ANALYSIS OF FEBRUARY 13, 2020 SUPREME COURT OPINIONS
(Posted February 13, 2020) The Supreme Court of Virginia hands down two published opinions this morning.
Tahboub v. Thiagarajah is a wrongful-death action filed by the personal representative of an obstetrical patient. The patient had experienced complications in an earlier pregnancy. Her doctor placed a suture in her cervix and left it there after a Caesarean delivery.
When she became pregnant again two years later, the doctor couldn’t find the suture in an ultrasound, so he placed another one there. A week and a half later, the patient called and reported pain and a fever, for which the doctor prescribed ibuprofen and a hypertensive drug. He didn’t direct the patient to come in for an examination.
Four days later, the patient again called and reached another doctor, who was on call for the first one. She told him of continued pain and fever, but he again prescribed only the same two drugs plus acetaminophen. When she called again later that day, he directed her to go to a hospital.
When she arrived, the nursing staff found that she had significant symptoms. A nurse called the first doctor and described the patient’s condition, but he didn’t go to the hospital to meet her and didn’t give the nurse any instructions. The patient’s condition dramatically worsened an hour later. The doctor eventually came to the hospital to find a patient experiencing what today’s opinion calls multiple organ dysfunction.
Doctors immediately performed a C-section delivery, but the strain was too much for the mother; she suffered major bleeding and died five days later. Her personal representative sued the original doctor and the on-call doctor, claiming that a timely examination (instead of telephone conversations) would have revealed the danger and saved the patient’s life.
At trial, the doctors moved to strike the plaintiff’s evidence, claiming that that evidence didn’t establish causation. The trial judge agreed and dismissed the lawsuit.
Today, the Supreme Court unanimously reverses and sends the case back for trial. In deciding a motion to strike, trial courts “must rule based on the presumption that the jury will believe all the evidence that the plaintiff adduced.” Here, plaintiffs’ experts testified that the standard of care required the original doctor to see the patient in-person upon her report, ten days after insertion of the suture, that she experienced pain and a fever. That consultation, they opined, would have saved her life. They also testified that the on-call doctor should have had the patient come in immediately when she reported continued problems four days later. That, too, probably would have saved her.
That’s enough to get to a jury, the court rules today. While defense evidence might impeach the experts, and might convince the jury that the patient’s telephone report was too vague, those issues are for the jury to decide.
The court today takes up a question of first impression: Can felony hit-and-run serve as a predicate offense for felony murder? The case is Flanders v. Commonwealth, and originates right here in Virginia Beach.
In the predawn hours one September day in 2014, a utility crew halted work as a pedestrian passed through the work zone. He likely waved a greeting to them and walked on. A few minutes later, a Dodge Durango SUV approached the work crew abruptly. The driver asked the startled crew to call 911, explaining that it looked like someone had been run over behind a nearby school. She added that the person was bleeding to death, then sped away quickly, leaving the crew and the injured man behind.
A supervisor drove in the direction she had indicated and indeed found a man, the same pedestrian he had seen moments before, lying gravely injured near visible tire tracks. The man said he had been hit. He later identified himself to an ambulance crew when it arrived, but medical treatment was unavailing; he died a few hours later of his injuries.
Police discovered the victim’s personal effects, including a cell phone. They were able to access his call log, and found a short phone call, an hour before the incident, with a woman named Flanders. As it turns out, Ms. Flanders drives a Durango. Investigators spoke with her and learned that she knew the victim; they had been friends for years and had once lived together. But she insisted she had nothing to do with the incident; she said she had last seen him a few days earlier.
In these days of DNA analysis, it isn’t so easy to evade the law; forensic analysis of Flanders’s Durango showed the victim’s blood on the front bumper. A grand jury indicted her for felony hit-and-run and felony murder.
At trial, Flanders moved to dismiss the latter charge, arguing that the hit-and-run charge wasn’t a sufficient foundation. The learned judge didn’t bite, finding Flanders guilty of both charges. In announcing his ruling, he offered a nod to the defense argument, self-deprecatingly forecasting that the defense offered “a very interesting legal conundrum that minds wiser than mine will have to sort out …”
As of today, ten wise minds – three in the Court of Appeals and seven in the Supreme Court – have considered the matter, and all ten have concluded that the humble trial judge correctly solved this conundrum. The Supreme Court analyzes generations of caselaw to conclude, first, that felony hit-and-run can serve as the predicate offense for felony murder, and second, that the evidence here showed that the death was within the res gestae of the hit-and-run. In the latter analysis, the court utilizes the “time, place, and causal connection” test to rule that there was a real nexus between the hit-and-run and the death. The court accordingly affirms the convictions.