(Posted February 22, 2018) For the first time in 2018, the Supreme Court of Virginia hands down published opinions this morning. We get seven rulings, including three in the field of medical malpractice.

Before we move to the analysis, I’ll mention that this is an important week at Ninth and Franklin, as two justices celebrate birthdays this week; one today and one tomorrow. To protect their privacy, I’ll let you figure out which ones they are. Today’s celebrant shares a birthday with a highly esteemed member of the medical profession, and also with this guy. I offer happy birthday wishes to both justices, as well as to the Doctor.


Medical malpractice

The court considers the sufficiency of causation evidence in Dixon v. Sublett, involving complications from a laparoscopic hysterectomy. For those not of a medical bent, a laparoscopy involves a small incision into the torso, with tiny surgical instruments inserted through that opening. It’s comparable to arthroscopic knee surgery, if you’re familiar with that. It’s much less invasive than general surgery, in which a surgeon opens up the torso to perform the operation.

The day after undergoing the procedure, the patient experienced symptoms including significant pain and shortness of breath. When those symptoms remained on the second morning after surgery, the doctor ordered a CT scan; a subsequent surgery revealed and repaired a small perforation in the patient’s bowel.

The patient sued and called a medical expert to testify about the standard of care. He opined that the defendant doctor breached that standard by not examining the bowel carefully enough before ending the surgery, and by not calling in a general surgeon immediately. When the patient tried to have the same expert testify about what a general surgeon would do, the doctor objected that the patient hadn’t designated an opinion like that. The court sustained that objection.

The patient didn’t offer any other evidence on causation. The doctor moved to strike, but the judge let the case go to the jury. The patient got a verdict for $652,000. The doctor appealed and got a writ.

The Supreme Court reverses today and enters final judgment for the doctor. The justices note that there was no evidence in the record to show what a general surgeon would have done, or that the outcome would have been different if the defendant had called one in to operate immediately. That means that the trial court should have granted the motion to strike.

An expert is also at the heart of Holt v. Chalmeta, which involves a claim of neonatal malpractice in a Fauquier County hospital. The baby was born with a condition called nasal stenosis, which obstructed breathing through the nose.

When nurses saw a breathing problem a few minutes after birth, they summoned the eon-call pediatrician. That doctor tried to insert a catheter into the baby’s nostrils to permit airflow, but wasn’t able to do so; she ordered placement of something called an oxyhood, which surrounds the baby with moist oxygen to assist breathing. Seven hours after birth, the doctor decided to transfer the baby to the pediatric ICU at the University of Virginia, about 65 miles away. She did manage to insert the catheter, but by the time the baby reached U.Va., she had sustained brain damage due to an oxygen deficit.

The baby’s mother sued and offered a single expert witness to establish both breach of the standard of care and causation. The expert was a neonatologist, a pediatrician with special training in caring for babies. At trial, the defendant doctor objected that the expert didn’t have an active clinical practice in the field and didn’t have the required knowledge to qualify as an expert in the defendant’s field.

The trial court agreed and excluded the doctor, triggering summary judgment for the defense. The Supreme Court disagrees today, reversing and sending the case back for trial. The justices find that the expert was licensed in Virginia and in practice here in the field of pediatrics. She was thus entitled to the statutory presumption that she knew the standard of care. The court finds today that the defense didn’t rebut that presumption.

The Supreme Court notes that here, “the relevant medical procedures concern assessment of the severity of a newborn infant’s respiratory distress resulting from nasal stenosis and responding appropriately.” The expert’s practice included that kind of assessment, so she should have been allowed to testify.

I’ll add a word about the standard of review. The analysis section of the opinion begins with the recognition that normally the Supreme Court reviews the exclusion of evidence for abuse of discretion. That normal situation is subject to an important exception, applicable here:

However, in an action alleging medical malpractice, we will overturn a trial court’s exclusion of a proffered expert opinion “when it appears clearly that the witness was qualified.”

Since the justices find this expert to have been qualified, the case returns to Warrenton for a new trial.


Name-change petitions

When an ordinary Tom, Dick, or Harry wants to change his name to something more charismatic – say, Steven – the law makes it relatively easy. “[U]nless the evidence shows that the change of name is sought for a fraudulent purpose or would otherwise infringe upon the rights of others,” a court is required to grant the request.

Not so with inmates, probationers, and similar persons. For those folks, a court must find that “the change of name (i) would not frustrate a legitimate law-enforcement purpose, (ii) is not sought for a fraudulent purpose, and (iii) would not otherwise infringe upon the rights of others.” Assuming the applicant meets those requirements, the court has the discretion but not the duty to grant the petition.

