PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons and Agee,
JJ., and Stephenson, S.J.
MARYBELLE M. AUER, ADMINISTRATRIX
OF THE ESTATE OF NICHOLAS AUER, DECEASED
OPINION BY
v. Record No. 042226 SENIOR JUSTICE ROSCOE B.STEPHENSON, JR.
June 9, 2005
EDWARD MILLER, M.D., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
The primary issue in this appeal, one of first impression
regarding the interpretation of Code § 8.01-581.18, is whether
the trial court erred in granting immunity to a physician
pursuant to said Code section. A second issue is whether the
trial court erred in vacating a verdict against the physician's
practice group.
I
Marybelle M. Auer (the Plaintiff), as Administratrix of the
Estate of Nicholas Auer (Auer), filed this wrongful death action
against Lenox Baker, M.D., Mid-Atlantic Cardiothoracic Surgeons,
Ltd. (Mid-Atlantic), Edward Miller, M.D., and Cardiovascular
Associates, Ltd. (Cardiovascular Associates). The Plaintiff
alleged that the "Defendants' joint and several duty to exercise
the proper degree of care [for Auer] was breached" and that such
"negligence proximately caused [Auer's] untimely death."
Dr. Miller and Cardiovascular Associates filed a Special
Plea of Immunity, which the trial court granted in part and
denied in part. The court ruled that Dr. Miller and
Cardiovascular Associates were immune pursuant to Code § 8.01-
581.18(B) for any action or inaction relating to laboratory
tests ordered by Dr. Baker during Auer's May 15-23, 2002
hospital admission. The court denied the special plea as to the
allegations of negligence for failure to treat Auer following
his May 23 discharge from the hospital.
The case was tried by a jury, and verdicts were returned in
favor of Dr. Miller, against Dr. Baker and Mid-Atlantic in the
amount of $400,000 each, and against Cardiovascular Associates
in the amount of $200,000. Cardiovascular Associates moved to
have the verdict against it set aside, and the trial court
granted the motion, concluding that "there was insufficient
evidence upon which to submit the issue of proximate cause . . .
to the jury."1
We awarded the Plaintiff this appeal in order to consider
her assignments of error, which state the following:
I. The trial court erred in granting Miller
[i]mmunity under § 8.01-581.18(A) and (B).
A. The trial court erred when, by virtue of granting
immunity, Defendants' joint and several liability
was judicially redacted
B. The trial court erred when, in conformity with
the immunity ruling, [i]t granted jury
1
The verdicts against Dr. Baker and Mid-Atlantic are not at
issue in this appeal.
2
instructions temporally segregating Defendants'
liability
II. The trial court erred when it vacated the verdict
against the cardiology [g]roup.
II
On May 15, 2002, Auer was admitted to Sentara Norfolk
General Hospital (the Hospital) by Dr. Baker, a cardiovascular
surgeon. Dr. Miller was Auer's cardiologist. On that date, Dr.
Baker removed Auer's native aortic valve and replaced it with a
prosthetic valve. Dr. Baker also ordered a culture and
sensitivity test (C&S) of Auer's native valve.
The C&S indicated that Auer's native valve was positive for
staphylococcus. Dr. Baker, however, did not review the report
of the test, which had been posted to Auer's chart. Dr. Miller,
who had seen Auer several times in the hospital, also did not
review the report. Subsequently, the prosthetic valve became
infected, and the infection remained untreated while Auer was a
patient in the Hospital.
Auer was discharged from the Hospital on May 23, 2002.
Both Dr. Miller and Dr. Baker prepared discharge summaries.
On May 30, 2002, the Plaintiff, who was concerned about
Auer's condition, made several telephone calls to Dr. Miller's
practice group, Cardiovascular Associates. According to the
Plaintiff, someone at Cardiovascular Associates advised her to
contact Dr. Baker for post-operative complaints. The Plaintiff
3
had also placed several calls to Mid-Atlantic between May 23 and
May 29, 2002.
Auer was readmitted to the Hospital on June 3, 2002, and
was subsequently diagnosed with endocarditis, an infection of
the inner lining of the heart. He died shortly thereafter.
III
We first consider whether the trial court erred in granting
immunity to Dr. Miller pursuant to Code § 8.01-581.18(B).2 That
Code section provides, in pertinent part, as follows:
Any physician shall be immune from civil
liability for any failure to review, or to take any
action in response to the receipt of, 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, unless
such report is provided directly to the physician by
the person so examined or tested with a request for
consultation.
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. Cummings v. Fulghum, 261 Va.
73, 77, 540 S.E.2d 494, 496 (2001). A court is not permitted to
alter or rewrite a statute; this is strictly a legislative
function. Halifax Corporation v. Wachovia Bank, 268 Va. 641,
653, 604 S.E.2d 403, 408 (2004). Whether a statute is wise is
2
Dr. Miller relies only upon subsection B of Code § 8.01-
581.18 and concedes that subsection A is inapplicable.
4
also a matter for the legislature and not for a court. Horner
v. Dept. of Mental Health, 268 Va. 187, 193, 597 S.E.2d 202, 205
(2004).
We find the language in subsection B of Code § 8.01-581.18
to be clear and unambiguous. It clearly provides that a
physician shall be immune from civil liability for any failure
to take any action in response to a laboratory test or other
examination that the physician did not request or authorize
unless the person tested or examined provides a copy of the
report of the results and requests a consultation.
