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Oraee v. Breeding11/4/2005
In this appeal, we revisit the scope of immunity from civil liability afforded a physician under Code § 8.01-581.18(B) and our decision in Auer v. Miller, 270 Va. 172, 613 S.E.2d 421 (2005). We conclude that the immunity applies only when a physician fails to review, or take action in response to the receipt of, a report containing the results of a laboratory test or examination conducted "not at the request or with the written authorization of a physician." Code § 8.01-581.18(A). Thus, we will affirm the judgment of the circuit court refusing to grant immunity pursuant to Code § 8.01-581.18(B) to a physician who failed to obtain the results of certain laboratory tests requested by another physician. In reaching this result, we will also overrule our decision in Auer.
MATERIAL PROCEEDINGS AND FACTS
The appellee, Harlis C. Breeding Jr., executor of the estate of Sherry E. Breeding, deceased, filed a medical malpractice action against Samad Oraee, M.D., and his employer, Samad Oraee M.D., P.C., (collectively, Dr. Oraee). The jury returned a verdict in favor of the plaintiff against Dr. Oraee. In a motion for summary judgment and in motions to strike the plaintiff's evidence both at the close of that evidence and at the conclusion of all the evidence, Dr. Oraee argued that he was immune from civil liability pursuant to Code § 8.01-581.18(B). The circuit court denied the various motions and entered judgment for the plaintiff.
The events precipitating this medical malpractice action commenced on January 3, 2003, when the decedent sought treatment at an emergency room for complaints of facial drooping. Dr. Oraee was called in for a neurology consultation. Because a certain test was not available during the weekend hours at the hospital where the decedent first went, Dr. Oraee transferred her to a different hospital so that she could undergo a test known as a magnetic resonance imaging scan (MRI) of her brain. The MRI revealed that the decedent had suffered a stroke as well as prior strokes on both sides of her brain. She had not, however, exhibited symptoms of a stroke until she experienced the facial drooping associated with the stroke that caused her to go to the emergency room.
As a result of the MRI and other diagnostic tests, Dr. Oraee ruled out several possible causes for the decedent's strokes. At that point, he was left with a possible diagnosis of a "clotting disorder" perhaps caused by "antiphospholipid antibody syndrome." Consequently, Dr. Oraee requested a rheumatology consultation by Dr. Kivanc.
On January 7, 2003, while the decedent was still hospitalized, Dr. Kivanc evaluated the decedent's condition and ordered multiple laboratory tests. Some of the tests were specifically for the purpose of determining whether the decedent had antiphospholipid antibody syndrome. Dr. Oraee knew that Dr. Kivanc had seen the decedent and had ordered those particular blood tests. Dr. Oraee also knew that it would take five to ten days for the results of the tests to be available.
The next day, January 8, Dr. Oraee discharged the decedent from the hospital and told her to follow up with him as an outpatient. An appointment was scheduled for the decedent to come to Dr. Oraee's office on January 22. Because the decedent's daughter called Dr. Oraee's office and reported that her mother was not feeling well, the appointment was changed to January 17. At that appointment, Dr. Oraee knew that the clotting disorder was still being considered as the cause of the decedent's strokes, but he did not take any action to obtain the results of the blood tests that had been outstanding at the time of the decedent's discharge from the hospital. The results o
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