P.I. plaintiffs appeal reduced awards
By Deborah Elkins, Virginia Lawyers Weekly – 9/12/2013
Personal injury plaintiffs who saw two of Virginia’s largest jury awards of 2012 reduced or struck by trial judges took their cases to the Supreme Court of Virginia this week.
On Sept. 11, the justices heard back-to-back appeals involving a $7 million award in a birth injury case and a $3 million defamation award to a school administrator.
A child who suffered pre-birth injury was not a patient of the doctor who performed prenatal testing on the mother and the doctor should not be protected by Virginia’s cap on medical malpractice damages, Virginia Beach lawyer L. Steven Emmert argued in Simpson v. Roberts.
Marsha Simpson developed gestational diabetes in 2001, 33 weeks into her second pregnancy. She was referred to Blacksburg obstetrician Dr. David J. Roberts. The plaintiffs sued Roberts and his partner, Dr. J. Bradley Terry, alleging failure to fully advise the mother about the risks of an amniocentesis test, performed to assess the baby’s lung development, and negligence in performing the test. They also claimed the defendants should have realized the need for an immediate delivery by Caesarean section. Simpson’s daughter Marissa suffered brain injury from lack of oxygen. The child has cerebral palsy and has undergone two kidney transplants.
In May 2012, a Roanoke City jury awarded $7 million to the daughter and $2 million to the mother. The trial judge applied the cap to reduce the award to $3.2 million, with $1.6 million each going to the mother and the daughter. The child’s medical expenses already have exceeded her reduced award, her lawyers reported.
The cap should not apply to the daughter, who was not Dr. Roberts’ patient at the time of the pre-birth testing, Emmert argued. The plaintiffs contend Virginia’s Medical Malpractice Act applies only where health care is delivered to a patient, defined under the Act as a “natural person.” In Virginia, the plaintiffs reasoned, fetuses are not “persons” and so the cap does not control.
Defending application of the cap, Roanoke lawyer Frank K. Friedman argued the plaintiffs’ analysis could wreak havoc in assessing potential malpractice liability during labor and delivery. An enormous number of healthcare providers would not be covered by the cap, if a hospital shift changes and those who leave five minutes before delivery do not count as having provided care to the infant as a “patient,” he said.
Questions from the justices focused on whether the amniocentesis served only as a diagnostic tool meant to provide information for the mother in deciding to proceed with an early delivery, or whether the prenatal testing also counted as “treatment” with consequences for the unborn child.
The high court also heard Webb v. Virginian Pilot Media Companies LLC, an appeal by an assistant principal at a Chesapeake high school. Phillip Webb claimed he was defamed by a December 2009 article in The Virginian-Pilot about Webb and his son, a student in the same school system. Webb alleged the newspaper falsely implied that he had improperly used his position to obtain more lenient discipline for the son.
Judge Randall D. Smith’s opinion setting aside the jury’s $3 million award said Virginia law recognizes defamation by implication, but the Virginia Supreme Court has not determined that a defamation defendant must intend the implication.
The trial judge said Webb was a “public official” who had to prove the newspaper published the alleged defamatory account with actual malice – knowledge the account was false or reckless disregard as to whether it was false. The judge said Webb did not meet that standard and the verdict could not stand.
Virginia Beach lawyer Jeremiah Denton III, who represented Webb, told the justices that courts around the country are split on whether school principals are public officials, and there are no Virginia court rulings. Even fewer cases consider whether assistant principals may qualify as public officials. The paper’s statement about any role played by Webb in the disciplinary matter may have sounded innocuous, but it actually implied that Webb had intervened on behalf of his son, according to Denton.
Justice William C. Mims asked if there was another level of inquiry, involving whether an editor should have analyzed the words used by the reporter to contain an implication to damage the plaintiff’s reputation. Denton said the damage to the plaintiff was “self-evident.”
Norfolk lawyer Conrad Shumadine, appearing for the Pilot, said the “newspaper printed every fact it could learn” about the student disciplinary matter, and quoted “accurately and completely” the response offered by the school system’s spokesperson.
According to Shumadine, the reporter’s story followed up on allegations that, although Webb’s son initially had been charged with malicious wounding, he had suffered no disciplinary consequences at his school. The reporter did not have the power to issue a subpoena to obtain more information from the school system, but printed the response the school did offer, the paper argued.
Decisions in these and other cases argued during the court’s September session are expected when the court meets again in late October.