Background Facts
In March 2019, Dr. Colleen Connor, an employee of Mid-Atlantic Women’s Care, P.L.C., performed a total abdominal
hysterectomy on Gloria Kontaratos, with assistance from Dr. Seifeldin Sadek, a medical resident. At approximately 11:00 a.m. on the day following surgery, Kontaratos reported pain, numbness, and tingling in her lower extremities. Kontaratos underwent a veinous study that afternoon that revealed no blood clots but showed that Kontaratos had no arterial blood flow to her lower extremities. After Dr. Sadek received the results of the veinous study, he ordered an arterial scan but did not have the authority to request a vascular consult without first consulting with the attending physician. Dr. Sadek relayed Kontaratos’ symptoms to Dr. Connor, who did not visit Kontaratos or order additional testing before she left the hospital for the evening.
Kontaratos’ symptoms continued to worsen throughout the day, and Kontaratos’ nurse found no pulse in her lower extremities. The nurse contacted Mid-Atlantic’s on-call physician, Dr. Frank Morgan, who decided to wait for a pending arterial scan before requesting a vascular consult. At this point, six hours had passed since the initial onset of Kontaratos’ symptoms. Kontaratos’ arterial scan confirmed that she had no pulses flowing to her lower extremities, at which time Dr. Morgan ordered a vascular consult, at approximately 7:55 p.m. A vascular surgeon evaluated Kontaratos that evening and determined that she had acute limb ischemia and needed immediate surgery. During the surgery, the vascular surgeon found the ischemia to be significant and found clots in multiple blood vessels. The vascular surgeon made several incisions on both of Kontaratos’ legs, attempting to remove the clots, and then followed with fasciotomies in both legs. Following this procedure, Kontaratos had an exceedingly painful and difficult recovery. Kontaratos later required many additional surgeries and amputations of toes and part of her foot.
Kontaratos filed a Virginia medical malpractice complaint alleging medical malpractice against Dr. Connor and Dr. Frank Morgan, as well as their employer, Mid-Atlantic, based on a theory of respondeat superior for the care Kontaratos received after complaints of severe leg pain and numbness that arose following her total abdominal hysterectomy.
On the third day of trial, Mid-Atlantic informed the circuit court that Dr. Connor was ill and unable to attend the trial. Mid-Atlantic asked the circuit court to instruct the jury that “Dr. Connor had an important matter to attend to” and that the circuit court had “excused Dr. Connor from trial” on the first day. The circuit court advised the jury that Dr. Connor had “a very important personal matter and the [circuit court had] authorized her absence from today’s proceedings.” The circuit court advised the jury that they were “not to make any assumptions or draw any inferences due to her absence.” The trial proceeded following this instruction.
The following day, Mid-Atlantic informed the circuit court that Dr. Connor had “taken a turn for the worse” and was being admitted to the hospital. Mid-Atlantic requested a mistrial. The circuit court ultimately took Mid-Atlantic’s motion under advisement, but asked for more information on Dr. Connor’s condition. The next day, the fifth day of trial, Mid-Atlantic made a new motion for a mistrial. The circuit court again took the motion for mistrial under advisement until it could learn more about Dr. Connor’s “ability to participate by way of presence and/or presentation of evidence in the case.”
Dr. Connor was released from the hospital on Sunday, May 1, 2022. The following day, on the sixth day of trial, Mid-Atlantic moved for a mistrial on behalf of itself, Dr. Connor, and Dr. Morgan. Mid-Atlantic argued that Dr. Connor suffered prejudice due to her illness, as she was unable to participate in her trial, warranting mistrial. In response, Kontaratos moved to nonsuit Dr. Connor and Dr. Morgan, which the circuit court granted. Kontaratos argued that the motion for a mistrial was “moot” because Dr. Connor was no longer a party to the suit, arguing “[t]hat motion for a mistrial is no longer pending in front of the court and rightfully so, because there can be no verdict entered against her.” The circuit court denied Mid-Atlantic’s motion for a mistrial. The trial resumed the following day, during which Dr. Connor was in attendance and testified, after which the defense rested. Dr. Connor testified about her illness and that she had been hospitalized for three days during the trial.
The Virginia medical malpractice jury returned a verdict in Kontaratos’ favor in the amount of $3,100,000, which was reduced to $2,125,000, based on the statutory limit and a separate settlement between Kontaratos and another defendant. Code § 8.01-581.15. Mid-Atlantic appealed.
The Court of Appeals of Virginia stated in its unpublished Memorandum Opinion filed on October 31, 2023: “We agree with Mid-Atlantic that the proper consideration for deciding a motion for a mistrial is whether “the defendant’s rights are so ‘indelibly prejudiced’ as to necessitate a new trial” … Mid-Atlantic argues that Kontaratos’ nonsuit of Dr. Connor and Dr. Morgan did not cure the prejudice that arose from Dr. Connor’s absence from trial because the judgment against Mid-Atlantic was based only on its responsibility for its employees’ actions … Ultimately, Dr. Connor was able to attend the beginning and ending of the trial. She was able to testify before the jury. In fact, she was permitted to explain her sickness and absence from the trial. Considering the totality of the circumstances, we find that the circuit court did not abuse its discretion by denying Mid-Atlantic’s motion for mistrial.”
“The circuit court provided the jury with daily instructions, building upon the information it received regarding Dr. Connor’s condition. The circuit court’s final instruction informed the jury that Dr. Connor had been hospitalized. The circuit court consistently reminded the jury not to make any assumptions or draw any inferences from Dr. Connor’s absence and that it had approved of Dr. Connor’s absence. Again, as the cautionary instructions piled up, day after
day, Kontaratos noted that the instructions were evoking sympathy from the jury in favor of the stricken doctor—but the circuit court persevered with the instructions. Once Dr. Connor returned to trial, the circuit court permitted her to testify about the circumstances of her absence. As noted above, we presume the jury followed the circuit court’s instructions not to draw inferences from Dr. Connor’s unavailability. Centra Health, Inc., 277 Va. at 81. Based on the facts of the case, we find that the circuit court did not abuse its discretion in issuing its cautionary instructions.”
Source Mid-Atlantic Women’s Care, P.L.C. v. Kontaratos, Record No. 1319-22-1.
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