ANALYSIS OF FEBRUARY 2, 2017 SUPREME COURT OPINIONS
(Posted February 2, 2017) The justices get back to business today, issuing two new published opinions. Each is very significant in its field.
Torts
What happens when a doctor performs surgery, but ends up operating on the wrong body part? Obviously, a plaintiff can sue for medical malpractice, a claim sounding in negligence. But many plaintiffs add a battery claim, asserting that the patient never consented to have surgery performed on the “wrong” body part. That’s the setup for today’s ruling in Mayr v. Osborne.
The patient went to a surgeon complaining of back pain. The doctor recommended a fusion of the fifth and sixth vertebrae of the patient’s cervical spine. The patient agreed, but the doctor mistakenly operated on the sixth and seventh vertebrae instead. That required a second surgery.
The patient sued the doctor for negligence and battery, but nonsuited the med-mal claim, leaving the battery claim to be tried by a judge, sitting without a jury. During trial, the doctor objected to the battery claim, asserting that a claim like this had to arise in medical negligence. The judge took those motions under advisement; he never formally ruled on them, but he eventually granted judgment in favor of the patient.
Time for an appellate-practice digression: Is that “election” issue preserved for appeal, since the court never expressly ruled on it? The justices decide that it is indeed preserved, because “the trial court’s award of damages to the plaintiff following two motions to strike necessarily constituted an implicit denial of the motions to strike.”
I understand this ruling, and in a sense I’m glad the court ruled that the issue wasn’t foreclosed. Procedural default is a cancer on our practices. But as your appellate guidance counselor, I advise you not to try this at home; the rulings on preservation in situations like this are perilously non-uniform. Get a specific ruling. Ask the judge for it – politely, of course – even if you have to ask more than once.
Back to our primary tale. Justice McCullough writes the opinion of the court, and he begins by noting that the legal issue here – whether a negligently performed surgery can give rise to liability for battery – is a matter of first impression. There’s caselaw that establishes that wholly unauthorized surgeries are indeed batteries; in this case the doctor had permission to perform surgery, but just made a mistake in doing it.
The court reasons that battery is a specific-intent tort. You can’t negligently commit battery, even in a non-surgery context. In addition, the purposes of battery law and negligence law differ.
That’s all true in a legal context, of course; but the practical difference between the two causes of action in the medical context is a monetary one. In a med-mal case, you almost always have to have a standard-of-care expert witness to make out a prima facie case. In claims involving relatively small sums of money, it can be wholly uneconomical for a plaintiff to hire a doctor to testify as to the standard of care. That’s what leads some plaintiffs to go the battery route; med-mal statutes and rules don’t govern battery claims.
In this sense, today’s reversal and final judgment, a complete win for the doctor, deals a significant blow to injured parties and gladdens the hearts of the medical profession (and their lawyers). The court finds that claims like this sound in negligence, not battery, so the plaintiff must go the med-mal route.
The justices also reject the patient’s theory based on informed consent. The court rules that in order to establish a battery claim in this realm, the plaintiff must prove enough “to permit an inference that the physician intended to disregard the patient’s consent regarding the procedure or the scope of the procedure.”
Good luck proving that. As far as I can tell, this ruling effectively ends battery claims as a means of recovery for all but a very limited subset of medical claims.
I’ve tried to envision the limits to this doctrine. Suppose I have a diseased kidney, and a surgeon recommends taking it out. I agree, but instead of removing Bad Kidney, he removes Good Kidney, leaving me permanently dependent on dialysis for as long as I continue to live. The doctor tells me “I meant to remove Bad Kidney; it was just a mistake on my part.”
I would assume that I wouldn’t need an expert to make out a prima facie case that my doctor committed a battery by removing the wrong kidney; but in the med-mal context I really do have to go to that expense. In this regard, one bit of trial testimony from Dr. Mayr’s expert is particularly significant: the doctor adduced evidence that “operating at the wrong level is ‘a recognized complication’ of this type of surgery.” Think about the implications of that testimony, and imagine how broadly it might spread.
Today’s opinion concludes with a note of consolation for the patient: “This does not leave a plaintiff without a remedy.” That is, he can sue for medical malpractice, taking on the expenses appurtenant to a claim like that.
Criminal law
We’ve seen Jones v. Commonwealth before. On Halloween in 2014, the justices affirmed the life sentence imposed upon Jones for capital murder. He had been sentenced more than a decade earlier, but sought relief after SCOTUS handed down Miller v. Alabama in 2012. That decision held that a state could not subject a juvenile (at the time of the offense) to mandatory life in prison without possibility of parole.
In 2014, the SCV examined Miller and decided that it didn’t apply, since Virginia doesn’t have a mandatory life sentence for capital murder. What’s that you say? The only statutory choices are death or life without parole? Ah, but you’re forgetting that a judge can suspend part or even all of a life sentence. That means that it’s not truly mandatory.
Jones filed an oh-yes-it-is petition for certiorari in Washington. Last year, with Jones’s petition pending, SCOTUS addressed this topic again in Montgomery v. Louisiana, expressly to decide whether the Miller doctrine was retroactive. This matters a lot, because if it is indeed retroactive, a whole slew of appellants with dusty convictions will be entitled to relief.
The opinion in Montgomery held that the Miller ruling was indeed retroactive. This is looking good for Jones. It looked even better when his case was among a host of others on a GVR list – where SCOTUS granted cert, vacated the sentence, and remanded for reconsideration in light of the new decision.
