Didato v. Strehler

Present: All the Justices

MIMI DIDATO

v. Record No. 003030

PAUL M. STREHLER, M.D., ET AL.

OPINION BY JUSTICE LEROY R. HASSELL, SR.
November 2, 2001
GARY DIDATO

v. Record No. 003031

PAUL M. STREHLER, M.D., ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge

In these consolidated appeals from judgments sustaining

the defendants' demurrers in medical negligence actions, we

consider whether the plaintiffs' motions for judgment alleged

viable causes of action based upon negligence, the assumption

of a duty, and the creation of a special relationship.

I.

Mimi Didato and her husband, Gary Didato, filed separate

amended motions for judgment against Paul M. Strehler, M.D.,

and Chippenham Pediatric & Adolescent Medicine, P.C.

(Chippenham Pediatric). Mimi Didato and Gary Didato, to whom

we will refer jointly as the plaintiffs, alleged in their

separate motions for judgment that the defendants breached

certain duties owed to them. The defendants filed demurrers

to the amended motions for judgment and asserted that the
plaintiffs failed to allege viable causes of action against

them.

The circuit court sustained the demurrers. The circuit

court concluded that: the plaintiffs failed to allege that

they were patients of the defendants and, therefore, the

defendants owed no duty to the plaintiffs; a special

relationship did not exist between the plaintiffs and the

defendants and, therefore, the defendants owed no duty to the

plaintiffs under that theory of recovery; and the defendants

did not assume a duty owed to the plaintiffs.

The circuit court entered judgments in favor of the

defendants. We awarded the plaintiffs appeals from the

judgments, and we consolidated their cases.

II.

A.

A demurrer "admits the truth of all material facts that

are properly pleaded, facts which are impliedly alleged, and

facts which may be fairly and justly inferred from alleged

facts." Cox Cable Hampton Roads, Inc. v. City of Norfolk, 242

Va. 394, 397, 410 S.E.2d 652, 653 (1991). Thus, we will state

the relevant facts, contained in the plaintiffs' amended

motions for judgment, which are necessary for our resolution

of these appeals.

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 Strehler is a physician licensed to practice medicine in

this Commonwealth, and he is engaged in the practice of

pediatrics. Chippenham Pediatric is a professional

corporation registered to do business in this Commonwealth and

provides pediatric services. Strehler is an officer and

employee of Chippenham Pediatric. The Didatos are the parents

of three children: Matthew, born on January 21, 1993;

Gabrielle, born on September 28, 1994; and Nicholas, born on

May 12, 1998.

In 1993, the plaintiffs "presented to Dr. Strehler and

Chippenham Pediatric and requested that they provide their

family including themselves and their infant son Matthew all

health care [that] a family should receive from a pediatrician

and a professional corporation engaged in providing health

care services relating to the practice of pediatrics."

Pursuant to this request, "Dr. Strehler and Chippenham

Pediatric agreed to provide the Didato family all health care

[that] members of a family should receive from a pediatrician

and a professional corporation engaged in providing health

care services relating to the practice of pediatrics." The

relationship between the Didato family and the defendants

"continued without interruption until 1997," when the

plaintiffs moved from Virginia to Connecticut.

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 According to the plaintiffs, thalassemia and sickle cell

disease are inherited diseases of the blood known as

hemoglobinopathies. "Thalassemia is a form of anemia (red

blood cell deficiency). Hemoglobin is the oxygen-carrying

component of the red blood cells. It is made of two different

kinds of proteins, called alpha and beta globins. If the body

doesn't produce both of these two proteins, the red blood

cells do not form properly and do not carry sufficient oxygen.

The result is anemia that begins in early childhood and

persists throughout life. There are a number of varieties of

thalassemia. If the body does not produce beta globins, the

resultant disease is called beta thalassemia."

