Fruiterman v. Granata

Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Goodwyn, JJ., and Carrico, S.J.

JAN PAUL FRUITERMAN, M.D., ET AL.

v. Record No. 071894 OPINION BY JUSTICE CYNTHIA D. KINSER
October 31, 2008
JULIE GRANATA

JOSEPH GRANATA

v. Record No. 071897

JAN PAUL FRUITERMAN, M.D., ET AL.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge

In these wrongful birth cases filed by the parents of twin

daughters afflicted with Down syndrome, the circuit court

sustained a jury verdict in favor of the mother. We will

reverse that judgment because the evidence was insufficient as

a matter of law to prove the element of proximate causation.

With regard to the father’s case, the circuit court granted a

motion to strike the evidence because the father failed to

prove a physician-patient relationship. We will affirm that

judgment.

I. PROCEDURAL HISTORY

Julie Granata and Joseph Granata (the Granatas) each filed

a separate but identical motion for judgment in the circuit

court, alleging that Jan Paul Fruiterman, M.D., Eleni Solos-

Kountouris, M.D., and their professional corporation, Drs.
Fruiterman and Solos-Kountouris, P.C. (collectively, the

Doctors), undertook to provide obstetrical services and

prenatal care to the couple, thereby establishing a physician-

patient relationship with both Julie and Joseph. The Granatas

further alleged that the Doctors breached the standard of care

by failing to provide Julie with information about first

trimester testing known as chorionic villus sampling (CVS), 1

which would have revealed that her twin fetuses were afflicted

with Down syndrome. Additionally, the Granatas alleged that,

if Julie had known about the condition of her fetuses during

the first trimester, she would have elected to terminate the

pregnancy. As a direct and proximate result of the Doctors’

alleged negligence, Julie and Joseph claimed damages for, among

other things, mental and emotional distress, medical and

hospital bills for the care of the twins, and lost family

income.

The two actions were tried together before the same jury.

In motions to strike both at the close of the Granatas’

evidence and at the close of all the evidence, the Doctors

argued, among other things, that the Granatas failed to prove

1
CVS is a procedure by which a sample of the chorionic
villi, or placental tissue, is obtained from the expectant
mother and the cells are tested for genetic disorders such as
Down syndrome. CVS may be performed between the tenth and
thirteenth week of a pregnancy.

2
by expert testimony to a reasonable degree of medical

probability that, if Julie had undergone CVS testing, the

result would have been positive for Down syndrome. The Doctors

also asserted that Joseph failed to prove the existence of a

physician-patient relationship. Therefore, they argued his

claim was, at most, only derivative of Julie’s claim.

The circuit court took all the motions to strike under

advisement and elected to decide them, if needed, after the

jury returned verdicts. In separate verdicts, the jury found

in favor of Julie and awarded damages in the amount of

$4,000,000. The jury also found in favor of Joseph and awarded

$500,000 in damages.

In post-trial motions, the Doctors renewed their motions

to strike the Granatas’ evidence. They also asked the circuit

court to set aside the jury verdicts and either enter judgment

in their favor or grant them a new trial. The Doctors

alternatively moved the circuit court to reduce the verdicts in

accordance with the statutory cap for recoveries in medical

malpractice actions pursuant to Code § 8.01-581.15.

At the post-trial hearing, the Doctors presented the same

arguments that they raised in the motions to strike the

evidence. With respect to whether the Granatas proved by

expert testimony that the results of CVS would have been

positive for Down syndrome, the circuit court asked whether

3
“there was any evidence that if a CVS had been done it would

have returned a positive result.” The Granatas acknowledged

there was no such evidence in the record. Regardless, the

circuit court overruled the Doctors’ motions and sustained the

jury verdict in Julie’s favor. The court did, however, reduce

the award to $1.6 million pursuant to Code § 8.01-581.15.

