Dixon v. Sublett, 809 S.E.2d 617

Plaintiff Donna Sublett underwent a laparoscopic total hysterectomy performed by Dr. Mary Beth Dixon; trocars were used and an initial trocar placement was noted as close to the omentum.
Postoperatively Sublett experienced pain, dyspnea, urinary difficulty, and acute renal failure; CT was inconclusive and, two days later, a general surgeon (Dr. Barrett) found and resected a perforated portion of small bowel with contamination of the abdomen.
Sublett alleged Dixon negligently failed to detect and timely address a bowel perforation and failed to obtain a general surgery consult; at trial she abandoned any claim that Dixon caused the perforation.
Sublett’s OB/GYN expert (Soffer) testified Dixon breached the standard of care by not thoroughly inspecting the bowel and by failing to immediately consult a general surgeon; he did not, however, testify about what a general surgeon would have done or how earlier treatment would have changed outcome.
Dixon’s experts testified a bowel injury can be too small to see intraoperatively and may not manifest until 24 hours later; the trial court admitted medical bills and denied Dixon’s motions to strike; the jury returned a verdict for Sublett and the court entered judgment for $652,000.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiff proved causation in medical malpractice	Sublett: breach (failure to inspect and failure to consult) caused worsened injury and resultant damages	Dixon: no evidence that earlier detection/consult would have changed outcome; causation speculative	Court: No causation proved; judgment reversed for defendant
Admissibility/foundation for medical bills	Sublett: bills are customary/reasonable and admissible; expert testified customary	Dixon: McMunn requires expert linking bills to negligence-caused treatment	Court: Did not decide (dispositive causation ruling made); lower court had admitted bills but appellate opinion declined to address error given reversal on causation
Scope of expert testimony about surgical repair/timing	Sublett: Soffer could opine about what a general surgeon would have done and timing of repair	Dixon: Soffer not qualified to testify about general surgery repair or timing; testimony beyond designation	Trial court limited Soffer’s testimony on repair/timing; appellate court noted absence of such testimony undermined causation proof
Standard for reviewing denial of motion to strike	Sublett: jury verdict should be sustained if evidence, viewed for plaintiff, supports it	Dixon: evidence insufficient as a matter of law	Court: appellate standard applied; evidence insufficient on causation, so trial court erred in denying motion to strike

Bryan v. Burt, 254 Va. 28 (1997) (plaintiff must prove likely nature/effect of treatment that would have been provided to show causation)
Bitar v. Rahman, 272 Va. 130 (2006) (standard for reviewing denial of motion to strike; view evidence in light most favorable to plaintiff)
Brown v. Koulizakis, 229 Va. 524 (1985) (plaintiff must show negligent acts were proximate cause of injury)
Fruiterman v. Granata, 276 Va. 629 (2008) (appellate review standard regarding jury verdicts and motions to strike)
McMunn v. Tatum, 237 Va. 558 (1989) (expert foundation requirements for admitting medical bills)
Hadeed v. Medic-24, Ltd., 237 Va. 277 (1989) (example where proximate cause was a jury question because plaintiff proved likely treatment and its probable effect)
Whitfield v. Whittaker Mem’l Hosp., 210 Va. 176 (1969) (plaintiff can present evidence on probable treatment and benefit to prove causation)