Aetna Cas. & Sur. Co. v. Price

• Decision Date: 17 January 1966
• Citation: 206 Va. 749,146 S.E.2d 220
• Court: Virginia Supreme Court
• Parties: AETNA CASUALTY & SURETY COMPANY v. Weldon A. PRICE.

Page 220

146 S.E.2d 220

206 Va. 749

AETNA CASUALTY & SURETY COMPANY v. Weldon A. PRICE.

Supreme Court of Appeals of Virginia.

Jan. 17, 1966.

Rehearing Denied March 7, 1966.

Charles H. Duff, Arlington (Duff & Slenker, Arlington, on brief), for plaintiff in error.

Robert L. Ellis, Arlington (Anthony J. Siciliano, John J. Daly, Paul F. Sheridan Siciliano & Daly, Arlington, on brief), for defendant in error.

Before EGGLESTON, C. J., and BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

CARRICO, Justice.

In this writ of error, we are called upon to decide, for the first time, the question of the liability of an insurance company for its refusal to settle a claim against its insured for an amount within the policy limits where a judgment in excess of such limits is thereafter secured against the insured.

The situation before us developed in the following manner:

Dr. Weldon A. Price, a pediatrician practicing in Arlington County, carried a Physicians', Surgeons' and Dentists' Professional Liability Coverage policy with Aetna Casualty and Surety Company, with a $50,000 limit of liability for each claim, or $150,000 in the aggregate. The policy period was for one year from August 12, 1953.

On November 2, 1953, a baby girl, Michele Neyland, was born to Mr. and Mrs. Herbert M. Neyland in Arlington Hospital. Mrs. Neyland was attended at the birth and prior thereto by Dr. Donald C. McCollum, and his partner, Dr. Charles K. Latven.

The child came under the pediatric care of Dr. Price, although his partner, Dr. Robert H. Detwiler, first saw and examined the infant girl immediately after her birth.

On October 25, 1956, an action was instituted in the United States District Court for the District of Columbia by the infant, Michele Neyland, by John F. Nieman, her next friend, and by her father in his own right against Doctors McCollum, Latven, Detwiler and Price.

The complaint filed in that action alleged that the child had 'contracted a destructive blood disease known as 'erythroblastosis fetalis,' suffering extensive damage to her brain and nervous system, as a direct and proximate result of the negligence and carelessness' of the four doctors. The basis of the negligence charged against the doctors was that they had failed to give the child a necessary exchange blood transfusion immediately after her birth. The action sought $200,000 in damages for the infant and $80,000 for her father.

Only Dr. McCollum, who was a resident of the District, and Dr. Price, who had privileges in the District hospitals, were served with process in the Neyland action. Aetna, which carried malpractice insurance on all four doctors named in the action, employed John L. Laskey, a member of the District bar, to represent Doctors McCollum and Price. The doctors denied all responsibility for the child's condition and all liability for the claims asserted against them.

The case was not brought to trial until February, 1962. Before the trial commenced, the court, upon its own motion, dismissed the two unserved doctors from the case. Upon motion of Mr. Neyland, the ad damnum clause in his claim was increased from $80,000 to $280,000.

The jury returned a verdict in favor of Dr. McCollum. However, verdicts were returned against Dr. Price in the amounts of $20,000 on the infant's claim and $100,000 on the father's claim. The verdicts were approved by the court in its final judgments. On appeal, the judgments were affirmed.

Aetna, pursuant to an order of the District Court, paid into the registry of the court $20,000, plus interest and costs, to cover the $20,000 judgment and $50,000, plus interest and costs, to apply on the $100,000 judgment.

Thereafter, Dr. Price brought an action against Aetna in the Circuit Court of Arlington County, seeking to recover the sum of $50,000, representing the balance due by him on the District of Columbia judgment. His motion for judgment, in the Arlington action, was based upon Aetna's alleged negligence and had faith in refusing to settle the Neyland claims against him for $45,000, an amount within the limits of his policy.

Aetna filed grounds of defense denying liability for Dr. Price's claim. A jury trial was held which resulted in a verdict against Aetna in the sum of $50,000, which was approved by the trial court in its final judgment. Aetna was granted a writ of error.

In the trial court, there was introduced into evidence, as an exhibit, a 'Joint Appendix,' containing the relevant testimony in the trial of the case of Neyland v. Price in the District of Columbia. From that testimony the sad story of Michele Neyland is unfolded.