With regard to Joseph, the circuit court granted the

Doctors’ motion to strike and dismissed his case. In a letter

opinion, the court concluded that, in the absence of an

undertaking by Dr. Solos-Kountouris, Joseph was not a patient

and could not reasonably have expected to be a patient as

defined in Code § 8.01-581.1. 2 The court explained, “[i]f

someone who merely accompanied a patient on a visit to the

patient’s physician was able to recover for emotional distress,

the end result would be an extension of the physician’s

liability beyond all reasonable or logical bounds.”

The Doctors and Joseph filed separate appeals from the

respective judgments of the circuit court. With regard to the

Doctors’ appeal, the dispositive issue is whether Julie proved

through expert testimony to a reasonable degree of medical

probability that, if CVS testing had been conducted, the result

2
During the hearing on the Doctors’ post-trial motions,
Joseph stipulated that the verdict in his favor against Dr.
Fruiterman should be set aside because he had no interaction
with Dr. Fruiterman on certain relevant dates.

4
would have shown the chromosomal abnormality associated with

Down syndrome. Joseph assigns two errors to the circuit

court’s judgment. He first claims the court erred in ruling

that he failed to prove a physician-patient relationship with

Dr. Solos-Kountouris or her professional corporation. Second,

Joseph asserts that the court erred in failing to find that

Dr. Solos-Kountouris undertook to provide health care to him by

advising about genetic testing.

We will now present the relevant facts and then address

the issues raised in each appeal, starting with the Doctors’

appeal.

II. DOCTORS’ APPEAL

A. Relevant Facts

In February 2002, Julie met with Dr. Solos-Kountouris for

pre-conception counseling and a gynecological examination. Dr.

Solos-Kountouris discussed the risks associated with conceiving

a child when the mother is past the age of 35, in particular

the risk of having a fetus with a chromosomal abnormality. 3

According to Dr. Solos-Kountouris, she emphasized the

3
Julie was 37 years of age at the pre-conception
appointment with Dr. Solos-Kountouris.

5
importance of screening tests, including CVS and amniocentesis, 4

and explained how such procedures are performed, the risks

associated with them, and the time frame during a pregnancy

when the mother can undergo the tests.

Julie’s testimony about the initial appointment differed

from that of Dr. Solos-Kountouris. Julie stated that Dr.

Solos-Kountouris discussed and recommended only amniocentesis.

Julie testified about how she explained to Dr. Solos-Kountouris

that, since amniocentesis is performed 16 to 18 weeks into the

pregnancy, she felt the pregnancy would be too far along to

terminate if the procedure revealed an abnormality. According

to Julie, after the first trimester she would feel and look

pregnant, and “it’s a baby, not a fetus” at that point. To

Julie, “anything past the first trimester is . . . when my

responsibility is to manage the pregnancy.”

Julie further testified that Dr. Solos-Kountouris told her

amniocentesis was the “only way” to determine whether a fetus

has a chromosomal abnormality. Moreover, Julie insisted that

no one at the Doctors’ office mentioned CVS during either her

initial appointment or her subsequent appointments.

4
During amniocentesis, a large needle is inserted into the
amniotic sac and a small amount of the fluid is removed. The
cells in the fluid are then tested to determine certain genetic
disorders, such as Down syndrome. Amniocentesis is not
performed earlier than the sixteenth week of a pregnancy.

6
 Soon after the pre-conception counseling visit, Julie

became pregnant and returned to the Doctors in March 2002 to

confirm her pregnancy. At that appointment, she saw Dr.

Fruiterman, who, like Dr. Solos-Kountouris, recommended that

Julie undergo amniocentesis. According to Julie, she again

rejected amniocentesis because, in her view, it is performed

too far along in the pregnancy.

Throughout her pregnancy, Dr. Fruiterman and Dr. Solos-

Kountouris also recommended that Julie receive genetic

counseling. Despite their recommendations, Julie never

attended genetic counseling. Additionally, she never underwent

amniocentesis, despite a positive alpha-fetoprotein blood test

result in June 2002. The result signaled that the fetuses had

a high risk for Down syndrome. In September 2002, Julie gave

birth to identical twin girls, both of whom are afflicted with

Down syndrome.

