheless, the plaintiff 

failed to present evidence of any course of treatment which 

should have been pursued on the 13th, given a diagnosis of a 

perforated ulcer, that would have increased the decedent's 

chances of survival. Affording the plaintiff benefit of all 

possible inferences, one could infer from the events of the 14th 

that, if the condition had been properly diagnosed on the 13th, 

the decedent would have been referred to a surgeon who would have 

been responsible for her care. But the record is silent about 

the details of that care and its possible effect on the patient's 

health. 

 This case is unlike Hadeed v. Medic-24, Ltd., 237 Va. 277, 

377 S.E.2d 589 (1989); Brown, supra; and Whitfield v. Whittaker 

Mem'l Hosp., 210 Va. 176, 169 S.E.2d 563 (1969), relied on by the 

plaintiff. In each of those cases, holding proximate cause to be 

a jury issue, the plaintiff presented testimony to establish the 

nature of the treatment the decedent could have undergone had the 

diagnosis been correct and the probability that such treatment 

would have extended the decedent's life. 

 For example, in Hadeed, the defendant physicians were 

charged with negligently failing to timely diagnose and treat a 

decedent's coronary artery disease. According to the evidence, 

treatment in the form of medication or bypass surgery would have 

improved the decedent's chance of survival. There, we said: 

"Likewise, proximate cause was a jury question. [The plaintiff] 
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presented evidence that the doctors' failure to meet the 

applicable standard of care destroyed any substantial possibility 

of [the deceased's] survival. A jury reasonably could find that 

with bypass surgery [the deceased] would have had an 85-90 

percent chance of living to age 70. With only medical therapy, 

he would have had a 50 percent chance of living to age 60." 237 

Va. at 286-87, 377 S.E.2d at 594. 

 Likewise, in Brown we stated: "Prompt diagnosis of the 

presence of the clot, which existed at least 48 hours before the 

death, would have enabled the orthopedist to administer treatment 

in the form of medication which would have substantially 

increased the patient's chances of living, according to the 

testimony. This was evidence of proximate cause." 229 Va. at 

533, 331 S.E.2d at 446. 

 Consequently, we hold that the trial court did not err in 

granting Dr. Burt's motion to strike the plaintiff's evidence. 

 Second, we shall address the case against Dr. Maybach. The 

essence of the plaintiff's criticism of Maybach is that he 

mismanaged the decedent's care prior to December 13, that he 

should have communicated more of the patient's history to Burt, 

and that the handling of the two telephone calls on the 14th by 

Maybach's office staff was improper. 

 Even if we assume for purposes of this discussion that one 

or more of those charges somehow support a finding of negligence, 

nevertheless Maybach's alleged deviations from the standard of 
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care were too remote as a matter of law to be causally related to 

the decedent's death. Maybach never was afforded the opportunity 

to see, diagnose, or treat the decedent on the 13th. He was 

never asked to evaluate her complaints of pain on that day. 

Actually, the evidence showed he was working at a Front Royal 

hospital at the time. He was never asked to read the x-rays 

which the plaintiff now argues showed free air in the abdomen 

indicating a perforated ulcer. 

 The evidence shows that Maybach's only involvement with the 

decedent on the 13th consisted of two telephone calls. In the 

first call, he directed the patient to seek treatment at the 

Fauquier Hospital because he was on duty in the Front Royal 

hospital at the time. In the second call, Burt merely advised 

Maybach that the patient had been seen, evaluated, and discharged 

with a diagnosis of constipation. 

 When the telephone calls of the 14th were received, Maybach 

was not in his office. The decedent's daughter was told, 

according to the evidence, that if the patient's pain was severe 

she should be brought to Maybach's office or returned to the 

hospital. The daughter responded the family did not want to take 

the patient back to the hospital. The daughter was asked if she 

wished to leave a message for Maybach, and she declined to do so. 

 The patient never came to Maybach's office for treatment on the 

14th. 

 In sum, as Maybach argues, his involvement with the decedent 
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at the pertinent times "was simply too limited, too remote and 

too indirect" to be causally connected to her death. Thus, we 

hold the trial court did not err in granting Dr. Maybach's motion 

to strike. 

 Finally, we reject the plaintiff's other assignments of 

error. The trial court did not abuse its discretion in refusing 

to allow the deposition testimony of a radiologist as part of the 

plaintiff's case-in-chief. The focus of that area of inquiry was 

upon what an emergency room physician should have seen and 

evaluated on x-rays, not what an expert radiologist should have 

seen and evaluated. And, the trial court properly excluded proof 

of medical expenses that had not been linked causally to any 

alleged malpractice of the defendants. 

 For these reasons, the judgment below in favor of the 

defendants will be 

Affirmed.