Testimony of plaintiff's expert not good enough in wrongful death claim

CHARLESTON – The state Supreme Court has affirmed a summary judgment ruling in favor of a company alleged to be responsible for the death of a six-year-old girl.

On Oct. 25, the court affirmed a ruling by Kanawha County Circuit Court Judge Paul Zakaib in favor of Pediatrix Medical Group. The vote was 3-2, with justices Menis Ketchum and Robin Davis in the minority.

The decision says the plaintiff’s expert could not point to any evidence establishing Pediatrix’s employee breached the standard of care.

“While petitioner urges that the jury may nonetheless infer proximate cause notwithstanding her lack of medical testimony on this issue, we find there is quite simply nothing upon which a jury may make such an inference beyond abject speculation,” the decision says.

“The lack of expert medical testimony as to causation was therefore equally fatal to petitioner’s case as her failure to present a disputed issue of material fact on medical negligence.”

Teresa Dellinger took her daughter Amber to Raleigh General Hospital on Sept. 18, 2007. Amber complained of headache and fever and had several bug bites on her body.

She was treated and released, but returned the next day with nosebleed, vomiting and abdominal pain. She was transferred to Charleston Area Medical Center, where she was diagnosed with La Crosse encephalitis.

La Crosse encephalitis is a mosquito-transmitted virus that can cause inflammation of the brain.

In the early morning hours of Sept. 23, 2007, Amber complained of pain at the site of the IV in her arm. She began having seizures and lost consciousness.

The decision says the parties agreed that Amber was stuck up to a dozen times in an attempt to place the new IV. During the process, she began crying and hyperventilating.

Dr. Manuel Caceres, an employee of Pediatrix, was the on-call attending physician for the pediatric intensive care unit, where Amber was transferred. He ordered a blood gas test, chest x-ray and anti-seizure medication.

When the medication was not successful, he came to the hospital to intubate Amber.

The blood gas results showed Amber was suffering from respiratory acidosis, which required immediate intubation. Caceres did so by 4 a.m., but Amber died the next day.

The resulting lawsuit alleged Caceres was negligent in managing her airway. The plaintiff’s expert alleged her death came as the result of the delay in intubating Amber.

However, the expert said the airway should have been managed once the blood gas results were returned but conceded he did not know when that was and that he did not know if Caceres knew about the results prior to arriving at the hospital.

“Dr. Weber testified that he had no criticisms of Dr. Caceres’ actions once he was aware of the blood gas results, intubating rapidly and appropriately,” the opinion says.

Ketchum reserved the right to file a dissenting opinion.

The plaintiff is represented by John D. Wooton of Beckley, while the defendant is represented by Tamela J. White of Farrell, White & Legg of Huntington.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.