Oraee v. Breeding

Present: All the Justices

SAMAD ORAEE, M.D., ET AL.

v. Record No. 050206 OPINION BY JUSTICE CYNTHIA D. KINSER
November 4, 2005
HARLIS C. BREEDING, JR.,
EXECUTOR OF THE ESTATE OF
SHERRY E. BREEDING, DECEASED

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

In this appeal, we revisit the scope of immunity from

civil liability afforded a physician under Code § 8.01-

581.18(B) and our decision in Auer v. Miller, 270 Va. 172,

613 S.E.2d 421 (2005). We conclude that the immunity

applies only when a physician fails to review, or take

action in response to the receipt of, a report containing

the results of a laboratory test or examination conducted

“not at the request or with the written authorization of a

physician.” Code § 8.01-581.18(A). Thus, we will affirm

the judgment of the circuit court refusing to grant

immunity pursuant to Code § 8.01-581.18(B) to a physician

who failed to obtain the results of certain laboratory

tests requested by another physician. In reaching this

result, we will also overrule our decision in Auer.

MATERIAL PROCEEDINGS AND FACTS

The appellee, Harlis C. Breeding Jr., executor of the

estate of Sherry E. Breeding, deceased, filed a medical
malpractice action against Samad Oraee, M.D., and his

employer, Samad Oraee M.D., P.C., (collectively, Dr.

Oraee). The jury returned a verdict in favor of the

plaintiff against Dr. Oraee.1 In a motion for summary

judgment and in motions to strike the plaintiff’s evidence

both at the close of that evidence and at the conclusion of

all the evidence, Dr. Oraee argued that he was immune from

civil liability pursuant to Code § 8.01-581.18(B). The

circuit court denied the various motions and entered

judgment for the plaintiff.

The events precipitating this medical malpractice

action commenced on January 3, 2003, when the decedent

sought treatment at an emergency room for complaints of

facial drooping. Dr. Oraee was called in for a neurology

consultation. Because a certain test was not available

during the weekend hours at the hospital where the decedent

first went, Dr. Oraee transferred her to a different

hospital so that she could undergo a test known as a

1
Breeding also named as defendants Magnus K.
Ikhinmwin, M.D., and Mert Kivanc, D.O., along with their
respective employers, Northern Virginia Nephrology
Associates, P.C., and Mert Kivanc, D.O., P.C. The jury
found in favor of the plaintiff against Dr. Kivanc and his
employer, but it returned a verdict against the plaintiff
in favor of Dr. Ikhinmwin and his employer. The issue in
this appeal does not involve these defendants.

2
magnetic resonance imaging scan (MRI) of her brain.2 The

MRI revealed that the decedent had suffered a stroke as

well as prior strokes on both sides of her brain. She had

not, however, exhibited symptoms of a stroke until she

experienced the facial drooping associated with the stroke

that caused her to go to the emergency room.

As a result of the MRI and other diagnostic tests, Dr.

Oraee ruled out several possible causes for the decedent’s

strokes. At that point, he was left with a possible

diagnosis of a “clotting disorder” perhaps caused by

“antiphospholipid antibody syndrome.”3 Consequently, Dr.

Oraee requested a rheumatology consultation by Dr. Kivanc.

On January 7, 2003, while the decedent was still

hospitalized, Dr. Kivanc evaluated the decedent’s condition

and ordered multiple laboratory tests. Some of the tests

were specifically for the purpose of determining whether

the decedent had antiphospholipid antibody syndrome. Dr.

2
Dr. Ikhinmwin was listed as the decedent’s attending
physician at the second hospital.
3
According to one expert witness who testified at
trial, the term “antiphospholipid antibody syndrome” means
“a syndrome of probably several different causes in which
the body inappropriately makes antibodies or has other
derangements, abnormalities in the clotting system that
makes it more likely for [a person] to have clots.”
Another expert witness characterized it as “a hyper
coagulable state, which means that patients have excessive
clotting and form small thrombi or little clots
characteristically in both veins and arteries.”

3
Oraee knew that Dr. Kivanc had seen the decedent and had

ordered those particular blood tests. Dr. Oraee also knew

that it would take five to ten days for the results of the

tests to be available.

The next day, January 8, Dr. Oraee discharged the

decedent from the hospital and told her to follow up with

him as an outpatient. An appointment was scheduled for the

decedent to come to Dr. Oraee’s office on January 22.