The plaintiffs stated in the amended motions for judgment

that "[s]ickle cell disease (also referred to as 'sickle cell

anemia') is caused by the presence of an abnormal type of

hemoglobin called 'sickle hemoglobin' in red blood cells. The

presence of sickle hemoglobin causes red blood cells to change

from their usual biconcave disc shape to a crescent or sickle

shape. The abnormal hemoglobin makes the red blood cells

unable to carry oxygen and the abnormal shape can also cause

the red blood cells to clog small blood vessels forming clots

and preventing some organs and tissue from receiving

sufficient oxygen. When this occurs, red blood cells are

damaged and destroyed producing anemia and the victim of

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sickle cell disease will experience episodes of severe pain

and sustain damage to organs and tissue."

Continuing, the plaintiffs stated that "[s]ome of the

various clinical manifestations of sickle cell disease include

painful swelling of the hands and feet caused by ischemic

necrosis of the small bones, illnesses accompanied by fever,

hypoxia and acidosis, infarction of bone marrow, splenic

infarcts, splenic enlargement leading to circulatory collapse,

pulmonary infarction, strokes, ischemic damage to heart,

liver, kidneys and eyes and priapism (painful penile

erections)."

According to the plaintiffs, "[v]ictims of sickle cell

disease are susceptible to meningitis, sepsis and other

serious infections and a high risk for a lethal, rapid

decrease in hemoglobin level (aplastic episode). . . . By

mid-childhood most victims of sickle cell disease are

underweight and have an enlarged heart. Puberty is frequently

delayed. Throughout life, the victim of sickle cell disease

will suffer a barrage of medical crises and can expect to

experience pain in varying levels of intensity on a daily

basis. . . . The life expectancy of sickle cell disease

victims is dramatically reduced as a consequence of the

disease and its sequelae."

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 The plaintiffs also pled that "[b]oth thalassemia and

sickle cell disease are autosomal recessive disorders. This

means these disorders only occur when both parents carry the

gene for the disorder. If both parents are carriers of the

abnormal gene responsible for producing the disorder, there is

a 25 per cent possibility that a child of the parents will

have the disorder. A person who carries the gene for

thalassemia has the 'thalassemia trait.' A person who carries

the gene for sickle cell disease has the 'sickle cell trait.'

. . . If one parent is a carrier of the beta thalassemia trait

and the other parent is a carrier of sickle cell trait, there

is a 25 per cent possibility that a child of the parents will

be born with a type of sickle cell disease known as sickle

beta thalassemia." Continuing, the plaintiffs stated that

"[o]ne form of sickle beta thalassemia disease is called

sickle beta O thalassemia. This is the most severe form of

sickle beta thalassemia."

"The beta thalassemia trait is found primarily in persons

of Mediterranean, African or Southeast Asian origin. . . .

[Mr.] Didato is of Sicilian descent and is therefore a person

of Mediterranean origin. . . . The sickle cell trait is found

primarily in persons of African, Caribbean, Latin American,

Southeast Asian, Middle Eastern or Mediterranean origin. . . .

Mrs. Didato's mother is Dominican and her father is of Spanish

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and Portuguese descent and Mrs. Didato is therefore a person

of Caribbean, Latin American and Mediterranean origin."

The plaintiffs stated in their amended motions that "[b]y

the 1970's, technology to screen infants for sickle cell trait

and disease and thalassemia trait and disease was

available. . . . By 1979, a number of pediatricians were

advocating screening of newborns for sickle cell trait and

disease and thalassemia trait and disease to help accomplish

two objectives: provision of optimum medical care of patients

with the disease and the prevention of the disease through

genetic counseling."

According to the plaintiffs, "[p]urposes of genetic

counseling include making persons such as the parents of [a]

newborn who tested positive for sickle cell or thalassemia

trait aware of the risk of parenting a child with thalassemia

or sickle cell disease, the availability of further genetic

testing for the parents and the various alternatives for

disease prevention. The information made available to parents

through genetic counseling and follow-up activities

recommended by genetic counseling would include the 25 per

cent risk of future offspring with sickle cell disease if both

parents were carriers of sickle cell trait or one parent was a

carrier of sickle cell trait and the other a carrier of

thalassemia trait. In such parents, the options made known to

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the parents through genetic counseling and its follow-up

activities would include preventing the birth of a child with

sickle cell disease by termination of any unplanned pregnancy

when prenatal diagnosis revealed the fetus was positive for

sickle cell disease or thalassemia or avoiding all pregnancies

by birth control."