The Plaintiff contends, however, that Code § 8.01-581.18
applies only to tests ordered or authorized in outpatient
situations and "was simply not intended to exonerate an
attending physician from reading a lab report." We do not
agree.
The statute's application is not limited to outpatient
situations. Indeed, the statute specifically applies to "any
report . . . of any person." Had the General Assembly intended
to limit the statute's application to outpatient situations, it
could have so stated. Likewise, had the General Assembly
intended to exclude either an attending physician or a treating
physician from the statute's application, it could have said so.3
3
We need not decide whether Dr. Miller was also an
"attending physician," as alleged by the Plaintiff, although the
5
This Court cannot amend or rewrite the statute. Halifax
Corporation, 268 Va. at 653, 604 S.E.2d at 408.
In the present case, Code § 8.01-581.18(B) clearly applies
to Dr. Miller. He "neither requested nor authorized" the C&S,
and the report of the test was not provided to him with a
request for consultation. Therefore, the trial court did not
err in granting immunity to Dr. Miller.
The Plaintiff further contends that the trial court erred
in prohibiting the jury from considering Dr. Miller's alleged
negligence regarding his failure to review the test results.
She asserts that Dr. Miller and Dr. Baker were concurrently
negligent and, therefore, should share joint and several
liability. We disagree.
Having correctly determined that Dr. Miller was immune from
liability regarding review of the test report, the trial court
necessarily rejected the Plaintiff's contention that the two
doctors were jointly and severally liable. At trial, the sole
issue with respect to Dr. Miller and Cardiovascular Associates
was whether they failed to appropriately respond to the
record clearly indicates that Dr. Baker was the attending
physician.
6
Plaintiff's telephone calls on May 30, 2002, regarding Auer's
condition.4
IV
Finally, we determine whether the trial court erred in
vacating the verdict against Cardiovascular Associates. The
trial court concluded that the Plaintiff presented sufficient
evidence from which the jury could reasonably find that
Cardiovascular Associates breached the applicable standard of
care by not providing the proper response to the Plaintiff's
telephone calls on May 30, 2002. However, the court further
concluded, as a matter of law, that this breach of the standard
of care was not a proximate cause of Auer's death.
Ordinarily, negligence and proximate cause are issues to be
resolved by a jury. When reasonable minds could not differ
about these issues, a court may properly decide them. Hadeed v.
Medic-24, Ltd., 237 Va. 277, 285, 377 S.E.2d 589, 593 (1989).
In a case involving the death of a patient, a physician's
negligence is a proximate cause of the patient's death if it
"destroyed any substantial possibility of the patient's
survival." Brown v. Koulizakis, 229 Va. 524, 532, 331 S.E.2d
440, 446 (1985). In the present case, the trial court
4
For the same reason, the trial court did not err in
granting jury instructions and verdict forms that temporally
segregated the defendants' liability.
7
meticulously reviewed the testimony of the Plaintiff's expert
witnesses before concluding that no evidence was presented from
which the jury could find that Cardiovascular Associates'
negligence was a proximate cause of Auer's death.
One of the Plaintiff's experts, Dr. Donald E. Craven,
testified that by June 3, 2002, the date that Auer was
readmitted to the Hospital, any plan of treatment would have
been too late to save Auer. Dr. Craven was unable to say to a
reasonable degree of medical certainty that the outcome would
have been different had Auer been treated for endocarditis on
May 30.
Dr. Richard P. Friedlander, another of the Plaintiff's
experts, testified that he could not "say with certainty that
identification and treatment on the 30th [of May] would have
prevented [Auer's] death." Dr. Friedlander could only say that
earlier intervention "certainly would have improved his chances
of surviving as compared to making the diagnosis on the 3rd [of
June]." Dr. Friedlander also testified that
had the diagnosis and treatment been offered before
discharge on the 23rd, it is much more likely than not
that the patient would have survived. I can also say
that by the time the patient was readmitted to the
hospital on the 3rd, his fate was essentially sealed
as of that time.
Between the discharge on the 23rd and the readmission
on the 3rd, with each successive day the likelihood of
his survival diminished, but I cannot tell you at what
point he tripped over that magic 51 percent line when
8
it is more likely than not that he would have survived
or would not have survived.
Finally, Dr. Robert Bojar, also an expert for the
Plaintiff, testified that Auer would have survived had he
received treatment "earlier rather than later," but that by June
3, "it was too late." Dr. Bojar did not say, however, that had
Auer been seen and treated on May 30th, he would more likely
than not have survived.
After reviewing the testimony of the Plaintiff's expert
witnesses, the trial court concluded that "the combined
testimony of these witnesses does not establish that, had
[Cardiovascular Associates] responded appropriately according to
the standard of care, . . . [Auer] would have had a
substantially better possibility of survival." The trial court
further stated that the Plaintiff "must be able to present
expert testimony to support the proposition that [Auer] had at
least a substantial possibility of survival on May 30 . . . ,
and was deprived of same by the negligence of Cardiovascular
Associates. There was no adequate testimony to meet this
burden." We agree with the trial court's conclusion and hold
that the trial court did not err in vacating the verdict against
Cardiovascular Associates.
V
9
For the reasons stated, we find no error in the trial
court's rulings. Accordingly, the trial court's judgment will
be affirmed.
Affirmed.
10