Because the decedent’s daughter called Dr. Oraee’s office

and reported that her mother was not feeling well, the

appointment was changed to January 17. At that

appointment, Dr. Oraee knew that the clotting disorder was

still being considered as the cause of the decedent’s

strokes, but he did not take any action to obtain the

results of the blood tests that had been outstanding at the

time of the decedent’s discharge from the hospital. The

results of the tests, which were available on January 13,

confirmed that the decedent had antiphospholipid antibody

syndrome. Instead, Dr. Oraee discontinued one of the two

antiplatelet medications that had been prescribed at the

time of her discharge from the hospital and reported to her

primary care physician that the decedent was “much better.”

On January 29, the decedent was again admitted to a

hospital, having suffered “a second massive stroke.”

4
During that admission, the diagnosis of antiphospholipid

antibody syndrome was again confirmed, and the decedent,

for the first time, was placed on anticoagulant medication.

As a result of that stroke, the decedent died on March 12,

2003.

During the trial of this action, two doctors testified

as expert witnesses for the plaintiff with regard to the

allegations against Dr. Oraee. Both witnesses concluded

that the decedent had antiphospholipid antibody syndrome

and that she should have been placed on anticoagulant

medication, as opposed to antiplatelet medication, no later

than January 17 when Dr. Oraee saw her in his office

following her discharge from the hospital. Both experts

also opined that, if the decedent had been placed on

anticoagulant medication on January 17, she would not have

suffered the subsequent massive stroke on January 29 and

would still be alive.

With regard to the question whether Dr. Oraee breached

the applicable standard of care, one of the witnesses, Dr.

Bruce T. Adornato, testifying as an expert in the field of

neurology, opined that, subsequent to the decedent’s

discharge from the hospital and the laboratory test results

becoming available, the standard of care required Dr. Oraee

to inquire about and obtain the results of the tests. This

5
is so because the results were abnormal and had

implications for the decedent’s treatment. Dr. Adornato

further testified that the standard of care required Dr.

Oraee to offer the decedent the opportunity to be treated

with anticoagulant medication, “i.e., Coumadin rather than

just aspirin.” During cross-examination, Dr. Adornato

agreed that Dr. Oraee’s treatment of the decedent did not

fall below the applicable standard of care until January

17, when Dr. Oraee should have diagnosed antiphospholipid

antibody syndrome and offered the decedent appropriate

treatment. But, as Dr. Adornato explained, Dr. Oraee could

not have made the correct diagnosis without the results of

the laboratory tests.

The other witness, Dr. Lee Levitt, an expert in the

fields of hematology and medical oncology, testified

similarly. Dr. Levitt opined that, at the time of the

decedent’s follow-up visit on January 17, Dr. Oraee

breached the standard of care by not being aware of the

results of the laboratory tests, which would have made “a

clear difference in her diagnosis and in management.” As

Dr. Levitt explained, Dr. Oraee was involved in the request

for a consultation by a rheumatologist, the appropriate

laboratory tests were requested to make a diagnosis of

6
antiphospholipid antibody syndrome, those tests were

performed, and the results were available.

ANALYSIS

The sole question in this case is whether the circuit

court erred in refusing to grant Dr. Oraee immunity from

civil liability pursuant to the provisions of Code § 8.01-

581.18(B). The question is one of law, meaning that we

review the circuit court’s resolution of it de novo.

Davenport v. Little-Bowser, 269 Va. 546, 552, 611 S.E.2d

366, 369 (2005). The statute at issue states:

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 or by the State Department of
Health.

Code § 8.01-581.18(B).

As both parties recognize, answering the question

raised in this appeal implicates our recent decision in

Auer. There, the trial court granted immunity under Code

§ 8.01-581.18(B) to a defendant doctor, Nicolas Auer’s

cardiologist, for his alleged failure to review or to take

any action in response to the results of a laboratory test

7
ordered by a cardiovascular surgeon during Auer’s

hospitalization. Auer, 270 Va. at 175, 613 S.E.2d at 422.

Auer had undergone surgery to remove his native aortic

valve and to replace it with a prosthetic valve. Id. at

175-76, 613 S.E.2d at 423. The surgeon had ordered a

culture and sensitivity test on the native valve, and the

results of the test were positive for staphylococcus. Id.

at 176, 613 S.E.2d at 423. The cardiologist saw Auer

several times during the hospitalization and prepared a

discharge summary, but he never reviewed the report of the

test results even though the report had been posted to

Auer’s chart. Id. The surgeon likewise failed to review

the report. Id. Consequently, the infection remained

untreated, and Auer subsequently died from endocarditis.

Id.

On appeal, we affirmed the trial court’s judgment.

Id. at 179, 613 S.E.2d at 423. We found “the language of

subsection B of Code § 8.01-581.18 to be clear and

unambiguous” and stated that this subsection

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.