The plaintiffs alleged that in 1987, representatives of

certain medical specialties, including pediatricians, reached

a consensus that "[g]ood medical practice dictated that

screening for sickle cell disease and thalassemia should be

provided to all newborns as a result of ordinary care and that

state law should require provision of such services[; i]f the

screening demonstrated that the newborn did not suffer from

the disease and therefore required no specialized medical care

but was a carrier, information about the newborn's carrier

state should be furnished to the parents of the newborn[; t]he

information provided to the parents should explain that

although the newborn's carrier state is not a disease, there

may be implications for other family members, and, depending

on results of family studies, future children may be at risk

for a clinically significant hemoglobinopathy[; and a]

referral source for family testing and genetic counseling

should be clearly identified for the parents."

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 The plaintiffs further stated that "[p]rior to 1994,

Virginia and most other states had initiated a newborn

screening program for hemoglobinopathies." Continuing, the

plaintiffs alleged that in 1994, Code § 32.1-65 "provided that

each infant born in the Commonwealth would be subject to a

screening test for sickle cell diseases unless the infant's

parent or guardian objected on religious grounds." The

plaintiffs also alleged that before September 28, 1994,

"pediatricians in Virginia and elsewhere in the United States

had determined that [a] pediatrician who [was] caring for a

newborn and [was] aware that the newborn carries the sickle

cell trait [was] in the best position to alert the parents" of

a newborn of their child's status as a carrier and to

communicate certain information to the parents.

Strehler and Chippenham Pediatric became aware that Mr.

Didato and his son Matthew carried the thalassemia trait

before the birth of Gabrielle on September 28, 1994. "At the

time of the birth of Gabrielle on September 28, 1994, Dr.

Strehler and Chippenham Pediatric agreed to become the

pediatrician and pediatric practice entity responsible for

providing Gabrielle and her family including [Mr.] and Mrs.

Didato all health care [that] Gabrielle and her family should

receive from a pediatrician and a professional corporation

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engaged in providing health care services relating to the

practice of pediatrics."

The plaintiffs alleged that "[a]t the time of the birth

of Gabrielle on September 28, 1994, Dr. Strehler and

Chippenham Pediatric knew that blood would be drawn for

Gabrielle and screened for the presence of

hemoglobinopathies." These defendants "knew that the results

of the newborn screening of Gabrielle for the presence of

hemoglobinopathies would be reported to [them]." The

defendants also knew that the plaintiffs expected the

defendants to communicate to the plaintiffs any information

and facts of clinical significance concerning the results of

the newborn screening of Gabrielle.

In October 1994, the defendants were notified in writing

that a newborn screening test of Gabrielle indicated

"HEMOGLOBIN PATTERN = PROBABLE FAS." The defendants also knew

that "FAS" meant fetal adult sickle hemoglobin. When the

defendants were notified of these results, Strehler knew that

the newborn screening of Gabrielle's blood indicated that she

was a carrier of the sickle cell trait. Strehler and

Chippenham Pediatric were notified and knew that Mr. Didato

was a carrier of the thalassemia trait. The defendants also

knew "that it was very possible that [the plaintiffs] would

conceive together other children in the future." The

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defendants "knew that any child born to [the plaintiffs] in

the future had a 25 per cent risk of suffering from sickle

cell beta thalassemia."

After Gabrielle's birth, Mrs. Didato, "acting on her

behalf and on behalf of Gabrielle and [Mr.] Didato, asked an

employee of Chippenham Pediatric about the results of the

newborn screening of Gabrielle and was informed by an employee

acting in the scope of the employee's employment by Chippenham

Pediatric and authorized to speak on behalf of Chippenham

Pediatric that since Mrs. Didato had not been informed about

any abnormality by Dr. Strehler or Chippenham Pediatric, it

meant the newborn screening was normal."

The plaintiffs reasonably relied upon the representation

of Chippenham Pediatric that Gabrielle's newborn screening

results were normal. The plaintiffs alleged that the

defendants knew that the plaintiffs would rely upon these

representations.