Today, a sharply divided Supreme Court of Virginia again rules that the Miller doctrine – even as explicated in Montgomery – still doesn’t apply, primarily for the same reason as the last SCV decision, back in 2014. The majority holds that whether Miller is retroactive or not, Virginia still doesn’t have a mandatory life sentence for juvenile defendants, or anyone else, for that matter.
Today’s opinions – Justice Kelsey’s for the court and Justice Powell’s dissent on behalf of Justices Goodwyn and Mims – are long, running fully 47 pages. The constitutional law issues are deep and complex. If you’ve got a couple of hours, we can go over it fully. For the rest of you who have to find a billable use for your time, here are just the highlights, plus a couple of observations.
While there are several components to both the majority and dissenting opinions, the primary legal issue, as I see it, is whether Jones’s sentencing order was void or voidable. If it’s merely voidable, I think the entire court would find it time-barred; Jones was sentenced in (probably) 2001, and it’s too late for a direct appeal or a habeas petition. Only if the sentence was void ab initio may Jones use the procedural vehicle he chose: a motion to vacate his sentence.
Motions to vacate typically arise when a court has entered a void ab initio judgment for things like the absence of subject-matter jurisdiction. That’s even true in civil cases: we have a statute (Code §8.01-428) that allows a party to file an independent action at any time for relief from a judgment.
If you saw the recent motion picture Loving, telling the story of Loving v. Virginia, you’ll recognize the concept. The Lovings pleaded guilty, just as Jones did here, but years later sought to vacate the conviction, asserting that the judgment was void as unconstitutional. They didn’t appeal and they didn’t file habeas petitions. How could they do that years later? By claiming, in essence, that their convictions even based on guilty pleas, were hopelessly unconstitutional. You know how that came out.
Loving v. Virginia even makes an appearance here, as Justice Powell uses it as an example of how a petitioner can assail a years-old conviction. Justice Kelsey points out in response that neither the SCV nor SCOTUS, in considering the case on the merits, ever actually touched on the issue of whether a motion to vacate was an appropriate procedural vehicle. He therefore regards it as an unadjudicated issue, and issues that the court doesn’t actually decide cannot be afforded the benefit of stare decisis.
We all know that courts will raise jurisdictional issues sua sponte, so you may well presume that both courts in the 1960s found no jurisdictional barrier to considering the issue. Bringing the issues forward to the present, it does occur to me that if this is a prohibited procedure, there will be no vitality to the Montgomery ruling that Miller is retroactive. How would a prisoner like Jones ever enforce his right to relief, assuming he was entitled to it?
There are a few bon mots here – hey, Justice Kelsey is writing; what do you expect? – such as where the majority addresses the fact that in 2001, Jones never asked for an evidentiary hearing such as the one he now seeks, and indeed stipulated in his plea agreement that life without parole was the proper sentence for his crime. “That is of no concern, Jones claims, because his sentence was void ab initio — a doctrinal ‘royal flush’ that outranks any lesser hands of procedural default, estoppel, or even judicial stipulations.”
I always like a good poker analogy, but this one, concluding the discussion of this legal issue, trumps it:
But even if, as Jones’s logic implies, the trial court — over a decade ago — had a constitutional duty to force Jones to violate his plea agreement by requesting a partial or complete suspension of his stipulated sentence and then, whether requested or not, to order Jones to present mitigation evidence in support of an unrequested suspension, we would not hold that such a violation renders his sentence void ab initio. Nothing in Virginia or federal law compels us to do so, and we can think of no good reason why we should.
(You’ll note that by using the phrase trumps it, I’ve introduced bridge and presidential politics to the table. Always looking out for the punsters among my audience.)
This case is the latest in a long string to address the perplexing boundary between void and voidable rulings. The boundary is by no means clear, no matter how many judicial opinions explore it. I’d like to say that this opinion brings clarity to a murky picture; but I can’t really conclude that. If you’re looking for a crystal-clear, bright-line rule on the division, you’re going to go hungry for quite a while.
On the substance of it, I’m inclined to agree with the majority that Montgomery goes no further than what Justice Powell describes (albeit before disagreeing): “the majority insists that the precedential holding in Montgomery amounts simply to: Miller is retroactive.” On that basis, I’d tend to agree that our capital-murder sentencing system does allow a trial court to consider the defendant’s youth and related factors. I also believe that Jones’s sentence, one where he pleaded guilty and agreed to a specific term of imprisonment – even if it is life without parole – was subject to waiver, just like the constitutional right to a jury trial.
But in doing so, I’d hate to lose the avenue for delayed review that helped Richard and Mildred Loving obtain eventual justice. The Lovings pleaded guilty before later asserting that their conviction was impermissible. There’s a low-level distinction, of course; the Lovings convinced SCOTUS in 1967 that the conduct they were punished for could not legally be prohibited. I’m not sure if that’s the ultimate answer; but I suspect we’ll see further review of these issues under the caption Jones v. Virginia in the near future.
One last point. Justice Kelsey inserts a passage into the majority that’s designed to inoculate this ruling from SCOTUS review. The issue in the case is whether or not Virginia’s criminal statutes call for a mandatory minimum sentence. The court today rules that it does not. The majority cites caselaw from SCOTUS holding that on the interpretation of state law – including whether our law imposes a mandatory minimum – state courts get the last word and the federal courts won’t second-guess them. We’ll likely see if that deference endures.