8
Id. at 177, 613 S.E.2d at 423. We concluded that Code

§ 8.01-581.18(B) applied to the cardiologist because he

“neither requested nor authorized” the culture and

sensitivity test and Auer did not provide him with the

report of the test results and request a consultation. Id.

at 177, 613 S.E.2d at 424.

Dr. Oraee argues that, since the allegations

concerning his breach of the standard of care were confined

to his failure to obtain the results of the blood tests

ordered by Dr. Kivanc and to respond with appropriate

treatment, our holding in Auer is dispositive of the

question presented in this case. Dr. Oraee further points

out that there is no evidence that the decedent provided

the results of those blood tests to him with a request for

consultation. Thus, in Dr. Oraee’s view, “all the elements

for granting immunity were in place and [the plaintiff]

offered no other theory of liability against [him]

independent of the test results.”

Responding, the plaintiff asserts that Auer is

factually distinguishable from the present case and thus

not controlling. The plaintiff points out that the

cardiologist in Auer did not know about the culture and

sensitivity test ordered by the cardiovascular surgeon and

was not involved in the decision to order that test. Id.

9
at 176, 613 S.E.2d at 423. Continuing, the plaintiff

emphasizes that Dr. Oraee, unlike Auer’s cardiologist, made

a possible diagnosis of antiphospholipid antibody syndrome

and consequently requested the rheumatology consultation;

he knew that Dr. Kivanc had ordered specific blood tests to

determine whether the decedent had this clotting disorder;

he knew at the time of the plaintiff’s discharge from the

hospital that the results of the test would not be

available for five to ten days; and he scheduled a follow-

up appointment for the decedent. In the plaintiff’s words,

“[s]imply because [Dr. Oraee] failed to sign the slip for

the lab work does not mean that he did not authorize or

intend for the lab work to be completed, thus making [Code

§ 8.01-581.18(B)], and Auer, inapposite.” The plaintiff

also claims that Dr. Oraee’s overall breach of the standard

of care was his failure to properly diagnose and treat the

decedent’s condition and that it was not merely Dr. Oraee’s

failure to review and respond to the results of the

laboratory tests.

Alternatively, the plaintiff argues that subsection A

and subsection B of Code § 8.01-581.18 must be read

together and that subsection B cannot be viewed in

isolation. According to the plaintiff, the intent of the

statute is to direct the appropriate course of action when

10
an individual, as opposed to a physician, requests a

laboratory test or examination. The plaintiff contends the

provisions of subsection A require the report of the

results of such test or examination to be delivered to the

individual who was tested or examined and to state in bold

type that the individual has the responsibility to arrange

for a consultation with a physician to review the report

and interpret the results.

In light of the context in which subsection A applies,

the plaintiff further argues that subsection B grants

immunity only when a physician fails to review, or take

action in response to the receipt of, a report containing

the results of a test or examination obtained by an

individual on his/her own initiative. In other words, the

plaintiff’s position is that subsection B does not come

into play if the report at issue contains the result of a

test or examination requested or authorized by a physician.

This interpretation, in the plaintiff’s view, is consistent

with the language of the statute when read as a whole,

including its title “Delivery of results of laboratory

tests and other examinations not authorized by physician;

immunity of physician.” Code § 8.01-581.18.

We do not agree with the plaintiff’s position that the

present case is factually distinguishable from our decision

11
in Auer. Like the cardiologist in Auer, Dr. Oraee failed

to review an available and critical report reflecting the

results of a laboratory test that another physician had

authorized. In both instances, the report contained

information that directly affected the appropriate medical

treatment for the patient. For purposes of deciding the

question before us, it does not matter that Dr. Oraee knew

about the laboratory tests ordered by Dr. Kivanc.

Nor are we persuaded by the plaintiff’s argument that

Dr. Oraee implicitly authorized the laboratory tests at

issue. Dr. Oraee’s request for the rheumatology

consultation after he suspected that the decedent had

antiphospholipid antibody syndrome is not the same as

requesting laboratory tests. Likewise, we do not agree

with the plaintiff’s assertion that the breach of the

standard of care at issue was something more than Dr.

Oraee’s failure to review and take appropriate action in

response to the report of the laboratory test results.

Thus, we turn to the plaintiff’s argument regarding

the proper interpretation of Code § 8.01-581.18. To adopt

the plaintiff’s position would require that we overrule our

decision in Auer, and he asks us to do so. Thus, the

doctrine of stare decisis is necessarily implicated.

12
 That doctrine plays a significant role in the
orderly administration of justice by assuring
consistent, predictable, and balanced application
of legal principles. And when a court of last
resort has established a precedent, after full
deliberation upon the issue by the court, the
precedent will not be treated lightly or ignored,
in the absence of flagrant error or mistake.