On May 12, 1998, Mrs. Didato gave birth to Nicholas, who

was subsequently diagnosed as suffering from sickle cell beta

O thalassemia. The plaintiffs learned for the first time,

after Nicholas' birth, that Gabrielle was a carrier of the

sickle cell trait. Had the defendants informed the plaintiffs

that Gabrielle was a carrier of the sickle cell trait, the

plaintiffs would not have conceived any additional children

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thereby avoiding the risk of having a child born with sickle

cell beta thalassemia.

III.

A.

Plaintiffs argue that they pled sufficient facts to

support a cause of action for negligence against the

defendants and that contrary to the circuit court's ruling, a

physician-patient relationship existed between the plaintiffs

and the defendants. The defendants respond that the

plaintiffs were not patients of Strehler or Chippenham

Pediatric within the meaning of Code § 8.01-581.1 and,

therefore, they did not owe any duties to the plaintiffs.

Hence, the defendants contend that the plaintiffs failed to

plead a cause of action against them. We disagree with the

defendants.

Code § 8.01-581.1, which is a part of the Virginia

Medical Malpractice Act, states in relevant part:

" 'Health care' means any act, or treatment
performed or furnished, or which should have been
performed or furnished, by any health care provider
for, to, or on behalf of a patient during the
patient's medical diagnosis, care, treatment or
confinement.
" 'Health care provider' means (i) a person,
corporation, facility or institution licensed by
this Commonwealth to provide health care or
professional services as a physician or hospital
. . . [or] (ii) a professional corporation . . . .

. . . .

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 " 'Malpractice' means any tort based on health
care or professional services rendered, or which
should have been rendered, by a health care
provider, to a patient.
" 'Patient' means any natural person who
receives or should have received health care from a
licensed health care provider except those persons
who are given health care in an emergency situation
which exempts the health care provider from
liability for his emergency services in accordance
with § 8.01-225."

There is no dispute that the defendants are health care

providers within the meaning of the Medical Malpractice Act.

The only dispute is whether the plaintiffs are patients within

the meaning of the Act.

The plaintiffs pled in their amended motions for judgment

that they requested the defendants to provide all health care

that a family should receive from a pediatrician and a

professional corporation engaged in providing health care

services relating to the practice of pediatrics. The

plaintiffs alleged that the defendants agreed to provide the

Didato family with the requested services. Code § 8.01-581.1

defines a patient as "any natural person who receives or

should have received health care from a licensed health care

provider." Applying the definitions in Code § 8.01-581.1, we

hold that the plaintiffs pled sufficient facts which, if

proven at a trial, would establish the existence of a

13
physician-patient relationship between the plaintiffs and the

defendants.

Additionally, we observe that "[a] physician's duty

arises only upon the creation of a physician-patient

relationship; that relationship springs from a consensual

transaction, a contract, express or implied, general or

special . . . and a patient is entitled to damages resulting

from a breach of a physician's duty." Lyons v. Grether, 218

Va. 630, 633, 239 S.E.2d 103, 105 (1977) (citations omitted);

accord Prosise v. Foster, 261 Va. 417, 421, 544 S.E.2d 331,

332 (2001). The facts pled in the plaintiffs' motions, if

proven at trial, would permit a jury to find that a physician-

patient relationship existed between the plaintiffs and the

defendants.

The defendants, relying upon Gray v. INOVA Health Care

Services, 257 Va. 597, 514 S.E.2d 355 (1999), contend that as

a matter of law, they owed no duties to the plaintiffs. We

disagree. Our decision in Gray is simply not pertinent here.

In Gray, we considered "whether a parent who witnesses

the effects of a negligent tort committed upon a child in the

presence of the parent has a cause of action in tort against

the tortfeasor for negligent infliction of emotional distress

and its symptomatic effects." Id. at 598, 514 S.E.2d at 355-

56. Holly Gray alleged in her motion for judgment that her

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three-year-old daughter was admitted to a hospital owned and

operated by INOVA Health Care Services. According to her

motion, health care providers negligently administered the

drug Fentanyl to Mrs. Gray's daughter during a procedure to

test her for meningitis. The daughter experienced a

convulsion, stopped breathing, and her face turned blue. Mrs.