At trial, Julie insisted that, if the Doctors had advised

her about the availability of CVS either before or during the

first trimester of her pregnancy, she would have undergone the

test. Julie stated she would not have bonded with her fetuses

before the test could have been performed. She further

testified that, if the test result had been positive, meaning

her twin fetuses were afflicted with Down syndrome, she “would

have to have had a double abortion.”

7
 The Granatas presented testimony from two medical expert

witnesses. The first witness, John Williams, III, M.D., an

expert in the field of obstetrics and gynecology, testified to

the standard of care for an obstetrician to inform his patients

about the availability of CVS. In forming his opinions,

Dr. Williams relied upon medical literature, one of which

described amniocentesis and CVS as “definitive diagnostic

test[s].”

During cross-examination, Dr. Williams admitted that there

is a possibility of receiving a false result from CVS, but

claimed such a result is “extremely rare.” When asked if there

are instances of positive CVS results that have been disproved

by later tests indicating a fetus is normal, Dr. Williams

explained that there are occasions when there is a “mixture of

normal and abnormal cells, and in that situation better than 90

percent of the time the fetus is not affected.” He also stated

that about 1-in-100 patients would require a follow-up

amniocentesis to “sort things out” after receiving a positive

CVS. At no time during his testimony did Dr. Williams state

his opinion as to whether CVS would have been positive for Down

syndrome if Julie had undergone that test.

Similarly, the Granatas’ other medical expert witness,

Ronald J. Wapner, M.D., also an expert in the field of

obstetrics and gynecology, expressed no opinion on that

8
particular issue. Dr. Wapner, like Dr. Williams, acknowledged

that one of the risks associated with undergoing either CVS or

amniocentesis is the possibility of having “false positives and

false negatives, and sometimes information that just won’t be

interpretable at all.”

One of the Doctors’ witnesses, Mary E. D’Alton, M.D., who

testified as an expert in the field of obstetrics and

gynecology, stated there is a problem in using CVS in the case

of twin fetuses because of the potential for “cross-

contamination . . . between the placentas” or two samples from

only one fetus. Thus, in her opinion, a 1-in-20 chance exists

that a CVS in a pregnancy with twin fetuses will provide mixed

information, thereby requiring further testing such as

amniocentesis. Additionally, Dr. D’Alton testified that there

is a “potential for misdiagnosis with CVS that is not there

with amniocentesis.”

B. Analysis

In addressing the Doctors’ challenge to the sufficiency of

the evidence to prove that, if Julie had undergone CVS, the

result would have shown the chromosomal abnormality associated

with Down syndrome, we apply established principles of

appellate review. A plaintiff who is “[a]rmed with a jury

verdict approved by the trial court, . . . stands in ‘the most

favored position known to the law.’ ” Bitar v. Rahman, 272 Va.

9
130, 137, 630 S.E.2d 319, 323 (2006) (quoting Ravenwood Towers,

Inc. v. Woodyard, 244 Va. 51, 57, 419 S.E.2d 627, 630 (1992)).

When a trial court has refused to strike a plaintiff’s evidence

or to set aside a jury verdict, the well-established standard

of appellate review requires this Court to determine whether

the evidence presented at trial, taken in the light most

favorable to the plaintiff, was sufficient to support the jury

verdict in favor of the plaintiff. Id. at 141, 630 S.E.2d at

325-26. We will not set aside a trial court’s judgment

sustaining a jury verdict unless it is “plainly wrong or

without evidence to support it.” Code § 8.01-680; see also

Bitar, 272 Va. at 137, 630 S.E.2d at 323.

In Julie’s wrongful birth case, as in any medical

malpractice action, one of the elements that a plaintiff must

prove is “a causal connection between the breach of duty and

any claimed injury or damage.” Naccash v. Burger, 223 Va. 406,

414, 290 S.E.2d 825, 829 (1982); see also Bryan v. Burt,

254 Va. 28, 34, 486 S.E.2d 536, 539–40 (1997) (“[A] plaintiff

must establish not only that a defendant violated the

applicable standard of care, and therefore was negligent, the

plaintiff must also sustain the burden of showing that the

negligent acts constituted a proximate cause of the injury.”);

Brown v. Koulizakis, 229 Va. 524, 532, 331 S.E.2d 440, 446

(1985) (same).