Selected Risks Ins. Co. v. Dean, 233 Va. 260, 265, 355

S.E.2d 579, 581 (1987) (citing Kelly v. Trehy, 133 Va. 160,

169, 112 S.E. 757, 760 (1922)); accord Pulliam v. Coastal

Emergency Servs. of Richmond, Inc., 257 Va. 1, 10, 509

S.E.2d 307, 312 (1999); Nunnally v. Artis, 254 Va. 247,

252-53, 492 S.E.2d 126, 128-29 (1997). The question, then,

is whether our decision in Auer was a “flagrant error or

mistake.” Selected Risks, 233 Va. at 265, 355 S.E.2d at

581.

In Auer, we did not expressly address the argument

that, when subsection B is read in light of subsection A,

the immunity granted in subsection B is available only when

the report at issue is one generated as a result of an

individual’s request, as opposed to a physician’s request

or written authorization, for a laboratory test or

examination. Instead, we focused solely on the provisions

of subsection B in reaching our decision.

However, we have a duty, whenever possible, “to

interpret the several parts of a statute as a consistent

13
and harmonious whole so as to effectuate the legislative

goal.” Virginia Elec. & Power Co. v. Board of County

Supervisors of Prince William County, 226 Va. 382, 387-88

309 S.E.2d 308, 311 (1983). Generally, the Court “will

look to the whole body of [a statute] to determine the true

intention of each part.” McDaniel v. Commonwealth, 199 Va.

287, 292, 99 S.E.2d 623, 627 (1957); accord Rockingham

Coop. Farm Bureau, Inc. v. City of Harrisonburg, 171 Va.

339, 344, 198 S.E. 908, 910 (1938). “[A] statute should be

read and considered as a whole, and the language of a

statute should be examined in its entirety to determine the

intent of the General Assembly from the words contained in

the statute.” Department of Medical Assistance Servs. v.

Beverly Healthcare of Fredericksburg, 268 Va. 278, 285, 601

S.E.2d 604, 607-08 (2004). “In doing so, the various parts

of the statute should be harmonized so that, if

practicable, each is given a sensible and intelligent

effect.” Colchester Towne Condominium Council of Co-Owners

v. Wachovia Bank, N.A., 266 Va. 46, 51, 581 S.E.2d 201, 203

(2003) (citing VEPCO v. Prince William Co., 226 Va. 382,

387-88, 309 S.E.2d 308, 311 (1983)).

Applying these principles requires subsection B of

Code § 8.01-581.18 to be construed together with subsection

A. As the plaintiff argues, subsection A pertains only to

14
a laboratory test or examination conducted “not at the

request or with the written authorization of a physician.”

Code § 8.01-581.18(A). For example, subsection A is

applicable when a person elects, on his/her own initiative,

to be tested for a sexually transmitted disease. In other

words, the testing would not be done at the request of or

with written authorization from a physician. In that

situation, the report stating the results of the test would

be provided directly to the person who was the subject of

the test. Id. The individual tested would then have the

responsibility to arrange for a consultation with a

physician about the test results. Id. The report itself

would have to state this responsibility in bold type. Id.

With that understanding of subsection A, it then

follows that the immunity from civil liability granted in

subsection B applies only when a physician is charged with

failing to review, or take action in response to receiving,

a report of the results of a laboratory test or examination

conducted “not at the request or with the written

authorization of a physician.” Code § 8.01-581.18(A). The

immunity granted in subsection B in essence follows the

report described in subsection A. Subsection B insulates

from civil liability any physician who fails to review that

report or to take any action in response to receiving it.

15
That immunity, however, is not available if “such report is

provided directly to the physician by the person so

examined or tested with a request for consultation.” Code

§ 8.01-581.18(B). The circumstance eliminating a

physician’s immunity in subsection B corresponds to the

provision in subsection A requiring a report of a

laboratory test or examination “conducted . . . not at the

request or with the written authorization of a physician”

to be provided directly to the person tested or examined.

Code § 8.01-581.18(A). That common requirement reflects

the General Assembly’s intent that these two subsections be

“considered as a whole.” Department of Medical Assistance

Servs., 268 Va. at 285, 601 S.E.2d at 607. Overall, the

provisions of Code § 8.01-581.18, create a mechanism for

handling reports of the results of laboratory tests or

examinations requested by an individual rather than by a

physician. The statute does not pertain to reports of

laboratory tests or examinations requested or authorized by

a physician.