Gray, who was "standing next to her daughter . . . observed

the condition of her daughter [and Gray] experienced extreme

fright and shock, temporarily blacked out, fell to the floor,

and became physically sick and vomited." Id., 514 S.E.2d at

356.

We reviewed the allegations contained in Gray's motion

for judgment, and we held that INOVA owed no duty to Mrs. Gray

because she was not the patient upon whom medical tests were

performed. Id. at 599, 514 S.E.2d at 356. Unlike the

pleadings in Gray, the plaintiffs' motions for judgment filed

in the present cases contain allegations that defendants

Strehler and Chippenham Pediatric "agreed to provide the

Didato family all health care [that] members of a family

should receive from a pediatrician and a professional

corporation engaged in providing health care services relating

to the practice of pediatrics."

Moreover, we have stated that a "plaintiff who seeks to

establish actionable negligence must plead the existence of a

15
legal duty, violation of that duty, and proximate causation

which results in injury." Delk v. Columbia/HCA Healthcare

Corp., 259 Va. 125, 132, 523 S.E.2d 826, 830 (2000). The

plaintiffs pled that in 1987, a consensus was reached among

representatives of the concerned medical specialties,

including pediatricians, that "[g]ood medical practice

dictated that screening for sickle cell disease and

thalassemia should be provided to all newborns," that the

results of such tests should be communicated to the parents of

the child and that "[a] referral source for family testing and

genetic counseling should be clearly identified for the

parents." Assuming that the plaintiffs can establish at a

trial that the standard of care in this Commonwealth required

that a reasonably prudent pediatrician discharge these duties,

that the defendants failed to do so, and that their failure

was a proximate cause of the plaintiffs' injuries, then the

plaintiffs would establish prima facie cases of negligence.

B.

The plaintiffs contend that their amended motions for

judgment contain cognizable causes of action against the

defendants because the plaintiffs pled that "the defendants

assumed a duty to exercise reasonable care in the

communication of information [to them,] even if no duty had

existed prior to this undertaking." Thus, the plaintiffs

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contend that the circuit court erred in sustaining the

defendants' demurrers. Responding, the defendants state that

they cannot assume a duty to a non-patient to comply with the

standard of care set forth in [Code] § 8.01-581.20, which

states in relevant part:

"A. In any proceeding before a medical
malpractice review panel or in any action against a
physician . . . or other health care provider to
recover damages alleged to have been caused by
medical malpractice where the acts or omissions so
complained of are alleged to have occurred in this
Commonwealth, the standard of care by which the acts
or omissions are to be judged shall be that degree
of skill and diligence practiced by a reasonably
prudent practitioner in the field of practice or
specialty in this Commonwealth and the testimony of
an expert witness, otherwise qualified, as to such
standard of care, shall be admitted; provided,
however, that the standard of care in the locality
or in similar localities in which the alleged act or
omission occurred shall be applied if any party
shall prove by a preponderance of the evidence that
the health care services and health care facilities
available in the locality and the customary
practices in such locality or similar localities
give rise to a standard of care which is more
appropriate than a statewide standard. . . .
"B. In any action for damages resulting from
medical malpractice, any issue as to the standard of
care to be applied shall be determined by the jury,
or the court trying the case without a jury."

We disagree with the defendants' contentions.

As the plaintiffs correctly point out, and the defendants

do not dispute, we have cited with approval the legal

principle that "[i]t is ancient learning that one who assumes

to act, even though gratuitously, may thereby become subject

17
to the duty of acting carefully, if he acts at all." Nolde

Bros. v. Wray, 221 Va. 25, 28, 266 S.E.2d 882, 884 (1980)

(quoting Glanzer v. Shepard, 135 N.E. 275, 276 (N.Y. 1922));

accord Ring v. Poelman, 240 Va. 323, 326, 397 S.E.2d 824, 826

(1990); Cofield v. Nuckles, 239 Va. 186, 192, 387 S.E.2d 493,

496 (1990). We also observe that this common law principle is

embodied in the Restatement (Second) of Torts § 323:

"One who undertakes, gratuitously or for
consideration, to render services to another which
he should recognize as necessary for the protection
of the other's person or things, is subject to
liability to the other for physical harm resulting
from his failure to exercise reasonable care to
perform his undertaking, if
"(a) his failure to exercise such care
increases the risk of such harm, or
"(b) the harm is suffered because of the
other's reliance upon the undertaking."