10
 Although the issue of proximate causation is normally a

question of fact for the jury to determine, a court may decide

the issue “when reasonable persons could not differ.” Jenkins

v. Payne, 251 Va. 122, 128, 465 S.E.2d 795, 799 (1996); accord

Hadeed v. Medic-24, Ltd., 237 Va. 277, 285, 377 S.E.2d 589, 593

(1989). Expert testimony is generally required to establish

not only the appropriate standard of care and a deviation from

the standard, but also “ ‘that such a deviation was the

proximate cause of the claimed damages.’ ” Perdieu v.

Blackstone Family Practice Ctr., Inc., 264 Va. 408, 420,

568 S.E.2d 703, 710 (2002) (quoting Raines v. Lutz, 231 Va.

110, 113, 341 S.E.2d 194, 196 (1986)); accord Bitar, 272 Va. at

138, 630 S.E.2d at 323.

In the case before us, Julie claimed the Doctors breached

the standard of care by failing to inform her about the

availability of CVS either prior to or during her pregnancy.

She further alleged that, if she had known about CVS at a time

during the pregnancy when she could have had the test, she

would have done so and would have terminated her pregnancy if

the result had been positive for Down syndrome.

Julie, however, did not prove to a reasonable degree of

medical probability that, if she had undergone CVS, the result

would have shown the chromosomal abnormality indicative of Down

syndrome. None of Julie’s medical expert witnesses opined

11
about what the result of CVS would have been if Julie had

undergone the procedure. Moreover, the Granatas acknowledged

before the circuit court that no such evidence existed in the

record. Thus, Julie failed to establish that the Doctors’

breach of the standard of care was a proximate cause of the

wrongful birth of her twin daughters.

Julie, nevertheless, contends Dr. Williams’ testimony,

read from medical literature that classified CVS as a

“definitive diagnostic test,” provided the requisite proximate

cause. Julie argues on appeal that the term “definitive” means

CVS results would have been positive if she had undergone the

procedure. We are not persuaded by her argument. The term

“definitive” means “serving to supply a final answer, solution,

or evaluation and to end an unsettled unresolved condition.”

Webster’s Third New International Dictionary 592 (1993). The

term does not signify that a certain answer will be provided;

it indicates only that some answer will be ascertained.

Because her twin daughters unquestionably have Down

syndrome, Julie also contends she is entitled to an inference

that if she had undergone CVS, the result would have been

positive for Down syndrome. This is so, according to Julie,

because in CVS, the laboratory technician has only to count the

number of chromosomes to determine whether there is an extra

12
copy of chromosome 21, meaning the presence of Down syndrome.

Again, we do not agree.

This wrongful birth case is not one of those “rare

instances” in which expert testimony is not required to prove,

among other things, that breach of the standard of care was a

proximate cause of the claimed damages. Beverly Enterprises

Virginia, Inc. v. Nichols, 247 Va. 264, 267, 441 S.E.2d 1, 3

(1994); see also Coston v. Bio-Medical Apps. of Va., 275 Va. 1,

5, 654 S.E.2d 560, 562 (2008). Whether the result of CVS would

have been positive for Down syndrome if Julie had undergone

that procedure is not a matter within the common knowledge and

experience of a jury. See Perdieu, 264 Va. at 420–21, 568

S.E.2d at 710–11. Furthermore, the Granatas’ evidence from

their medical expert witnesses showed that many patients

require a follow-up amniocentesis after receiving a positive

CVS. The Granatas, through their medical experts, also

presented evidence about the risks of false positive and false

negative results with CVS.

Thus, we conclude that the circuit court erred in refusing

to set aside the jury verdict in Julie’s favor. 5 The judgment

was without evidence to support it. Code § 8.01-680.