To grant Dr. Oraee immunity under Code § 8.01-

581.18(B) would lead to consequences the General Assembly

could not have intended. Assume that a physician orders a

blood test that preliminarily suggests the need for

surgery, and the physician then refers the patient to a

16
surgeon. Assume further that the final report of the blood

test results demonstrates that surgery is not necessary,

but the surgeon never reviews the final report and proceeds

with surgery. Under Dr. Oraee’s interpretation of

subsection B and our decision in Auer, the surgeon would be

immune from civil liability for breaching the standard of

care merely because he did not personally request or

authorize the blood test. Furthermore, since the patient

in this hypothetical did not request the blood test, the

patient would not receive the report with the warning in

bold type that is it the patient’s responsibility to

arrange for consultation with a physician about the report.

Thus, we conclude that our decision in Auer was a

mistake. While we adhere strongly to the doctrine of stare

decisis in this Commonwealth, this is one of those rare

situations in which we cannot perpetuate a clearly

incorrect application of the law. See Nunnally, 254 Va. at

253, 492 S.E.2d at 129. It is “this Court’s obligation to

reexamine critically its precedent” and, by doing so,

“confidence in the judiciary” and “the importance of stare

decisis in our jurisprudence” will be enhanced. Id.

CONCLUSION

The doctrine [of stare decisis] grows out of
the necessity for a uniform and settled rule of
property, and definite basis for contracts and

17
 business transactions. If a decision is wrong, it
is only when it has been so long the rule of
action as that time and its continued
application, as the rule of right between
parties, demand the sanction of its error;
because when a decision has been recognized as
the law of property, and conflicting demands have
been adjusted, and contracts have been made with
reference to and on the faith of it, greater
injustice would be done to individuals, and more
injury result to society by a reversal of such
decision, though erroneous, than to follow and
observe it. But when a decision is not of this
character, upon no sound principle do we feel at
liberty to perpetuate an error into which either
our predecessors or ourselves may have
inadvertently fallen, merely upon the ground of
such erroneous decision having been previously
rendered.

Burks v. Hinton, 77 Va. 1, 24-25 (1883) (quoting Willis v.

Owen, 43 Tex. 41, 48-49 (1875)).

To reaffirm our decision in Auer would perpetuate a

mistake. Thus, the holding in Auer pertaining to Code

§ 8.01-581.18(B) is expressly overruled. Accordingly, we

conclude that the circuit court did not err in refusing to

grant immunity to Dr. Oraee under the provisions of Code

§ 8.01-581.18(B), nor did it err in denying Dr. Oraee’s

various motions and jury instruction dealing with this

statutory provision. For these reasons, we will affirm the

judgment of the circuit court.

Affirmed.

JUSTICE AGEE, with whom JUSTICE KEENAN and JUSTICE KOONTZ
join, dissenting.

18
 The majority overrules our recent decision in Auer v.

Miller, 270 Va. 172, 613 S.E.2d 421 (2005), interpreting

Code § 8.01-581.18(B), by finding that decision to be a

"mistake." In doing so, the majority holds that subsection

A of Code § 8.01-581.18 restricts the application of the

immunity provision of subsection B to only those laboratory

tests described in subsection A. I believe subsection B

clearly provides otherwise and therefore our analysis of

Code § 8.01-581.18 in Auer correctly applied the statute

and was not in error. Further, I also believe the majority

fails to properly observe the long-standing role of the

doctrine of stare decisis by overruling Auer.

I. STARE DECISIS

It is a bedrock foundation of our jurisprudence

that prior decisions of this Court are entitled to

respect and deference under the doctrine of stare

decisis. The doctrine is foundational because

in a well ordered society it is important for
people to know what their legal rights are, not
only under constitutions and legislative
enactments but also as defined by judicial
precedent, and when they have conducted their
affairs in reliance thereon they ought not to
have their rights swept away by judicial decree
. . . .

Myers v. Moore, 204 Va. 409, 413, 131 S.E.2d 414, 417

(1963).

19
 Heralded as “one of the most important principles in

the structure of our law,” stare decisis entails more than

a passing reference or fleeting mention. Id.; see also

Selected Risks Ins. Co. v. Dean, 233 Va. 260, 265, 355

S.E.2d 579, 581 (1987). As this Court has stated,

[stare decisis] plays a significant role in the
orderly administration of justice by assuring
consistent, predictable, and balanced application
of legal principles. And when a court of last
resort has established a precedent, after full
deliberation upon the issue by the court, the
precedent will not be treated lightly or ignored,
in the absence of flagrant error or mistake.

Selected Risks, 233 Va. at 265, 355 S.E.2d at 581.

In my view, the majority has failed to articulate a

compelling argument that the unanimous opinion of this

Court in Auer was of such a degree of error that stare

decisis can be cast aside. Reversing a prior opinion of

this court, particularly where the grounds to do so are so

open to question, lessens the value of stare decisis for

our jurisprudence as a whole. See Newman v. Erie Ins.

