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.Continue Reading Howell v. Sobhan: Appellate Practice Points from the Supreme Court’s New Opinion

Appellate texts and practice guides recite solemn homilies about the importance of the standard of review (and with good reason–but that’s another post). We are told that that standard of review defines the strength of the lens through which the appellate court will review the lower court’s decisions. Our standard of review should not be