5
In light of our decision, we will not address the
Doctors’ other assignments of error.

13
 III. JOSEPH’S APPEAL

A. Relevant Facts

With regard to the questions whether Joseph proved a

physician-patient relationship with Dr. Solos-Kountouris and if

not, whether Dr. Solos-Kountouris nevertheless undertook to

provide Joseph with health care, Joseph acknowledges that he

must rely on the events that transpired during Julie’s April

19, 2002 appointment to establish that Dr. Solos-Kountouris

owed him a duty of care. Joseph testified that he first

accompanied Julie to the Doctors’ office on that date and

conceded at trial and before this Court that all the alleged

negligence occurred on or before April 19, 2002. Therefore, we

focus on the facts surrounding Julie’s April 19, 2002

appointment.

In that regard, Joseph provided the only relevant

testimony. 6 During his direct examination, the following

exchange occurred:

Q. [Counsel for the Granatas] I direct your
attention then, Mr. Granata, specifically to the date
of April 19th. Do you recall anything at all that
was significant?

A. [Joseph] I do. April 19th was the first
time I went to the doctor with Julie. It was at the

6
Julie’s testimony confirmed that Joseph accompanied her
to the April 19th appointment but provided no specific
information concerning any interaction between Dr. Solos-
Kountouris and Joseph. Dr. Solos-Kountouris did not mention
Joseph in connection with the April 19th appointment.

14
Burke office. I remember going in the office and
waiting in a chair next to Julie.

We filled out some paperwork. We also filled
out a genetic screening questionnaire, and then they
came to get Julie and I started to walk back to be
with her for the exam, and they asked me to wait
outside until they would call me at a later time.

Q. What happened then when they brought you
back?

A. I went back. Dr. Sol[o]s, myself and Julie
were discussing her pregnancy. I remember discussing
the genetic questionnaire. I remember when Julie was
filling out the questionnaire my nephew had something
called Prader-Willi, and Julie was writing down that
it was a form of Down syndrome, and I remember
telling her I don’t think it’s a form of Down
syndrome.

I wouldn’t put it there in a spot where it had,
I guess, any genetic Down syndrome-related children
or relatives. We spoke about that genetic screening
sheet for a while. I remember the doctor mentioning
amniocentesis. I remember that we talked about if the
twins were in one egg or in two sacs . . . .

Q. Can you tell us what Dr. Sol[o]s told the
two of you when she was discussing the genetic
screening form[?]

A. When we were discussing the genetic
screening form, I remember her asking some questions
about my nephew, about my ethnicity. If there was
any other history in my family background that had
any kind of genetic disorder.

Q. Why were you there at the appointment with
Julie?

A. Well, because I was – you know, we were a
family. That was part of what we were going through
together. This was my children as well.

Q. What recommendations, if any, did Dr.
Sol[o]s make to the two of you?

15
 A. Again, I believe she recommended
amniocentesis, and I believe she recommended a
geneticist.

Q. Let me ask you specifically if you can tell
us whether or not the word “CVS” was mentioned by
her.

A. I never heard that word ever until after the
twins were born.

. . . .

Q. Let me ask [w]hat was your reason for being
there to discuss these issues?

A. Because I was an active participant in the
pregnancy. I wanted to support Julie, and I was
seeking guidance from her doctors.

Joseph gave the following relevant testimony during cross-

examination:

Q. [Counsel for the Doctors] When you attended
the visit on April 19th, 2002, that was conducted by
Dr. Sol[o]s-Kountouris, was advanced maternal age
discussed?

A. [Joseph] Yes. When I was in the room there
was a portion of the time when I was outside. When I
was invited into the room to discuss the
questionnaire, that was certainly a topic that was
discussed as well as the twins being a potentially
high-risk pregnancy because of those things.

Q. So the risks were discussed of this
pregnancy?

A. That’s correct.

Q. You also, I think, indicated to us Dr.
Sol[o]s-Kountouris discussed the possibility or
recommended amniocentesis at that time; is that
correct?

16
 A. That’s correct . . . she also said there was
plenty of time, but she wanted to put it out there so
we had an opportunity to consider it.

. . . .

Q. Did Dr. Sol[o]s-Kountouris also talk to you
about genetic counseling at that time?

A. I remember the conversation about genetic
counseling. I don’t remember specifically back and
forth – it was during the time we were actually
discussing the genetic questionnaire, and I remember
questions about my nephew. I remember questions
about my ethnicity.