Exch., 256 Va. 501, 510-11, 507 S.E.2d 348, 353 (1998)

(Compton, J., dissenting) (“Frequent overruling of an

appellate court’s decisions tends to bring adjudications of

the tribunal ‘into the same class as a restricted railroad

ticket, good for this day and train only.’ ”).

II. CODE § 8.01-581.18

20
 Code § 8.01-581.18 provides as follows:

A. Whenever a laboratory test or other
examination of the physical or mental condition
of any person is conducted by or under the
supervision of a person other than a physician
and not at the request or with the written
authorization of a physician, any report of the
results of such test or examination shall be
provided by the person conducting such test or
examination to the person who was the subject of
such test or examination. Such report shall state
in bold type that it is the responsibility of the
recipient to arrange with his physician for
consultation and interpretation of the results of
such test or examination. The provisions of this
subsection shall not apply to any test or
examination conducted under the auspices of the
State Department of Health.

B. 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 or by the State Department of
Health.4

The majority maintains that Auer was in error because

it failed to read subsection B "in light of subsection A."

The majority opines that because subsection B follows

subsection A, "[t]he immunity granted in subsection B in

essence follows the report [prepared by a non-physician]

described in subsection A." The majority partly bases its

4
Code § 8.01-581.18(C) is omitted as it has no bearing
on any issues before the Court.

21
holding on the view that since subsection B follows

subsection A in the statute, the later subsection should be

read only as referencing the first subsection. I am aware

of no rule of statutory construction which directs such a

reading, and the majority cites none. We have not held

that a statutory subsection must be read solely in

reference to the subsection it follows; rather, we are

always guided by the plain language of the statute as the

General Assembly has written it.

As noted below, neither subsection A nor B of Code

§ 8.01-581.18 are ambiguous. The plain language of each

subsection establishes a legal duty or action wholly

independent of the other. Further, the plain language of

subsection B establishes physician immunity for certain

laboratory tests which is not dependent upon or

circumscribed in any way by the provisions of subsection A.

The General Assembly knows how to write subsection B as the

majority construes that subsection, but it did not do so.

Our duty is "to construe the law as it is written."

Hampton Roads Sanitation Dist. Comm'n v. City of

Chesapeake, 218 Va. 696, 702, 240 S.E.2d 819, 823 (1978).

"To depart from the meaning expressed by the words is to

alter the statute, to legislate and not to interpret."

22
Faulkner v. Town of South Boston, 141 Va. 517, 524, 127

S.E. 380, 382 (1925). Thus,

[w]e presume that the legislature chose,
with care, the words it used when it enacted the
statute. Courts cannot add language to the
statute the General Assembly has not seen fit to
include. Nor are they permitted to accomplish the
same result by judicial interpretation. Where the
General Assembly has expressed its intent in
clear and unequivocal terms, it is not the
province of the judiciary to add words to the
statute or alter its plain meaning.

Jackson v. Fidelity & Deposit Co., 269 Va. 303, 313, 608

S.E.2d 901, 906 (2005) (citations and internal quotation

marks omitted).

As the majority opinion accurately recites, Code

§ 8.01-581.18(A) provides that the results of a laboratory

test made "not at the request or with the written

authorization of a physician" shall be provided "to the

person who was the subject of that test." Further,

subsection A mandates that it is solely the recipient's

responsibility to arrange for any "such test" to be

reviewed by a physician. The plain language of subsection

A does not address any other subject. There is no

ambiguity in subsection A and the majority cites none.

Thus, subsection A fulfills a distinct and independent

purpose to direct the result of non-physician ordered

laboratory tests to the subject of the test and to place

23
responsibility solely on that person for any further

review. Subsection A thus sets forth a substantive

provision of law in and of itself.

Subsection A of Code § 8.01-581.18 makes no reference

to subsection B or to immunity of physicians in any way.

Importantly, neither does subsection B make reference to

subsection A.

Subsection B plainly provides, as we noted in Auer,

that "[a]ny physician shall be immune from civil liability

for any failure to review . . . any report of the results

of any laboratory test . . . which test . . . such

physician neither requested nor authorized in writing."

Code § 8.01-581.18(B)(emphasis added). Nothing in the

straightforward language of subsection B limits the scope

of its granted immunity only to tests described in

subsection A. There is no ambiguity in subsection B, and

the majority cites none. Instead, subsection B provides

exactly for what the General Assembly wrote: immunity for

physicians from liability for failure to review any

laboratory test the physician did not order or authorize.

As in the case at bar and Auer, that immunity encompasses

laboratory tests ordered by physicians other than the

defendant physician.