That difference makes all the difference in Jordan v. Commonwealth. Jordan received a lengthy prison sentence for very serious crimes including aggravated malicious wounding and first-degree murder. His petition states that he found Islam while in prison, and he desired to change his name to reflect that conversion. The trial court found that the petition wasn’t for a fraudulent purpose, but it denied the petition anyway because of the severity of the crimes. The court’s discussion concluded, “A function of his punishment is that he bear the convictions in the name they were ordered by the court, and that his victims and society have that assurance.”

That ends up being good enough for the justices. Citing the trial court’s “broad discretion to grant or deny the petition,” the Supreme Court unanimously rules that the trial court “could conclude that a person who would commit crimes of that gravity and brutality must retain his given name, for the peace of mind of the victims and the victims’ families and to avoid any possible future confusion about his identity.” Jordan will be at least eligible to return to society when he reaches the age of 65, and society deserves to know who he is.

Jordan had stipulated that a denial of his name change wouldn’t hinder his exercise of his new religion. Today’s opinion doesn’t say that the result here would be different if he did make such a claim. Reading between the lines here, I sense that the court may have been relieved that it didn’t have to resolve an issue like that.


Administrative law

The Supreme Court takes up an employee grievance in Osburn v. Dep’t of ABC. Osburn was an ABC special agent who went with a colleague to inspect the premises of a restaurant that had applied for a retain alcohol license.

When they arrived, Osburn and his colleague split up; the colleague interviewed the applicant, while Osburn went back to the kitchen to see if it was fully stocked – a legitimate licensing requirement. But after checking the kitchen, he decided to keep snooping around:

After inspecting the kitchen, Osburn walked through an open door into a business office in the back of the Bistro. Once inside, Osburn searched the office. He opened desk drawers and a filing cabinet, and photographed various documents uncovered in the process. One of those documents indicated that [another person] was the owner of the Bistro. Osburn did not ask for permission to enter the office, and he did not encounter anyone while conducting his search.

ABC denied the application, perhaps because of what Osburn had found. (It’s grounds for refusal to make a false statement on an application, including falsely identifying the true applicant.) The applicant howled in protest, claiming that Osburn had violated her Fourth Amendment rights. Osburn felt that he had done nothing wrong, since a statute [scroll down to paragraph F] provides that ABC agents shall be allowed free access to various places within the Commonwealth.

ABC conducted an internal investigation and figured out what had happened. It fired Osburn for acting contrary to ABC policy. Osburn appealed through a grievance process but never found succor. Even the Court of Appeals ruled against him, holding that the free-access statute requires applicants to grant the access, but doesn’t allow the agent to seize it without notice.

The justices today affirm on a different ground. They conclude that the free-access statute applies only to licensee and doesn’t apply to applicants who don’t already have a license. Here, judge for yourself:

[ABC] and its special agents shall be allowed free access during reasonable hours to every place in the Commonwealth and to the premises of both (i) every wine shipper licensee and beer shipper licensee and (ii) every delivery permittee wherever located where alcoholic beverages are manufactured, bottled, stored, offered for sale or sold, for the purpose of examining and inspecting such place and all records, invoices and accounts therein.

Sure enough, only licensees and permittees are required to give free access to agents. Since Osburn had essentially blown off the applicant’s Fourth Amendment rights, the folks at ABC acted within their legitimate discretion in firing him.



Appellate lawyers will want to read Kellogg v. Green very carefully. The primary issue is whether res judicata bars a collection action where the trial court has already decided the merits of that claim in a show-cause proceeding. (If this sounds hauntingly familiar to you, you’re recalling Lee v. Spoden, 290 Va. 235 (2015), which resolved a similar issue.)

Kellogg and Green are former spouses; a circuit court unhitched them in a divorce proceeding after 16 years of bliss. The final decree incorporated by reference a prenuptial agreement from 1998 and an amendment to that agreement, signed in 2004. Those terms required the now ex-husband to pay the now ex-wife $5,000 for each year of their marriage. The math comes up to just shy of $83K.

The wife later filed a motion to amend the divorce decree to correct a typographical error; the amendment agreement was actually signed in 2003, not 2004. She included a petition for a rule to show cause, claiming that the husband hadn’t paid what he owed.

The circuit court considered the matter and entered an order correcting the typo. It provided, in language that’s familiar in these contexts, “this cause shall remain on the docket of [the circuit court] for the purposes of enforcing the terms of the Agreements.” Two weeks later, it entered a second order that, in the language of today’s SCV opinion, “memorialized the granting of the motion to amend the Final Decree and denied and dismissed the Show Cause Petition.” The court found that while the husband owed the money, it hadn’t specified the date when that money was due, so the husband wasn’t in contempt.