. . . .

Q. And you participated in the completion of
the genetic screening sheet on the April 19th visit?

A. Could you define what you mean by
“completion.” Did I help fill it out? Yes.

Q. You provided input to that form?

A. Yes.

In addition to Joseph, two of the Granatas’ expert

witnesses, Dr. Williams and Dr. Wapner, provided testimony

relevant to the issues in Joseph’s appeal. They opined about

the relationship between an obstetrician and a father. Dr.

Williams did not consider a husband to be an obstetric patient

because there is no treatment or service of an obstetrical or

gynecological nature that can be provided to a male individual.

Dr. Williams, however, did state that when a physician takes

care of a pregnant woman, the physician is “taking care of a

couple[, s]o in that case the husband is not specifically an OB

17
patient, but we’re taking care of the family.” According to

Dr. Williams, when a husband accompanies “his wife as the

husband,” they are “entitled to receive information regarding

care of the pregnancy as well.” Dr. Wapner stated, “[W]hen

you’re counseling about genetic risks to a fetus you are

counseling the couple which includes – the woman and – and the

man.” Finally, Dr. Williams acknowledged that, if the term

“medical care” is defined as the “giving of advice,” then a

husband should receive medical care.

B. Analysis

Although the circuit court granted the Doctors’ motion to

strike the evidence in Joseph’s case, it did so after the jury

had returned a verdict in his favor. Regardless, the standard

of appellate review is the same: whether the evidence viewed in

the light most favorable to the plaintiff is sufficient to

sustain a jury verdict in favor of the plaintiff. Bitar, 272

Va. at 141, 630 S.E.2d at 325-26.

The decision as to whether a physician-patient

relationship exists “is a question of fact, turning upon a

determination whether the patient entrusted his treatment to

the physician and the physician accepted the case.” Lyons v.

Grether, 218 Va. 630, 633, 239 S.E.2d 103, 105 (1977). “A

physician’s duty arises only upon the creation of a physician–

patient relationship; that relationship springs from a

18
consensual transaction, a contract, express or implied, general

or special.” Id.; accord Washburn v. Klara, 263 Va. 586, 590,

561 S.E.2d 682, 685 (2002) (“[T]he physician-patient

relationship is a consensual one.”) (citing Pugsley v.

Privette, 220 Va. 892, 899, 263 S.E.2d 69, 74 (1980)); see also

Harris v. Kreutzer, 271 Va. 188, 198, 624 S.E.2d 24, 30 (2006);

Didato v. Strehler, 262 Va. 617, 626, 554 S.E.2d 42, 47 (2001).

Joseph first argues he meets the definition of the

term “patient” as defined in Virginia’s Medical

Malpractice Act, (the Act), Code §§ 8.01-581.1 through -

581.20:1, and therefore, Dr. Solos-Kountouris owed him a

duty of care as a patient. In relevant part, the term

“ ‘[p]atient’ means any natural person who receives or

should have received health care from a licensed health

care provider.” Code § 8.01-581.1. Under the Act, the

term “ ‘[h]ealth care’ means any act, professional

services in nursing homes, 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.” Code § 8.01-

581.1.

Relying on these definitions and the testimony of Dr.

Williams and Dr. Wapner, Joseph contends that a

19
physician’s advice about genetic testing constitutes

“health care” under the Act and that Dr. Solos-Kountouris’

failure to advise about the availability of CVS was an

“act . . . which should have been . . . furnished.”

Code § 8.01-581.1. Continuing, Joseph asserts he was a

person who should have received information from Dr.

Solos-Kountouris about CVS and was, therefore, a

“patient.”

