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Medical Malpractice Miscellaneous

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Medical Malpractice Miscellaneous.For more information on medical negligence see the pages on this site and for medical malpractice see the pages on Wikipedia.

Medical Malpractice Miscellaneous-Statutes

See Va. Code § 8.01-52.1 as to expression of sympathy.


See Va. Code § 8.01-581.1 et seq.


See Va. Code § 32.1-297 as to breach of implied warranty action in connection with transfer of blood or human tissue.


See Va. Code § 38.2-5000 for birth-related Neurological Injury Compensation Act.


See Va. Code § 54.1-2901 as to licensing and practice requirements of doctors.

Medical Malpractice Miscellaneous-Cases

2006 Monahan v. Obici Med. Mgmt. Servs., Inc., 271 Va. 621, 628 S.E.2d 330.

Defendant is not required to plead mitigation of damages if the evidence justifies such an instruction. In this medical malpractice case, defendant did not plead mitigation and the evidence did not justify such an instruction.

2005 Oraee v. Breeding, 270 Va. 488, 621 S.E.2d 48.

Medical malpractice action where court reversed its decision in Auer v. Miller, 270 Va. 172, 613 S.E.2d 421 (2005). In this case, supreme court says that immunity is extended to a physician when he fails to take action in response to the receipt of a report containing the results of a laboratory test or examination that was not conducted at the request or with the written authorization of a physician. Thus, where a physician fails to obtain the results of certain laboratory tests requested by another physician, he is not entitled to immunity.

2005 Auer v. Miller, 270 Va. 172, 613 S.E.2d 421.

In this wrongful death medical malpractice case, physician was held by trial court to be immune under Va. Code § 8.01-581.18, in that the claim was based on physician’s alleged failure to take appropriate action regarding the results of laboratory tests that he neither ordered nor authorized and he was never presented with a report of the test results in connection with any consultation request. This statute is not limited to outpatient situations.

2005 Doe v. Zwelling, 270 Va. 594, 620 S.E.2d 750.

Plaintiff filed malpractice action against a licensed social worker alleging the social worker engaged in inappropriate and extra professional relationship with the plaintiff’s wife causing damage to his marriage and other damages. Some of those damages are barred under the alienation of affection statute found at Va. Code § 8.01-220 and, as such, those damages are not recoverable. The other damages claimed may be recoverable.

2001 Ponirakis v. Choi, 262 Va. 119, 546 S.E.2d 707.

Essence of contributory negligence is carelessness. In this case, trial court improperly instructed jury on contributory negligence in medical malpractice case. In order for contributory negligence to bar recovery by plaintiff, that negligence must be concurrent with defendant’s negligence. Before issue of contributory negligence can be submitted to jury, there must be more than simply a scintilla of evidence to support finding that plaintiff failed to act as reasonable person under the circumstances. There was no evidence in this case of contributory negligence by patient in failing to disclose prior episodes of blood and protein in his urine in response to physician’s questions about whether patient had experienced any serious diseases or operations. There was no evidence that presence of blood and protein itself was serious disease or that the patient knew or should have known that prior episodes of blood and protein in urine indicated presence of serious disease.

1992 Pierce v. Caday, 244 Va. 285, 422 S.E.2d 371.

Patient alleged doctor’s nurse violated physician-patient confidentiality. This is tort that constitutes malpractice, therefore, notice of claim prior to suit required.

1990 Hewitt v. Virginia Health Servs. Corp., 239 Va. 643, 391 S.E.2d 59.

Notice of claim not sent by registered or certified mail. This was a procedural requirement which was deemed waived.

1990 Gonzalez v. Fairfax Hosp. Sys., 239 Va. 307, 389 S.E.2d 458.

Plaintiff alleged injury during physical therapy session at hospital. Malpractice Act applies. Malpractice refers to any tort based on health care.

1990 Morrison v. Bestler, 239 Va. 166, 387 S.E.2d 753.

Malpractice suit filed in violation of ninety-day waiting period under § 8.01-581.2. Suit then non-suited. This filing requirement does not go to the subject matter jurisdiction of court, but rather is mandatory filing requirement.

1990 Hudson v. Surgical Specialists, Inc., 239 Va. 101, 387 S.E.2d 750.

Notice of claim is neither bill of particulars nor pleading of any kind. It is not required to contain summary of plaintiff’s evidence or exposition of plaintiff’s theories. Its purpose is to call defendant’s attention to identity of patient, time of alleged malpractice, and description of alleged acts of malpractice sufficient to enable defendant to identify case to which plaintiff is referring. Claim in this case stated defendant failed to properly cool and fibrillate plaintiff’s heart. Evidence at trial should not be limited to this allegation.

1990 Cowan v. Psychiatric Assocs., 239 Va. 59, 387 S.E.2d 747.

In notice of claim, plaintiff stated that in no way do they acknowledge that Malpractice Act applies. This did not constitute waiver of statute of limitations tolling provision of Act.

1989 Speet v. Bacaj, 237 Va. 290, 377 S.E.2d 397.

Admission of review panel opinion into evidence does not impinge on jury’s function of resolving disputed facts. Panel opinion does not establish standard of care.

1989 Edwards v. City of Portsmouth, 237 Va. 167, 375 S.E.2d 747.

Filing suit against hospital three days after filing notice of claim is violation of Va. Code § 8.01-581.2 and therefore, is untimely and court lacks jurisdiction.

1988 Grubbs v. Rawls, 235 Va. 607, 369 S.E.2d 683.

In motion for judgment, plaintiff alleged (1) failure to obtain informed consent, (2) negligent surgery, (3) negligent post-operative treatment. Third claim not expressly set forth in notice letter but Supreme Court ruled that language of letter broad enough to give reasonable notice of claim.

1988 Glisson v. Loxley, 235 Va. 62, 366 S.E.2d 68.

Whole malpractice statutory scheme focuses on tort and not breach of contract. Tort is civil wrong or injury; wrongful act not involving breach of contract for which action will lie. Tort is also defined as violation of some duty owing to plaintiff imposed by general law or otherwise. Generally duty arises by operation of law and not by agreement of parties. In this case, court held that plaintiff properly asserted breach of contract claims against doctor which were not covered by malpractice act. Fact that plaintiff sought recovery for pain and suffering does not make this tort action. Question of whether pain and suffering could be recovered in contract action was not decided.

1987 Klarfeld v. Salsbury, 233 Va. 277, 355 S.E.2d 319.

Medical malpractice review panel member may be deposed and interrogated about deliberative process. Dissenting opinion of two justices would hold that medical malpractice review panels are constitutional as Fourth Circuit has decided.

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Medical Malpractice Miscellaneous

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