The wife figured she had another approach: She sued her ex for breach of contract. That looks plausible when you consider that the divorce decree stated that the agreements were enforceable “either under contract law or through the contempt powers” of the circuit court.

But the husband knew about Lee v. Spoden and filed a plea of res judicata. The circumstances of the two cases seemed indistinguishable to the trial judge, who dismissed the contract action. The wife argued in vain that the earlier proceedings weren’t final yet, because the court had retained the case on the docket to enforce the agreements.

Today, the Supreme Court reverses, agreeing that the previous ruling in the contempt proceeding wasn’t final. Since only final orders can serve as the basis for a plea of res judicata, the justices find that the trial court erroneously dismissed the contract claim. Today’s opinion remands the case to the circuit court for evaluation of that claim.

I will confess to being surprised at this ruling, for two reasons. First, the previous matter sure looks final to me, under the test for finality that the court quotes in this opinion:

A decree is final only when it disposes of the whole subject, gives all the relief that is contemplated and leaves nothing to be done by the court in the cause except its ministerial execution.

This quote is from a 1960 case, and the court has reaffirmed the holding often. In 2011, for example, it held the same thing, ending the passage with, “leaves nothing to be done in the cause save to superintend ministerially the execution of the order.”

Let’s go back to the language of the correction order in the divorce action: “this cause shall remain on the docket of [the circuit court] for the purposes of enforcing the terms of the Agreements.” I cannot explain to you why this language is not fully equal to “to superintend ministerially the execution of the order.” The subsequent order reaffirming the correction and dismissing the show-cause wasn’t filed in an independent action. It was entered within 21 days, so it was timely; but it didn’t create an open-ended, non-final order.

The second thing that troubles me is that this opinion seems to conflict with previous SCV caselaw on retention of jurisdiction. At pages 5-6, the slip opinion recites accurately the law on this point: a trial court can postpone finality by expressly retaining jurisdiction over a case.

But this judge didn’t do that: the order merely says that the case “shall remain on the docket.” That is the exact phrase that the court found wanting in City of Suffolk v. Lummis Gin, 278 Va. 270, 277 (2009). There, a judge used this very phrase, and the Supreme Court ruled that that wasn’t good enough; the trial court lost jurisdiction 21 days later because the order hadn’t retained jurisdiction.

There may be a factor elsewhere in the caselaw, or a circumstance in the record but not in this opinion, that justifies this ruling. If not, the Supreme Court has just embarked on a sea change in finality jurisprudence. In good conscience, I cannot recommend that future litigants try to establish continuing trial-court jurisdiction by using the phrase “remain on the docket” without adding “retain jurisdiction.” But today’s opinion, blessing that very approach, means there may be daylight out there for litigants who don’t follow my advice.


Res judicata and estoppel

We get a very helpful explanation of the boundaries between claim preclusion and issue preclusion, plus a discussion of judicial estoppel, in D’Ambrosio v. Wolf. This is litigation between a brother and his two sisters over Mom’s estate.

Mom had a stroke in 2012. The next year, she signed a durable power of attorney in favor of her son, whom we’ll call Brother. Early in 2014, she executed a will that divided her estate between Brother and the Sisters. Litigation ensued between the siblings, despite the fact that Mom still drew breath.

In the action, both sides sought relief against the other, claiming that this document was valid or that one wasn’t. The litigation ultimately ended in a consent order that appointed a neutral guardian/conservator and dismissed Brother’s claims.

The next year Mom died, and the Sisters got the 2014 will admitted to probate. Brother sued, claiming that Sisters had exerted undue influence on Mom to procure this will, and asserting that Mom lacked testamentary capacity. The Sisters filed a plea in bar, asserting claim preclusion, issue preclusion, and judicial estoppel. The trial court agreed with Sisters on all three rounds, and dismissed the suit. Brother, undeterred, got a writ.

Writing for a unanimous court – indeed, all seven of today’s opinions are 7-0 rulings – Justice Mims crafts a reversal opinion that you’ll probably agree is a very useful primer on the difference between claim preclusion and issue preclusion, plus a helpful explanation of one aspect of judicial estoppel.

Claim preclusion is now governed in Virginia by Rule 1:6. If you can raise a given claim in an action, but choose not to do so, you’re generally barred from asserting that claim in subsequent litigation. This prevents the practice of “claim-splitting,” whereby a plaintiff can subject a defendant to the annoyance of multiple lawsuits. The Sisters had asserted that Brother’s suit raised claims that could have been brought during the first suit – specifically, he could have sued earlier to impeach the will due to his power of attorney.

