Supreme Court Of Virginia Reverses Itself On Medical Malpractice Ruling

VIRGINIA BEACH , VA , November 4, 2005 — Today the Supreme Court of Virginia handed down 20 opinions.  In one of the most stunning developments of the day, the court explicitly reversed a medical malpractice ruling it handed down just five months ago.  In Oraee v. Breeding, the court reconsidered its ruling in June 2005 in the case of Auer v. Miller. 

In Auer, the court held that a physician who is charged with negligence in failing to review, or take action upon, a medical report that that doctor did not request or authorize, is immune from liability. 

Today the court ruled that the immunity only applies where the test was ordered by a non-physician.  In so ruling, the court affirms the trial court’s denial of immunity, and
explicitly declares the earlier ruling to be “a mistake.”

Another case of interest is Alliance to Save the Mattaponi v. State Water Control Board , in which the court ruled that the Mattaponi Indian tribe cannot make claims against the state or the State Water Control Board.  However, the court did not completely close the door, saying the Mattaponi could file suit against the city of Newport News. The case is unique because the court had to interpret a 17thCentury treaty between the Mattaponi Indian tribe and the King of England. 

About L. Steven Emmert

Appellate lawyer L. Steven Emmert of Virginia Beach authors the Web site “Virginia Appellate News & Analysis” at https://www.virginia-appeals.com/ .  He is available to the media as an Expert Resource for comment, analysis, and help wading through the legalese of the rulings at (757) 965-5000.  Emmert is also Chairman of the Appellate Practice Subcommittee for the Virginia State Bar’s Litigation Section.

L. Steven Emmert contact
mailto:emmert@virginia-appelas.com , (757) 965-5000