A malpractice suit filed in 2015 against a University anesthesiologist will go to trial in June. The defendant's motion for a summary judgment on the basis of sovereign immunity was denied by U.S. District Court Judge Glen Conrad. Mikiala Whitacre is suing Dr. Robert Thiele, an anesthesiologist, on behalf of her step-mother, Joy Anne Thomas. Whitacre alleges that Thiele improperly intubated Thomas during an emergency bring back surgery following a cardiac operation, causing the anoxic brain injury that led to Thomas’ death Feb. 1, 2013. Conrad ruled against granting Thiele sovereign immunity as an employee of the state March 20. At the time of the operation, Thiele was employed by the Physicians Group, a nonprofit corporation, as well as the University’s Medical School. In the memorandum opinion on the motion, Conrad stated that a reasonable jury could find ample evidence Thiele was acting in his capacity as an employee of the Physicians Group, not as an employee of the state. This prevents Conrad from granting Thiele sovereign immunity in a summary judgment without trial. “The evidence in the summary judgment record is sufficient to create a triable issue as to whether Dr. Thiele was operating within the scope of his state employment at the time he performed the acts complained of by the plaintiff,” Conrad said in the memorandum opinion. In the original complaint, Whitacre claims the endotracheal tube was not properly placed in the patient’s trachea, and that Thiele consciously chose to use a pulse oximeter rather than a more reliable means of evaluating breathing for a patient suffering from cardiac tamponade. Cardiac tamponade occurs when fluid fills the pericardium, or outer sac, of the heart, dramatically lowering blood pressure and sometimes resulting in death. In his answer to the complaint, Thiele denies knowing of a more reliable method for monitoring the patient’s breathing. Patients commonly undergo endotracheal intubation prior to deep sedation with anesthesia in order to ease passage of air through the mouth to the lungs and prevent bodily fluids from also getting into the lungs. Whitacre cites the surgeons’ medical records in her claim that a failed intubation occurred. “Following this surgery, the cardiothoracic surgeons reported in their operative note that the patient’s airway and breathing had been subject to an ‘attempted intubation’ and also states an ‘esophageal intubation’ had occurred which in either event was the cause of an anoxic — lack of oxygen — injury to the patient’s brain,” Whitacre said in the complaint. Thiele admits that the medical records refer to an “attempted intubation” and “esophageal intubation,” but denies that he fell below the standard of care for the intubation procedure. A demonstrated failure to meet the standard of care is one of two criteria for a successful medical malpractice suit, University Law Prof. Margaret Riley said. The other is the establishment of a relationship between the plaintiff and the defendant that creates a duty. “That failure of the standard of care has to be the proximate cause of the damages that are alleged by the plaintiff,” Riley said. In the original complaint, Whitacre claims over $75,000 in damages, later citing injury to Thomas as well as herself and other surviving members of the family. This falls well within Virginia’s $2.3 million limit that can be awarded in medical malpractice cases. “As a proximate result of [the] defendant’s negligence and falling below the standard of care, Joy Anne Thomas suffered great conscious pain and suffering at the time of the negligent intubation which cut off her air supply and as a further proximate result caused her death,” Whitacre said in the complaint. Thiele denies fault for such damages. The hearing has been rescheduled for June 20. Neither party responded to requests for comment, and the University Health System refused to comment on pending legal matters.