Even if the plaintiffs are unable to establish with

evidence at trial that the standard of care required that a

reasonably prudent pediatrician communicate certain

information to them, the plaintiffs pled sufficient facts

which, if proven at trial, would permit the finder of fact to

conclude that the defendants assumed the duty to convey to the

plaintiffs the correct results of their daughter's test, which

indicated that she carried the sickle cell trait.

The defendants' contention that they could not assume a

duty to a non-patient to comply with the standard of care in

Code § 8.01-581.20 is without merit. We find no language in

18
Code § 8.01-581.20 which vitiates the common law rule that one

who assumes a duty must discharge that duty with reasonable

care.

C.

The plaintiffs contend that "[u]nder certain

circumstances . . . a physician will owe a duty to a person

who is not a patient if there is a special relationship

between the person and the physician." Continuing, the

plaintiffs contend that a special relationship existed between

them and the defendants which imposed certain duties upon the

defendants, including the duty to warn the plaintiffs that

there was "a mathematically certain risk of 25% that any

future child of the Didatos would suffer from sickle cell beta

O thalassemia." The plaintiffs rely upon the following

decisions to support their contentions: Thompson v. Skate

America, Inc., 261 Va. 121, 540 S.E.2d 123 (2001); Delk, 259

Va. 125, 523 S.E.2d 826; A.H. v. Rockingham Publishing Co.,

255 Va. 216, 495 S.E.2d 482 (1998); and Burdette v. Marks, 244

Va. 309, 421 S.E.2d 419 (1992). We disagree with the

plaintiffs' contentions.

We have held that generally a person does not have a duty

to protect another from the conduct of third persons. Delk,

259 Va. at 132, 523 S.E.2d at 830; Burdette, 244 Va. at 311,

421 S.E.2d at 420; Marshall v. Winston, 239 Va. 315, 318, 389

19
S.E.2d 902, 904 (1990). However, we stated that this general

rule does not apply when a special relationship exists between

a defendant and a plaintiff which gives rise to a right to

protection to the plaintiff or between the defendant and third

persons which imposes a duty upon the defendant to control the

third person's conduct. Thompson, 261 Va. at 129, 540 S.E.2d

at 127; Delk, 259 Va. at 132, 523 S.E.2d at 830-31; A.H., 255

Va. at 220, 495 S.E.2d at 485; Burdette, 244 Va. at 312, 421

S.E.2d at 420; Dudley v. Offender Aid & Restoration, 241 Va.

270, 276, 401 S.E.2d 878, 881 (1991); Fox v. Custis, 236 Va.

69, 74, 372 S.E.2d 373, 375 (1988); Klingbeil Management Group

Co. v. Vito, 233 Va. 445, 447-48, 357 S.E.2d 200, 201 (1987).

We hold that the plaintiffs failed to plead cognizable causes

of action within the ambit of our jurisprudence governing

special relationships as discussed in Thompson v. Skate

America, Delk v. Columbia/HCA Healthcare Corp., A.H. v.

Rockingham Publishing Co., Burdette v. Marks, and Nasser v.

Parker, 249 Va. 172, 455 S.E.2d 502 (1995), because those

relationships give rise to a duty of protection from criminal

acts committed by third parties. The legal principles

articulated and applied in these cases have no application

here.

IV.

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 Accordingly, we will affirm that portion of the circuit

court's judgments that sustained the defendants' demurrers on

the basis that the plaintiffs failed to plead causes of action

that gave rise to a special relationship between the

plaintiffs and the defendants. We will reverse the remaining

portions of the circuit court's judgments, and we will remand

these cases for further proceedings on the plaintiffs' claims

of negligence and assumption of duties.

Record No. 003030 – Affirmed in part,
reversed in part,
and remanded.

Record No. 003031 – Affirmed in part,
reversed in part,
and remanded.

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