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Auer v. Miller6/9/2005
The primary issue in this appeal, one of first impression regarding the interpretation of Code § 8.01-581.18, is whether the trial court erred in granting immunity to a physician pursuant to said Code section. A second issue is whether the trial court erred in vacating a verdict against the physician's practice group.
I.
Marybelle M. Auer (the Plaintiff), as Administratrix of the Estate of Nicholas Auer (Auer), filed this wrongful death action against Lenox Baker, M.D., Mid-Atlantic Cardiothoracic Surgeons, Ltd. (Mid-Atlantic), Edward Miller, M.D., and Cardiovascular Associates, Ltd. (Cardiovascular Associates). The Plaintiff alleged that the "Defendants' joint and several duty to exercise the proper degree of care [for Auer] was breached" and that such "negligence proximately caused [Auer's] untimely death."
Dr. Miller and Cardiovascular Associates filed a Special Plea of Immunity, which the trial court granted in part and denied in part. The court ruled that Dr. Miller and Cardiovascular Associates were immune pursuant to Code § 8.01-581.18(B) for any action or inaction relating to laboratory tests ordered by Dr. Baker during Auer's May 15-23, 2002 hospital admission. The court denied the special plea as to the allegations of negligence for failure to treat Auer following his May 23 discharge from the hospital.
The case was tried by a jury, and verdicts were returned in favor of Dr. Miller, against Dr. Baker and Mid-Atlantic in the amount of $400,000 each, and against Cardiovascular Associates in the amount of $200,000. Cardiovascular Associates moved to have the verdict against it set aside, and the trial court granted the motion, concluding that "there was insufficient evidence upon which to submit the issue of proximate cause . . . to the jury."
We awarded the Plaintiff this appeal in order to consider her assignments of error, which state the following:
I. The trial court erred in granting Miller mmunity under § 8.01-581.18(A) and (B).
A. The trial court erred when, by virtue of granting immunity, Defendants' joint and several liability was judicially redacted
B. The trial court erred when, in conformity with the immunity ruling, t granted jury instructions temporally segregating Defendants' liability
II. The trial court erred when it vacated the verdict against the cardiology roup.
II.
On May 15, 2002, Auer was admitted to Sentara Norfolk General Hospital (the Hospital) by Dr. Baker, a cardiovascular surgeon. Dr. Miller was Auer's cardiologist. On that date, Dr. Baker removed Auer's native aortic valve and replaced it with a prosthetic valve. Dr. Baker also ordered a culture and sensitivity test (C&S) of Auer's native valve.
The C&S indicated that Auer's native valve was positive for staphylococcus. Dr. Baker, however, did not review the report of the test, which had been posted to Auer's chart. Dr. Miller, who had seen Auer several times in the hospital, also did not review the report. Subsequently, the prosthetic valve became infected, and the infection remained untreated while Auer was a patient in the Hospital.
Auer was discharged from the Hospital on May 23, 2002.
Both Dr. Miller and Dr. Baker prepared discharge summaries.
On May 30, 2002, the Plaintiff, who was concerned about Auer's condition, made several telephone calls to Dr. Miller's practice group, Cardiovascular Associates. According to the Plaintiff, someone at Cardiovascular Associates advised her to contact Dr. Baker for post-operative complaints. The Plaintiff had also placed several calls to Mid-Atlantic between
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