Kimberly Burch, the administrator of the estate of Joan Ison, sued Dr. Jeff Sensenig and other medical professionals for failing to diagnose Ison with a symptomatic aortic aneurysm that ruptured and caused her death. The Virginia medical malpractice jury returned a defense verdict. On appeal, Burch argued that the circuit court erred in refusing her “empty chair” jury instruction, in giving two “mere happening” instructions, in precluding her from cross-examining a defense expert on certain topics, and in excluding certain statistical evidence.
Background Facts
On June 10, 2016, Joan Ison went to her primary care physician (PCP) complaining of chest pain. Ison had a known aortic aneurysm and x-rays obtained on the order of her PCP indicated that her aneurysm may have changed. Accordingly, Ison went to the emergency room for more detailed testing. At the ER, Ison presented with severe—10 out of 10—chest pain and mid-back pain. The ER doctor treating Ison was Dr. Jeff Sensenig, who reviewed her medical history, performed a physical exam, and ordered blood work and a CT scan. The CT scan—interpreted by another doctor, a radiologist—revealed that the aneurysm was not “significantly changed” when compared to a CT scan conducted the previous year. Sensenig called the vascular practice treating Ison and spoke with the “on-call” doctor to relay the details of the new CT scan. The on-call doctor recommended that Ison follow-up with her treating vascular physician the next week but did not believe that the aneurysm was causing Ison’s symptoms. Sensenig accordingly discharged Ison from the ER and told her to return if her symptoms worsened.
Eight days later, Ison returned to the ER complaining again of severe chest and back pain. Ison reported that the pain level was the same as the last visit. Sensenig again ordered a CT scan—though this specific scan was different from the previous CT scan in its diagnostic value for aneurysms. A second radiologist reviewed this CT scan and concluded that there was no change in Ison’s aneurysm from June 10. Sensenig did not call Ison’s vascular practice on this occasion.
Sensenig reviewed Ison’s chart which revealed that her vascular surgeon had canceled the follow-up appointment after Ison’s first ER visit. Sensenig decided to admit Ison to the hospital. The hospitalist on call then became Ison’s treating physician until the next morning when another hospitalist took over Ison’s care. Prior to transferring Ison’s care to the hospitalist, Sensenig discussed Ison’s visit and her previous medical history, including the fact that Sensenig called Ison’s vascular practice on the 10th. On June 20, a CT scan was ordered that revealed that Ison’s aneurysm had ruptured or was leaking. Because the hospital where Sensenig worked and where Ison was admitted did not have the capacity to perform an aneurysm repair surgery, the hospitalists sought to transfer Ison to another hospital, but she died before the transfer could be made.
The Court of Appeals of Virginia stated in its unpublished Memorandum Opinion dated March 19, 2024: “Given the circuit court’s broad discretion in fashioning jury instructions, the circuit court did not err in refusing Burch’s cumulative empty chair instruction as the legal principle of multiple proximate causes was already detailed by the other instructions. Additionally, the circuit court did not err in granting Sensenig’s mere happening instructions as they correctly stated the law, and the jury could not have been misled by the instructions. Furthermore, the circuit court did not err in permitting Dr. Lavingia to testify to the risk of complications as it was not speculative for the inference that, even assuming Sensenig’s negligence, the surgery would not have occurred. Burch procedurally defaulted her assignment of error related to the exclusion of certain cross-examination of Dr. Lavingia by failing to include a proffer of what she expected Dr. Lavingia’s testimony would be. Finally, the circuit court did not err in excluding “raw statistical data” because such data, standing alone, is of minimal probative value. Accordingly, we affirm the judgment of the circuit court.”
Source Burch v. Sensenig, D.O., Record No. 0194-23-1.
If you or a loved one suffered harm as a result of medical negligence in Virginia or in another U.S. state, you should promptly find a Virginia medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
Click on the “Contact Us Now” tab to the right, visit our website, or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your state who may assist you.
Turn to us when you don’t know where to turn.