That doesn’t work, because a will “speaks” at death. No heir has a right to claim anything while the testator is still alive, because the testator can always change her mind and make a new will. Even so, the Sisters argue that Brother could have filed a declaratory-judgment action, since those don’t have to await the accrual of a claim. Unfortunately for the Sisters, prior caselaw bars this approach. Because Brother couldn’t have sought to impeach the will while Mom was alive, he cannot be barred by claim preclusion.

Justice Mims takes up issue preclusion next, and quickly explains one key difference between the two matters. Issue preclusion only applies to issues that have actually been litigated in the first suit. In other words, Rule 1:6 doesn’t govern here to bar issues that might have been included in the previous suit. Since the question of Mom’s capacity at the time she signed the will wasn’t actually decided in the first suit, that doesn’t help Sisters, and the trial court erroneously based its judgment on that doctrine.

Finally, the court takes up judicial estoppel. In the first action, Brother had asserted that Mom had capacity in 2013 when she gave him power of attorney, and again three months after the date of the will. They claimed that he could not, in the second suit, claim that she was incapacitated in between those dates.

Ah, but he can; the only date that matters for determining testamentary capacity is the date of execution. Earlier and later dates are irrelevant. The trial court thus erred in dismissing the suit on this ground. Justice Mims goes on to note that the judge in the first suit didn’t rely on Brother’s assertion about capacity in deciding the case. That’s a separate reason why judicial estoppel doesn’t bar Brother’s claim.

The court remands the case for further proceedings on Brother’s suit to impeach the will. As I’ve noted here, this is a highly instructive explanation of these concepts, and lawyers litigating cases even far removed from the probate arena should read it carefully.



There’s one more med-mal decision today: Martin v. Lahti implicates evidentiary issues and a familiar procedural problem on appeal.

A patient came to a hospital’s emergency room in Danville and was diagnosed with acute pancreatitis. Tests showed that the problem originated in her gallbladder. Her doctor recommended removing it. He met with the patient for over half an hour to discuss the situation. No one else was present.

This case, too, involves a laparoscopy and a claim that the surgeon “nicked a bowel during surgery.” A week after the surgery, the patient died. Her daughter qualified as personal rep and sued, claiming a lack of informed consent. The lawsuit asserted that the doctor had failed to inform the patient about available nonsurgical treatment, and that if he had done so, the patient would have chosen not to undergo surgery.

You’ll immediately appreciate the tremendous evidentiary disadvantage that the personal rep faces: How do you prove that someone else would have chosen Course B over Course A, particularly when the patient is now dead? The personal rep chose to do so with circumstantial evidence: her own testimony and that of her aunt.

At a hearing, the daughter told the trial court that she and her mother discussed medical matters in detail on this and other occasions. The mother had a stated resistance to surgery. The daughter was unable to testify as to what the doctor actually told the patient during that half-hour-plus, but asked the court to infer that the doctor left nonsurgical options out because the mother hadn’t mentioned them to her daughter. She concluded, based on her familiarity with her mother and other similar factors, that if the doctor had told her mother about nonsurgical treatments, the mother would have chosen that course instead of surgery.

The trial court didn’t buy this, and neither do the justices. The Supreme Court acknowledges that lay witnesses can offer opinions, but those are generally restricted to matters within the witness’s own perception. Here the daughter was simply speculating about what her mother would have done, and no witness can do that.

In a footnote, Justice McCullough observes that there is a split of authority over an issue that isn’t directly implicated in this appeal: whether proving causation in an informed-consent case requires a subjective or objective approach. The subjective approach is where a patient testifies, “I would never have consented if I had only known …” The objective approach turns instead to “what a prudent person in the patient’s position would have decided if suitably informed …” This issue remains unaddressed in Virginia jurisprudence for now.

There’s one more issue, but here, some sloppy drafting by an appellate lawyer dooms the appellant. The patient’s sister offered testimony that the patient had stated after the surgery, “I thought this would be an easy operation.” The personal rep contended that this helped to prove that the doctor had misled the patient.

While I find myself a bit skeptical of this contention, the issue dies without a resolution on the merits. The trial court originally ruled in a letter opinion that this statement was inadmissible hearsay and was speculative. After the evidentiary hearing I described above, the court ruled that the statement was irrelevant to the triable issue.

In the Supreme Court, the personal rep assigned error to the trial court’s ruling based on hearsay and speculation. The assignment said nothing about relevance, the ultimate basis for the court’s exclusion of the evidence. Because you must assign error to what the court actually did, the Supreme Court finds this assignment to be waived.