In Howell v. Sobhan, the Supreme Court of Virginia clarifies the law of proximate cause and gives us a new opinion replete with appellate practice pointers.

The Case

The plaintiff, Esther Howell, went to a gastroenterologist for a colonoscopy. He found 3 polyps in her colon, but was only able to remove one. The gastroenterologist sent Howell in for a “probable subtotal colectomy”–yes, it’s as bad as it sounds. Before surgery, the gastroenterologist determined that her polyp was benign.

Not that it mattered.

Howell’s surgeon, Dr. Sobhan, removed almost all of her colon, reattaching it to her small intestine through an anastomosis. After she was discharged from the hospital, Howell developed a fistula, or leak, that was penetrating her abdomen and coming through her wound. While she was in the emergency room, the incision in her abdomen split open, and “the bowel contents came out” through her incision.

This led to two more surgeries, and ultimately a suit against Dr. Sobhan for removing too much of her colon and using inappropriate anastomosis techniques.

At trial, Howell produced two experts. Both testified that Dr. Sobhan breached the standard of care by removing too much of her large intestine.

One expert, Dr. Ludi, testified that it is important to preserve as much of the colon as possible during surgery. He opined that, if Dr. Sobhan had performed an alternate procedure, Howell would have had a 95% chance of returning to a “normal bowel scenario.” The procedure Dr. Sobhan actually employed, by contrast, left her with no chance, because it left her with no colon. Dr. Ludi testified that if Dr. Sobhan had worked with a different part of Howell’s colon, she would not have developed a fistula. On cross, however, he admitted that a fistula is a known complication of colon surgery and that any anastomosis can break down and cause a fistula.

Howell’s other expert, Dr. Hercules (Seriously? Did Dr. Acula have a conflict?) testified that Dr. Sobhan breached the standard of care by removing too much of Howell’s colon and performing a cancer operation without confirming that the polyps were malignant. He also admitted on cross that any anastomosis could break down and develop a fistula. But he explained that placing an anastomosis lower in the colon, as Dr. Sobhan had done, increases the risk of a fistula “slightly.”

The defendants moved to strike at the close of Howell’s evidence. The trial court denied their motion. The defendants renewed their motion to strike at the close of all of the evidence. This time, the trial court granted it on the ground that Howell had not proven proximate cause, but only that she suffered the normal complications of a surgical procedure.

On appeal, the Supreme Court reversed. It found that–viewing the evidence in the light most favorable to Howell–she had presented sufficient evidence of proximate causation to make out a jury question. Two pieces of evidence drove this finding:

  • First, Dr. Ludi testified that an alternate surgical procedure would have given Howell a 95% chance of regaining normal bowel function, as opposed to the 0% chance Dr. Sobhan gave her; and
  • Second, even though a fistula is a known complication of colon surgery, Dr. Hercules explained that the risk of a fistula increases slightly when the anastomosis is lower in the colon.

In this case, “slightly” was enough to do the trick. The Court expressly rejected the defendants’ argument that Howell’s assignment of error did not comply with Rule 5:17(c).

Practice Points from Howell:

  1. Standard of Review. The Court’s analysis in Howell is largely the result of the extraordinarily appellant-friendly standard of review it applied. When the appellate court views the evidence in the light most favorable to the appellant and draws all inferences in her favor, that basically means that she wins every fact argument. This is a key concept to remember when the trial court grants a motion to strike on the basis of an issue that is inherently a question of fact like, I don’t know . . . proximate cause? If the standard of review defines the strength of the lens through which an appellate court examines the decision below, the Howell court was using a magnifying glass.
  2. Assignments of Error. It seems like we’re always harping on assignments of error/questions presented. This opinion gives us another chance to do so. Dr. Sobhan directly challenged Howell’s assignment of error, but the Supremes ruled that it will pass muster. Over the past year or so, the Court has grown increasingly idiosyncratic–even erratic–in its treatment of assignments of error. If this trend continues, expect to see more challenges of this sort. This, in turn, will make it even more important to craft assignments of error carefully.
  3. The Power of Word Choice. Howell‘s fact pattern is brutally gory, but much of it is described in almost tedious med-mal jargon. That makes the zingers stand out–like Dr. Hercules’ description of the procedure that Dr. Sobhan performed as a “cancer operation,” when the pathology report showed that Howell’s polyp was benign. There’s a sound bite that I’d toss out at oral argument. It makes you wish that the good doctors (and the Court) had spent more time speaking in the vernacular. Imagine how the first few paragraphs of my summary would read if I’d written them in English, with words like “gut,” “burst,” and “spilled out.”

Finally, congratulations to Official Friend of De Novo (TM) Melissa Scoggins, who represented Howell and came through with the win on appeal. Steve Emmert calls Howell a major win for plaintiffs, and I tend to agree with him. Nice work, Melissa!