Joseph’s argument, however, ignores the language

included at the end of the definition of “health care,”

referring to any act or treatment which should have been

furnished “during the patient’s medical diagnosis, care,

treatment or confinement.” Code § 8.01-581.1 (emphasis

added). As already noted, only the events that occurred

during Julie’s April 19, 2002 appointment are relevant to

the question whether Dr. Solos-Kountouris diagnosed, cared

for, or treated Joseph, in addition to Julie, on that

date. The facts surrounding the appointment, viewed in

the light most favorable to Joseph, show that Joseph

accompanied Julie to the Doctors’ office, assisted Julie

in filling out the genetic screening questionnaire, and

responded to questions from Dr. Solos-Kountouris about his

family background as to genetic disorders. Joseph was

excluded from the initial portion of Julie’s appointment

20
with Dr. Solos-Kountouris and was, in Joseph’s words,

“invited into the room to discuss the questionnaire.”

Although Dr. Solos-Kountouris discussed and/or

recommended amniocentesis and genetic counseling, the

evidence demonstrates her “diagnosis, care, [or]

treatment” on that day was directed to Julie, not to

Joseph. Code § 8.01-581.1. In other words, there is no

evidence that Joseph “entrusted his treatment to [Dr.

Solos-Kountouris] and the physician accepted the case.”

Lyons, 218 Va. at 633, 239 S.E.2d at 105; cf. Gray v.

INOVA Health Care Servs., 257 Va. 597, 599-600, 514 S.E.2d

355, 356 (1999) (physician had no duty of care to the

mother of a patient because the mother was not the

physician’s patient upon whom the procedure was being

performed and any negligence was a breach of duty to the

patient, not the mother); Bulala v. Boyd, 239 Va. 218,

230, 389 S.E.2d 670, 676 (1990) (stating that “the father,

of course, was not the [obstetrician’s] ‘patient,’ within

the meaning of the Act”); Dehn v. Edgecombe, 865 A.2d 603,

615 (Md. 2005) (“A duty of care does not accrue purely by

virtue of the marital status of the patient alone; some

greater relational nexus between doctor and patient’s

spouse must be established.”).

21
 Furthermore, Joseph and Julie did not allege that the

Doctors breached the standard of care by failing to advise

them as a couple about genetic counseling or to recommend

genetic screening tests that either Joseph alone or both

of them would need to undergo. Instead, they asserted that

the Doctors breached the standard of care by failing to

inform Julie about the availability of CVS during the

first trimester of her pregnancy. Obviously, Julie is the

only person who could consent to and undergo that

procedure. Information about CVS was not an “act . . .

which should have been . . . furnished” to Joseph. Code

§ 8.01-581.1.

The medical expert witnesses’ testimony about what

constitutes health care does not alter our conclusion. In the

context of a pregnancy, a husband may be entitled to receive

such information about a fetus’ risk of having genetic

abnormalities. The question whether Joseph had a physician-

patient relationship with Dr. Solos-Kountouris, however, turns

solely on the facts surrounding the April 19, 2002 appointment.

See Lyons, 218 Va. at 633, 239 S.E.2d at 105.

Thus, we conclude the evidence, as a matter of law, was

insufficient to show “a consensual transaction giving rise to a

physician-patient relationship and a duty to perform the

service contemplated.” Id.; see also Harris, 271 Va. at 199-

22
200, 624 S.E.2d at 30-31 (finding a limited physician-patient

relationship exists in the context of a Rule 4:10 examination

because the physician expressly consents to the relationship

when he agrees to conduct the examination and the patient’s

consent is implied); Prosise v. Foster, 261 Va. 417, 423, 544

S.E.2d 331, 334 (2001) (refusing to impose a duty of care on an

on-call physician in a teaching hospital in the absence of

proof that the doctor agreed to accept responsibility for the

care of the patient).

Relying on this Court’s decision in Didato, Joseph next

argues that even in the absence of a physician-patient

relationship, Dr. Solos-Kountouris undertook to provide health

care to him and was thus required to act in accordance with the

standard of care. See Code § 8.01-581.20. In Didato, we noted

the legal principle that “one who assumes to act, even though

gratuitously, may thereby become subject to the duty of acting

carefully, if he acts at all.” 262 Va. at 628, 554 S.E.2d at

48 (quoting Nolde Bros. v. Wray, 221 Va. 25, 28, 266 S.E.2d

882, 884 (1980)). The Court concluded the plaintiffs had “pled

sufficient facts which, if proven at trial, would permit the

finder of fact to conclude that the defendants assumed the

duty” to provide health care. Didato, 262 Va. at 629, 554

S.E.2d at 48. Additionally, we rejected “[t]he defendants’

contention that they could not assume a duty to a non-patient

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to comply with the standard of care in Code § 8.01-581.20.”

