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Pierce v. Caday9/18/1992
In this action by a patient against her physician for the physician's alleged failure to assure nondisclosure of confidential information, we consider whether the trial court properly dismissed the action at the pleading stage of the proceeding.
Appellant Mary Kay Pierce filed a motion for judgment against appellee Antonio T. Caday, M.D., and one Michael Wade seeking
compensatory damages against both, severally and not jointly. The plaintiff nonsuited the action against Wade after Caday filed a motion alleging misjoinder of parties defendant.
Caday also filed a motion to dismiss asserting that the plaintiff failed to give him written notice of the claim prior to suit, as required by Code ยง 8.01-581.2(A) of the Virginia Medical Malpractice Act (the Act). Caday also filed a demurrer contending that the motion for judgment was insufficient in law because it failed to state a cause of action.
Upon consideration of argument of counsel, the trial court sustained both the motion to dismiss and the demurrer. Thereafter, the court denied the plaintiff's motion for leave to file an amended motion for judgment. We awarded the plaintiff this appeal from the trial court's September 1991 order dismissing the action.
On appeal, the plaintiff's assignments of error raise three issues: Whether the trial court erred in ruling that the plaintiff was required to file a notice of claim under the Act; whether the trial court erred in sustaining the demurrer; and whether the trial court erred in refusing to allow the plaintiff to amend her motion for judgment after the demurrer was sustained.
The case turns on the legal sufficiency of the allegations of the motion for judgment, there being no dispute on appeal that the notice, if required, was not given. Thus, we will assume the truth of all material facts, not Conclusions of law, that are properly pleaded.
The plaintiff alleges that she was an employee of Buchanan General Hospital and "worked in close proximity to" Wade in the course of her employ at the hospital. She asserts that on "numerous occasions" Wade sexually harassed her in spite of her repeated protests about his behavior.
She alleges that, on January 25, 1989, she consulted Dr. Caday due to the stress and anxiety caused by Wade's conduct. She asserts that she "requested a mild sedative to assist her in coping with the emotional distress caused by" Wade.
The plaintiff alleges that upon arriving at Caday's office, she "informed him that the matter was highly confidential and requested that the nurse then present leave the room." She further alleges that Caday "assured" her "that all matters discussed would remain confidential."
"Relying on his representations," the plaintiff asserts, she informed Caday about "the problems she had encountered with"
Wade. She alleges that Caday granted her "a medical excuse from work due to her emotional distress caused by" Wade.
The plaintiff asserts that upon returning to work two days later, on January 27, she learned that one Kathy Keene, an employee of Caday and of the hospital, "had discussed her meeting and the cause of her meeting with several other employees at" the hospital.
The plaintiff alleges that "Caday failed to control his employees and allowed his employees, as his agents, to breach the confidentiality inherent to his position." She further alleges that, as a result of the actions of Wade and Caday, she "has suffered severe emotional distre
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