Recent VA Supreme Court Decisions
Published on: 7/08/2008
Recent Virginia Supreme Court Decisions Impact the
Defense of Medical Malpractice Actions
The Virginia Supreme Court recently handed down two decisions that will impact the defense of medical malpractice actions. In Webb v. Smith, the Court added to the growing list of cases where an expert is not required in a medical malpractice case where a particular element of the claim is within the common knowledge of the jury. In Williams v. Le, the Court spoke to the issue of whether a physician who fails to communicate radiologic results to the ordering physician was entitled to a "superseding intervening cause" jury instruction, based on the argument that the ordering physician failed to follow up on the results of the diagnostic study.
In Webb v. Smith, Record No. 071008, the plaintiff alleged that the defendant breached the standard of care by obtaining consent to perform two surgeries on her at the same time (a hysterectomy and a salpingo oophorectomy), but failing to perform both, thus causing her to endure the second surgery at a later date.
The plaintiff presented no causation expert at trial to testify that the defendant's negligence was the cause of her having to undergo the second surgery.
The defendant made a motion to strike the plaintiff's case at the close of the plaintiff's case, and the Court took the motion under advisement. After the jury returned a verdict for the plaintiff, the Court sustained the motion, entering judgment in the defendant doctor's favor. The plaintiff appealed.
The plaintiff argued on appeal that this case presented one of the rare instances in which an expert was not required, in that her damages and their relationship to the defendant's alleged negligence "were evident to any normal person." The defendant argued that as with most medical malpractice cases, an expert is required to establish all of the elements of the claim, including causation.
The Court held that the plaintiff was correct, and that any intelligent juror could understand the nexus between the alleged breach of the standard of care and the damages in this case. This has been come to be known as the "Beverly exception," that is, the holding in Beverly Enterprises-Virginia,Inc. v. Nichols, wherein the Court stated that in certain rare instances, expert testimony is not necessary in a medical negligence case where the allegations of negligence clearly lie within the range of the jury's common knowledge and experience. The Virginia Supreme Court (both before and after the Beverly ruling) had handed down similar rulings in Dickerson v. Fatehi and Jefferson Hospital, Inc. v. Van Lear (holding that expert testimony was not needed as the standard of care issue was in the common knowledge of the jury). In the Webb case, the Court cited Coston v. Bio-Medical Applications, decided in January 2008, and which echoed what the Virginia Supreme Court has already said in Beverly, Dickerson, and Jefferson Hospital, and further expands the "Beverly exception," often relied on by plaintiff's attorneys to avoid the expert support requirement.
Notably, the Court had historically confined the "Beverly exception" to the issue of the standard of care; here it has been extended to the issue of causation. This decision may give plaintiffs some latitude when prosecuting cases where they have standard of care support, but no causation expert.
On the same day, the Virginia Supreme Court handed down the decision in Williams v. Le. In Williams, the plaintiff was seen by a number of health care providers including Dr. McLain, her primary care provider. He ordered a Doppler study of her leg, which she had on June 2nd. The study was interpreted by Dr. Le, a radiologist on that date, and revealed a deep venous thrombosis. Dr. Le called Dr. McLain's office, and after holding for some time, hung up without talking to anyone or leaving a message. He prepared a wet read of the study and sent it by facsimile to Dr. McLain. In the interim, the plaintiff called Dr. McLain, advising him that the radiology tech told her to call him. Dr. McLain did not receive the message, but asked his assistant on the same day to contact the imaging center for the Doppler results. She did, and on June 3 the assistant sent Dr. McLain a message advising that the results were in the system ready for his review.
Plaintiff died on June 8 from a pulmonary embolism. Dr. McLain did not receive the message from his assistant that the results were available until after plaintiff's death.
Plaintiff either settled with or nonsuited all defendants but Dr. Le. At the trial, over plaintiff's objection, the Court granted Dr. Le an instruction on superseding intervening cause (arguing that Dr. McLain's actions were a superseding intervening cause that broke the chain of causation). The jury returned a verdict for Dr. Le. Plaintiff appealed, arguing that the instruction was improperly given.
Dr. Le argued that even if he was negligent, his negligence was not a proximate cause of plaintiff's death. He argued that Dr. McLain's subsequent negligence (not following up on the report) completely broke the chain of events between Dr. Le's alleged negligence and plaintiff's death. The Court held that the instruction was properly given only if reasonable persons could conclude from the evidence that Dr. McLain's later negligence alone (i.e., his failure to follow up on the results) without any contribution by Dr. Le, caused the death. In this case, the Court found that Dr. Le started the ball rolling by his failure to make direct contact with Dr. McLain or a member of his office. Thus, the trial Court erred in granting the instruction, and the case was reversed and remanded.
The holdings in Williams and Webb are both plaintiff-oriented holdings that continue an ominous trend of Virginia Supreme Court opinions that are unfavorable to health care providers.
For more information about Williams and Webb and their potential impact on litigation in Virginia, please contact Colleen M. Gentile at (804)783-7298 or cgentile@sandsanderson.com.This was written by:
- Colleen M. Gentile - (804) 783-7298