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Auer v. Miller6/9/2005
May 23 and May 29, 2002.
Auer was readmitted to the Hospital on June 3, 2002, and was subsequently diagnosed with endocarditis, an infection of the inner lining of the heart. He died shortly thereafter.
III.
We first consider whether the trial court erred in granting immunity to Dr. Miller pursuant to Code § 8.01-581.18(B). That Code section provides, in pertinent part, as follows:
Any physician shall be immune from civil liability for any failure to review, or to take any action in response to the receipt of, any report of the results of any laboratory test or other examination of the physical or mental condition of any person, which test or examination such physician neither requested nor authorized in writing, unless such report is provided directly to the physician by the person so examined or tested with a request for consultation.
It is firmly established that, when language of a statute is plain and unambiguous and its meaning is clear and definite, a court is bound by that language. Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d 494, 496 (2001). A court is not permitted to alter or rewrite a statute; this is strictly a legislative function. Halifax Corporation v. Wachovia Bank, 268 Va. 641, 653, 604 S.E.2d 403, 408 (2004). Whether a statute is wise is also a matter for the legislature and not for a court. Horner v. Dept. of Mental Health, 268 Va. 187, 193, 597 S.E.2d 202, 205 (2004).
We find the language in subsection B of Code § 8.01-581.18 to be clear and unambiguous. It clearly provides that a physician shall be immune from civil liability for any failure to take any action in response to a laboratory test or other examination that the physician did not request or authorize unless the person tested or examined provides a copy of the report of the results and requests a consultation.
The Plaintiff contends, however, that Code § 8.01-581.18 applies only to tests ordered or authorized in outpatient situations and "was simply not intended to exonerate an attending physician from reading a lab report." We do not agree.
The statute's application is not limited to outpatient situations. Indeed, the statute specifically applies to "any report . . . of any person." Had the General Assembly intended to limit the statute's application to outpatient situations, it could have so stated. Likewise, had the General Assembly intended to exclude either an attending physician or a treating physician from the statute's application, it could have said so.
This Court cannot amend or rewrite the statute. Halifax Corporation, 268 Va. at 653, 604 S.E.2d at 408.
In the present case, Code § 8.01-581.18(B) clearly applies to Dr. Miller. He "neither requested nor authorized" the C&S, and the report of the test was not provided to him with a request for consultation. Therefore, the trial court did not err in granting immunity to Dr. Miller.
The Plaintiff further contends that the trial court erred in prohibiting the jury from considering Dr. Miller's alleged negligence regarding his failure to review the test results. She asserts that Dr. Miller and Dr. Baker were concurrently negligent and, therefore, should share joint and several liability. We disagree.
Having correctly determined that Dr. Miller was immune from liability regarding review of the test report, the trial court necessarily rejected the Plaintiff's contention that the two doctors were jointly and severally liable. At trial, the sole issue with respect to Dr. Miller and Cardiovascular Associates was whether they failed to appropriately respond to the Plaintiff's telephone calls on May 30, 2002, regarding
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