24
 Subsection B thus sets forth a substantive provision

of law in and of itself. It fulfills a distinct and

independent purpose, wholly different from that of

subsection A, by granting immunity to any physician

regarding any laboratory test the physician "neither

requested nor authorized in writing." Code § 8.01-

581.18(B). While, a fortiori, this would include a

laboratory test ordered by a non-physician under subsection

A, absolutely nothing in Code § 8.01-581.18 limits the

application of subsection B physician immunity to only

subsection A non-physician ordered tests. The plain

language of the statute means what it says, and we have no

authority to rewrite the statute by judicial decision.

Burlile v. Commonwealth, 261 Va. 501, 511, 544 S.E.2d 360,

365 (2001).

Although the language of Code § 8.01-581.18 is plain,

the majority nevertheless maintains that subsection A's

limitation to tests administered by non-physicians should

be read into subsection B in order to construe those

provisions together as a "consistent and harmonious whole."

But nothing in Auer's construction of Code § 8.01-581.18(B)

creates an inconsistency within the statute. There is no

requirement that two sections of the same statute be

interdependent unless the statute so provides by its terms,

25
and Code § 8.01-581.18 does not. Acknowledging subsection

B to have a meaning separate, distinct and independent from

subsection A does not create an inconsistent statute. As

noted above, each subsection has a particular purpose

independent and free standing of the other under the plain

language of the statute.

Subsection A simply directs a laboratory to send the

test results of a non-physician ordered test to the subject

of that test and imposes responsibility upon that person to

arrange for any physician review. Separate and distinct

from this function, subsection B provides physician

immunity from "any failure to review . . . any report . . .

of any laboratory test . . . which test . . . such

physician neither requested nor authorized in writing."

(Emphasis added). While related, each subsection has a

distinct and independent focus and stands alone without

need of the other in establishing a substantive legal

requirement.

The majority's contention that the language in

subsection B which limits physician immunity where a

laboratory "report is provided directly to the physician by

the person so examined" somehow limits subsection B

immunity only to subsection A tests is erroneous. As fully

discussed above, the plain language of subsection B

26
immunity encompasses any test not ordered by the physician.

The fact that subsection B immunity is restricted where the

patient delivers a copy of his laboratory test to the

physician cannot be read as circumscribing immunity only to

those subsection A tests. This is so because "any" report

includes not only those subsection A tests of the patient

which that patient or other non-physician ordered and

delivers to the physician, but also tests ordered by

another physician which the patient delivers. Thus, the

language in subsection B cannot be read as the majority

concludes to limit subsection B immunity to only subsection

A laboratory tests.

It is not uncommon for the General Assembly to

draft a statute which contains independent, though

related provisions, and this Court has repeatedly

recognized that successive provisions of a statute may

function separately. In Greenberg v. Commonwealth,

255 Va. 594, 597, 499 S.E.2d 266, 267-68 (1998), we

reversed the trial court's judgment imposing personal

liability on a check cashing company's majority

shareholder for making loans in amounts and at

interest rates prohibited by Code § 6.1-249. Another

code provision, Code § 6.1-308, set forth the

penalties for violations of Code § 6.1-249 as follows:

27
 A. Any person and the several members, officers,
directors, agents, and employees thereof, who
violate or participate in the violation of any
provision of § 6.1-249 shall be guilty of a Class
2 misdemeanor.

B. Any contract of loan in the making or
collection of which any act has been done which
violates § 6.1-249 shall be void and the lender
shall not collect, receive, or retain any
principal, interest, or charges whatsoever, and
any amount paid on account of principal or
interest on any such loan shall be recoverable by
the person by or for whom payment was made.

Greenberg, 255 Va. at 599, 499 S.E.2d at 269 (emphasis

added).

The shareholder in Greenberg argued that he could not

be individually liable under Code § 6.1-308(B) because that

subsection provided for recovery against only the lender.

Id. at 600, 499 S.E.2d at 269. We agreed, noting that

though subsection A of that statute provided for individual

liability, subsection B did not.

In contrast to subsection (A), Code § 6.1-308(B),
provides that only the "lender shall not collect,
receive, or retain any principal, interest, or
charges whatsoever, and any amount paid on
account of principal or interest on any such loan
shall be recoverable by the person by or for whom
payment was made." (Emphasis added). Absent from
subsection (B) is the broad category of entities
found in subsection (A). In other words,
subsection (B) does not include any individual,
officer, director, or entity other than the
lender.

Id. 255 Va. at 601, 499 S.E.2d at 270. We noted that

reading the sections of the statutory provision

28
independently was in accordance with the intent of the

General Assembly.