Michele's mother, Susanne Neyland, had Rh negative blood while her father, Herbert Neyland, had Rh positive blood. A child born of parents with such a difference in the Rh factor in their blood may be harmfully affected by such incompatibility.

Usually, where such a blood incompatibility exists, there is no difficulty in the first or second pregnancies. However, as a result of a previous birth of an Rh positive baby to an Rh negative mother, a subsequent child may be affected if its blood is also Rh positive. This is so because, in the earlier pregnancy with the Rh positive baby, the blood of the Rh negative mother becomes sensitized. When so sensitized, the mother's blood produces an antibody, or a protein substance which 'is a protective mechanism on the part of the mother to protect herself against the red cells of the child.' When the red cells of the Rh positive baby get into the circulation of the Rh negative mother, 'they are foreign red cells to the mother and the mother tries to protect herself against these red cells and then produces this antibody which in turn destroys the red cells.'

If the Rh negative mother, having once given birth to an Rh positive baby, is later pregnant with another Rh positive child, her blood sensitivity may increase. This is due to the activity of the antibodies in the mother's blood as they attack and destroy the red blood cells of the unborn infant.

A child born of an Rh negative mother and an Rh positive father may have either Rh negative or Rh positive blood. It is possible, by conducting pre-natal blood examinations of the parents, to determine their Rh blood type, to predict the Rh blood factor of the child and to gain an indication as to whether the baby might be adversely affected by the Rh incompatibility of the parents.

One of the examinations, known as a zygosity test, is performed on the father's blood. His Rh positive blood may fall into one of two main blood groups. The first is heterozygous Rh positive, 'which means that there is a roughly 50-50 chance that the child may inherit the father's Rhpositive blood type. There is an equal chance that the child may take after the mother and be Rh-negative.' The second group is homozygous Rh positive in which 'every one of those children would have to inherit the father's Rh-positive blood type.'

Examination of the pregnant Rh negative mother's blood will disclose if there is an increase in her blood sensitivity caused by the activity of the protective antibodies developed by her. Such an increase indicates the presence of an Rh positive fetus and is 'presumptive evidence that the baby may have trouble.'

The trouble which the new-born baby may have, if it is Rh positive, is the disease of erythroblastosis fetalis. This is a disease 'in which an excessive destruction of red blood cells in the infant occurs.' The disease may cause anemia, jaundice, brain damage, cerebral palsy and even death. If the destruction of the new-born child's red cells causes jaundice, there may be an accumulation of bilirubin, the blood pigment, in the tissues of the baby. If this accumulation becomes excessive, 'the toxic effect of this jaundice pigment, the bilirubin, can affect the cells of the brain to such a degree that they will be incapacitated and may even die.'

When the child's brain cells, those located in the stem of the brain, are affected by the jaundice pigment, a condition known as kernicterus, which is a form of cerebral palsy, may result from erythroblastosis. Kernicterus 'is a disturbance of the growth processes within the brain and * * * the child suffering from such a condition will have mental retardation.'

The possible presence of the disease of erythroblastosis in a new-born child may be discovered by what is known as the Coombs test, performed on the infant's blood. A positive result of the test 'means that you have to be careful and to do some more tests.' A negative result evidences that the disease does not exist and 'means that you have no problem.'

Erythroblastosis also evidences its presence by a number of symptoms, appearing in the first five or six days of life of the new-born baby. These symptoms are: anemia; jaundice, usually appearing within the first twenty-four to thirty-six hours after birth; enlargement of the spleen or liver; respiratory difficulty; lethargy; weak cry; weak sucking reflex; spasms of the muscles in the back, and choreoathetoid, or wormlike, movements of the extremities. The presence of jaundice, which is the most significant symptom, can be observed clinically and its severity may be determined by a serum bilirubin test. Such a test was 'not done in' Arlington Hospital in possible erythroblastosis cases in 1953, however, according to the hospital pathologist, because 'its application to this disease entity is a recent development.'

Medical witnesses who testified in the Neyland trial agreed that an exchange transfusion of the blood of a new-born infant suffering from erythroblastosis is the proper method of treating the disease. In such a transfusion, most of the infant's sensitized blood is removed and replaced with compatible blood. It is important, however, that such transfusions be 'given early and repeated as necessary.' But the exchange transfusion 'is sometimes a hair raising experience,' and can cause severe...