Id.

As we recognized in Didato, a physician can, in certain

circumstances, affirmatively undertake to provide health care

to an individual, who prior to that moment was not the

physician’s patient, and thereby assume the duty to comply with

the applicable standard of care. But see Code § 8.01-225.

Such a scenario is in contrast to the more traditional

situation where the patient “knowingly and voluntarily seeks

the professional assistance of the physician, and the physician

knowingly agrees to treat the patient.” Kelley v. Middle Tenn.

Emergency Physicians, P.C., 133 S.W.3d 587, 593 (Tenn. 2004).

Nevertheless, in the former circumstance, the physician-patient

relationship arises by implication because “the doctor takes

affirmative action to participate in the care and treatment of

a patient.” Sterling v. Johns Hopkins Hosp., 802 A.2d 440, 455

(Md. Ct. Spec. App. 2002); see also Lownsbury v. VanBuren, 762

N.E.2d 354, 360 (Ohio 2002) (“[A] physician-patient

relationship, and thus a duty of care, may arise from whatever

circumstances evince the physician’s consent to act for the

patient’s medical benefit.”).

In Didato, the trial court sustained the defendants’

demurrers, so we based our decision solely on the plaintiffs’

pleadings. 262 Va. at 630, 554 S.E.2d at 49. We have not had

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the occasion before today to decide whether particular evidence

adduced at trial was sufficient to prove a physician undertook

to provide health care to a non-patient, thereby assuming the

duty to comply with the standard of care. We agree with the

holding in Jenkins v. Best, 250 S.W.3d 680, 693 (Ky. Ct. App.

2007), requiring a physician to “personally engage[] in some

affirmative act amounting to a render[ing of] services to

another.” Id. at 693 (second alteration in original; internal

quotation marks omitted); see also Stanley v. McCarver, 92 P.3d

849, 853 (Ariz. 2004) (in the absence of the traditional

physician-patient relationship, the court nevertheless imposed

a duty of care because the physician undertook, for

consideration, to interpret the patient’s x-rays); Dekens v.

Underwriters Laboratories Inc., 132 Cal. Rptr. 2d 699, 702

(Cal. Ct. App. 2003) (in applying the “negligent undertaking

doctrine,” the actor “must specifically have undertaken to

perform the task that he is charged with having performed

negligently, for without the actual assumption of the

undertaking there can be no correlative duty to perform that

undertaking carefully”).

Applying these principles to Joseph’s claim that Dr.

Solos-Kountouris affirmatively undertook to provide him with

health care, we again conclude the evidence was insufficient as

a matter of law. As demonstrated by our prior discussion,

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Joseph did not establish an affirmative act by Dr. Solos-

Kountouris during the April 19, 2002 appointment that would

amount to the rendering of health care to Joseph. See Jenkins,

250 S.W.3d at 693. Thus, Dr. Solos-Kountouris assumed no duty

to comply with the applicable standard of care with regard to

Joseph. We therefore hold that the circuit court did not err

in granting the Doctors’ motion to strike the evidence in

Joseph’s case.

IV. CONCLUSION

We will reverse the judgment of the circuit court in the

Doctors’ appeal. The evidence was insufficient as a matter of

law to prove to a reasonable degree of medical probability that

if Julie had undergone CVS, the result would have been positive

for Down syndrome.

We will affirm the judgment of the circuit court in

Joseph’s appeal. The evidence was insufficient as a matter of

law to prove that either he had a physician-patient

relationship with Dr. Solos-Kountouris or Dr. Solos-Kountouris

engaged in an affirmative act amounting to the rendering of

health care.

Record No. 071894 – Reversed and final judgment.
Record No. 071897 – Affirmed.

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