Immunity For Virginia Physicians: The Supreme Court Giveth And The Supreme Court Taketh Away

Published on: 12/02/2005

A bedrock principle of the law is the doctrine of "stare decisis," which means that the common law (case decisions) develops in a manner consistent with the manner in which it has been interpreted over time. Put another way, legal precedent created after adequate argument and thought should remain unchanged unless good reason exists for the common law to reverse itself - the goal of the principle being the predictability of the law. The Supreme Court of Virginia recently weakened the strength of that principle.

In a span of less than five months, the Supreme Court of Virginia reversed itself concerning the application of a Virginia statute that has been on the books for more than 50 years. The statute, Virginia Code § 8.01-581.18, establishes immunity for "[a]ny physician" for failing to review or respond to "any report of the results of any laboratory test or other examination of the physical or mental condition of any person, which test or examination such physician neither requested nor authorized in writing." (emphasis added).

The statute remained relatively unused until 2003 when lawyers, including those at Sands Anderson Marks & Miller, began asserting the statute as a basis for immunity on behalf of physicians. For example, in one case defended by Sands Anderson, the plaintiff presented to a hospital with complaints of chest pain. A cardiologist ordered a CT scan, which demonstrated a mass on the plaintiff's lung. A consulting pulmonologist ordered a Fine Needle Aspiration, which was performed by a radiologist with a pathologist in attendance. Ultimately, the patient was referred to the defendant thoracic surgeon with chart entries from the cardiologist, pulmonologist, and radiologist diagnosing lung cancer. The pathology report from the FNA was not among the records reviewed by the defendant. Histological analysis during the wedge resection procedure that the surgeon performed disclosed only benign tissue. Unknown to the surgeon, the final pathological diagnosis from the FNA prior to the surgery had also disclosed benign tissue. The trial court granted summary judgment in favor of the surgeon based upon the immunity that the statute provides because the surgeon had not ordered the FNA.

On June 9, 2005, the Supreme Court of Virginia stamped its approval upon such innovative applications of Section 8.01-581.18 in the case of Auer v. Miller, 270 Va. 172 (2005). Without a dissent, the Virginia Supreme Court affirmed the trial court's decision granting immunity to a cardiologist regarding the results of a culture and sensitivity test of the plaintiff's decedent's native heart valve, which had been removed by and tested on the order of a cardiovascular surgeon. In its opinion, the Supreme Court noted regarding the immunity portion of Section 8.01-581.18: "It is firmly established that, when language of a statute is plain and unambiguous and its meaning is clear and definite, a court is bound by that language." The Court went on to "find the language in subsection B [the immunity portion] of Code § 8.01-581.18 [is] clear and unambiguous." The Supreme Court found unpersuasive the plaintiff's contention that the statute was intended to apply only to an "outpatient" situation and not to any situation involving an "attending" physician. Thus, the defense position was solidified - or so we thought.

On November 4, 2005, in a 4 - to - 3 ruling, the Supreme Court reversed its holding in the Auer case. The facts of Oraee v. Breeding, 621 S.E.2d 48, were similar to those in Auer - one physician sought immunity because another physician had ordered the testing. the Supreme Court considered the heading to Section 8.01-581.18 and the first part of Section 8.01-581.18. That first part, subsection A, states:

Whenever a laboratory test or other examination of the physical or mental condition of any person is conducted by or under the supervision of a person other than a physician and not at the request or with the written authorization of a physician, any report of the results of such test or examination shall be provided by the person conducting such test or examination to the person who was the subject of such test or examination.

The Supreme Court held in the Oraee case that the immunity subsection, B, could only be read with and must be reconciled with subsection A. The Court held: "With that understanding of subsection A, it then follows that the immunity from civil liability granted in subsection B applies only when a physician is charged with failing to review, or take action in response to receiving, a report of the results of a laboratory test or examination conducted ‘not at the request or with the written authorization of a physician.'"

Although acknowledging the importance of stare decisis, the majority opinion in Oraee focused on the language in subsection A regarding tests or examinations ordered by "a physician," which is general, and ignored the language in subsection B granting immunity to "such physician," which specifically applies to the reference to "[a]ny physician" at the beginning of subsection B. Thus the majority declared Auer a mistake and stated that the law now (one might say "today") is that a physician is entitled to immunity only if NO physician ordered or authorized the laboratory test or other examination, a circumstance so unlikely that the decision renders the statutory immunity virtually meaningless.