When the General Assembly uses two different
terms in the same act, it is presumed to mean two
different things. As evident in subsection (A),
the General Assembly knew how to broaden the
range of liability, and the absence of any such
provisions in subsection (B) indicates the
General Assembly's intent to limit those from
whom borrowers may obtain restitution. To
determine otherwise would be to rewrite the
statute and to contradict the General Assembly's
express intent.

Id. 255 Va. at 601-02, 499 S.E.2d at 270 (citation and

internal quotation marks omitted); see also Level 3

Commcn's of Va., Inc. v. State Corp. Comm'n, 268 Va. 471,

476-78, 604 S.E.2d 71, 73-74 (2004) (reading subsections of

Code § 56-265.4:4 independently in accordance with the

plain language of the statute).

In Halifax Corp. v. First Union Nat'l Bank, 262 Va.

91, 100, 546 S.E.2d 696, 702 (2001), we noted that the duty

imposed upon a customer to exercise reasonable promptness

to examine a bank statement to determine whether any

payment was unauthorized under Code § 8.4-406(c), existed

whether or not the bank had paid those items in good faith.

We declined to adopt the appellant's argument that the

requirement that a bank pay an item in good faith in order

to assert a statutory bar against a customer claim under

Code § 8.4-406(d) and (e), should be read into the

29
customer's duty to examine his bank statement under Code

§ 8.4-406(c). Id. at 101, 546 S.E.2d at 702-03. This

Court specifically noted that "when the General Assembly

includes specific language in one section of a statute, but

omits that language from another section of the statute, we

must presume that the exclusion of the language was

intentional." Id. at 100, 546 S.E.2d at 702.

To accurately represent the majority's interpretation

of subsection B of Code § 8.01-581.18, the General Assembly

would have written it 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 [such] laboratory
test [under Subsection A] or other examination of
the physical or mental condition of any person,
which test or examination such physician neither
requested nor authorized in writing . . . .

(Emphasis added.) The General Assembly, however, did not

include any such limitation. Clearly, the General Assembly

knew how to reference such non-physician ordered laboratory

tests as it did so specifically five times in subsection A:

[A]ny report of the results of such test . . .
shall be provided by the person conducting such
test . . .to the . . . subject of such test
. . . . Such report shall state in bold type
that it is the responsibility of the recipient to
arrange with his physician for consultation and
interpretation of the results of such test or
examination.

30
Code § 8.01-581.18(A) (emphasis added). Had the General

Assembly wished to limit the scope of subsection B immunity

to "such" non-physician ordered tests of subsection A, it

could have done so, but it did not.

The General Assembly unquestionably knows how to

connect the various provisions of a statute when it desires

to make them interdependent. The fact that the Legislature

did not choose to do so in Code § 8.01-581.18 "represents

an unambiguous manifestation of a contrary intention."

Halifax Corp. v. Wachovia Bank, 268 Va. 641, 654, 604

S.E.2d 403, 408; see also Couplin v. Payne, 270 Va. 129,

135-36, 613 S.E.2d 592, 594-95 (2005). For example, Code

§ 2.2-514(A) empowers the Attorney General to "compromise

and settle disputes . . . involving all interests of the

Commonwealth . . . ." Subsection B of that statute

provides that "[n]o settlement under subsection A shall be

made subject to a confidentiality agreement that prohibits

the Commonwealth . . .from disclosing the amount of such

settlement." Code § 2.2-514(B) (emphasis added).

Finally, the majority contends that "grant[ing] Dr.

Oraee immunity under Code § 8.01-581.18(B) would lead to

consequences the General Assembly could not have intended."

What the majority does not recognize is that the

elimination of unintended consequences is a matter for

31
legislative, not judicial, remedy. We have repeatedly held

that

we determine the General Assembly's intent from
the words contained in the statute. When the
language of a statute is unambiguous, courts are
bound by the plain meaning of that language and
may not assign a construction that amounts to
holding that the General Assembly did not mean
what it actually has stated.

Williams v. Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468,

470 (2003) (citations omitted). As we noted in Auer,

"Whether a statute is wise is . . . a matter for the

legislature and not for a court." 270 Va. at 177, 613

S.E.2d at 423 (citing Horner v. Dept. of Mental Health, 268

Va. 187, 193, 597 S.E.2d 202, 205 (2004)).

For these reasons, I believe the construction of Code

§ 8.01-581.18(B) set forth in Auer was correct and that

stare decisis dictates that our decision be followed. The

majority's new construction of the statute does not comport

with its plain meaning and adds language to the statute not

written by the General Assembly. If the General Assembly

chooses to amend the statute it may do so, but we cannot.

Therefore, I respectfully dissent from the majority

opinion, and would reverse the judgment of the trial court

and enter final judgment for Dr. Oraee.

32