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.
2
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.
3
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
4
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."
5
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
7
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."
8
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
9
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
10
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
11
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 . . . .
. . . .
12
" '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
14
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
16
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.
20
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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