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Schwartz v. Brownlee2/28/1997
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge
In this medical malpractice case, William Brownlee (Brownlee) was diagnosed as suffering from prostate cancer, and David T. Schwartz, M.D. (Dr. Schwartz), removed Brownlee's prostate gland in an operation which resulted in the successful excision of the cancer. Following this type of surgery, a patient normally suffers temporarily from incontinence, but Brownlee encountered serious difficulties during his post-operative treatment by Dr. Schwartz and became totally incontinent.
In an amended motion for judgment filed below, Brownlee sought damages from Dr. Schwartz, a licensed health care provider, and his wholly owned corporation, Metropolitan Medical Care, Inc. (MMC), a non-health care provider (the defendants). Brownlee alleged that he had sustained injuries as a result of Dr. Schwartz's post-operative negligence while acting as the agent of MMC.
In a trial before a jury, the trial court ruled as a matter of law that Dr. Schwartz was the agent of MMC "during the relevant times" and instructed the jury accordingly. The jury returned a verdict in favor of Brownlee against Dr. Schwartz and MMC jointly and severally in the sum of $1,850,000.
The trial court ordered a remittitur of the verdict against Dr. Schwartz to $1 million, the medical malpractice cap established by Code ยง 8.01-581.15. However, the court refused to order a remittitur in favor of MMC and entered judgment against it in the full amount of the verdict.
The defendants filed a petition for appeal, which this Court refused. Later, this Court granted the defendants' petition for rehearing and awarded them this appeal.
In their petition for appeal, the defendants assigned three errors, the first alleging that Brownlee had "failed to prove a proximate cause relationship between the negligence alleged and his injury to a reasonable degree of medical certainty or probability." The gist of the defendants' argument on this point is that Brownlee's counsel failed to incorporate the phrase "reasonable degree of medical certainty" or "reasonable degree of medical probability" into the questions posed to Brownlee's expert witnesses.
However, in their petition for rehearing, the defendants made no mention of their first assignment of error or of any deficiency in the proof of causation, relying solely on the two remaining assignments of error in requesting that "this Court grant the Petition for Rehearing and grant a writ in this case." In our opinion, the failure to include the first assignment of error in the petition for rehearing constitutes an abandonment of that assignment of error. We will consider, therefore, only the two remaining assignments of error. They are as follows:
"2. The trial court erred when it denied defendant MMC's Motion to Dismiss as to it as a matter of law and instead directed a verdict for the plaintiff on the issue of whether Dr. Schwartz's performance of medical services was as an agent of MMC."
"3. The trial court erred when it allowed a judgment in excess of the Virginia Medical Malpractice Cap to stand as to MMC, Dr. Schwartz's wholly owned corporation."
"a. MMC's liability, which was predicated wholly on a theory of respondeat superior[,] cannot be greater than that of Dr. Schwartz, MMC's alleged agent."
"b. Plaintiff is limited to the malpractice cap for damages arising from a single indivisible injury, even when there are multiple defendants jointly and severally liable for same, where at least one of the defendants is a "health care provider" as defined in the Virginia Code."
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