Glisson v. Loxley

• Decision Date: 04 March 1988
• Docket Number: No. 850328,850328
• Citation: 366 S.E.2d 68,235 Va. 62
• Parties: Sybil G. GLISSON v. Sidney S. LOXLEY, M.D. Record
• Court: Virginia Supreme Court

Page 68

366 S.E.2d 68

235 Va. 62

Sybil G. GLISSON v. Sidney S. LOXLEY, M.D.

Record No. 850328.

Supreme Court of Virginia.

March 4, 1988.

Carlton F. Bennett (Beverly A. Yeskolski, Virginia Beach, on briefs), for appellant.

Carolyn P. Oast (John A. Heilig, Kimberlea Rea Cowley, Heilig, McKenry, Fraim & Lollar, Norfolk, on brief), for appellee.

PRESENT: All the Justices.

COMPTON, Justice.

In this action brought by a patient against her physician, we determine whether the trial court correctly ruled that it lacked subject-matter jurisdiction. Our decision depends on an interpretation of the statutes relating to the Virginia medical malpractice review system.

Appellant Sybil G. Glisson sued appellee Sidney S. Loxley, M.D., in a two-count motion for judgment filed August 24, 1984. In the first count, the plaintiff alleged the defendant was guilty of a breach of contract on September 8, 1982. In the second count, the plaintiff alleged the defendant committed a battery upon her on the same date.

Subsequently, the defendant filed a motion to dismiss, asserting that both counts of the motion for judgment "are based in fact upon medical negligence." The defendant further asserted that the plaintiff had not complied with the statutory provision requiring a notice of claim to be filed before suit is brought in a malpractice action. Thus, the defendant contended, the court was without jurisdiction to hear the case.

The trial court agreed with the defendant and sustained the motion. We awarded the plaintiff this appeal from the February 1985 order dismissing the action.

No evidence was taken on the motion to dismiss. Apparently, the trial court decided the matter on the pleadings, representations of counsel, and memoranda of law. The only facts properly before us are those recited in the motion for judgment. Thus, we will treat those factual allegations as on demurrer for the purpose of reviewing the trial court's ruling on the motion to dismiss.

In the first count, the plaintiff alleged that the defendant was a duly licensed physician practicing in Chesapeake. She asserted that, in July 1982, she was examined for pain and weakness in her right knee in the emergency room of a local hospital. She alleged that after the examination she was discharged. She asserts that she "consulted" the defendant four days later, at which time he diagnosed her condition as a tear of the medial meniscus and "recommended surgery to correct the problem."

The plaintiff further alleged that she and the defendant entered into a "special," oral contract under which the defendant was to perform surgery. The plaintiff alleged,

"The terms of the contract were as follows: the defendant was to perform an arthroscopy ¹ on the plaintiff's right knee for the purpose of diagnosis only. If the arthroscopy revealed a torn medial meniscus, confirming the defendant's diagnosis, the defendant was to do an arthrotomy ² for the purpose of repair or removal of the medial meniscus."

The plaintiff also alleged, "The parties specifically agreed that the defendant would not perform arthroscopic surgery upon the plaintiff."

Continuing, the plaintiff asserted that the defendant performed a diagnostic arthroscopy upon the plaintiff "according to the terms of their contract" on September 8, 1982, discovered a torn medial meniscus, and performed arthroscopic surgery ³ in breach of their "special" contract. The plaintiff further asserted that because she did not improve following the September surgery, she was forced to undergo additional surgery in December 1982, during which an arthrotomy was performed and the torn meniscus was removed. The plaintiff sought judgment against the defendant for $100,000, asserting she "was caused to suffer severe physical pain and discomfort, additional medical expenses, lost wages and mental anguish."

In the second count, the plaintiff asserted the arthroscopic surgery was performed without her consent and constituted a battery upon her. She alleged the same elements of damage as particularized in the first count.

The issues raised in this appeal involve several statutes which were among the laws enacted by the 1976 General Assembly to impose a limitation on the liability of health care providers in medical malpractice cases. Acts 1976, ch. 611 at p. 784. Code § 8.01-581.2 provides, "No action may be brought for malpractice against a health care provider unless the claimant notifies the health care provider in writing by registered or certified mail prior to commencing the action." (Emphasis added.) The remainder of the statute sets forth procedural steps for a review of the claim by a medical malpractice review panel.

According to Code § 8.01-581.1, the term "malpractice" means "any tort based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient." (Emphasis added.) The statute provides that the term "health care" means "any act, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical diagnosis, care, treatment or confinement."

Upon the first count, the plaintiff argues that she has sued in contract and that in order to be an action for "malpractice" under the malpractice statutes, the plaintiff's action must be in tort based on health care. She contends that the unambiguous language of the malpractice statutes excludes actions for breach of contract, and that the term "tort" in the statute cannot be interpreted to include a breach of contract. Thus, she contends, the trial court erred in ruling that she was required to comply with the statutory notice provision prior to suing at law.

The defendant argues that the trial court correctly ruled that the plaintiff's failure to comply with the notice requirement of § 8.01-581.2 rendered it without jurisdiction in this case. Defendant contends that the plaintiff's "nominally styled 'breach of contract' count for personal injuries" actually is an action sounding in tort and thus is covered by the malpractice statutes.

In addition, the defendant argues that the definitions in the malpractice statutes demonstrate a clear intention that actions arising from contractual health care services fall within the ambit of the statutes and are subject to the notice provision. He emphasizes language in § 8.01-581.1 that "health care" means "any act, or treatment performed or furnished, or which should have been performed or furnished." He says the italicized words encompass and contemplate contract breach. Thus, he argues, the malpractice statutes are controlling over "so-called 'contract' claims."

Also, defendant argues that the definitional portions of the malpractice statutes codify this Court's earlier interpretation of a health care provider's relationship with the patient. For example, he notes, we have enunciated a patient's right of action against a hospital which acts through its agents (intern physicians and nurses) as follows: "Any negligent performance of their duties, whether by lack of professional equipment or lack of professional skill, constituted a breach of the contract made by their employer." Stuart Circle Hospital Corp. v. Curry, 173 Va. 136, 147, 3 S.E.2d 153, 157 (1939). Defendant contends that the Court "predicated recovery for breach of the hospital's 'contract' with its patient upon a showing of negligence i.e., that negligent discharge of the interns' duties to render care in compliance with their professional standards constituted a breach of contract with the patient." Thus, the defendant says, "The Court inextricably linked contract and tort principles in its interpretation of the special professional relationship between the physician and his patient."

We disagree with defendant's arguments on the first count. To adopt defendant's position would transform the Court's role in this case from statutory interpreter to judicial legislator.

The whole malpractice statutory scheme focuses on tort and not breach of contract. The word "tort" has a settled meaning in Virginia. "A tort is any civil wrong or injury; a wrongful act (not involving a breach of contract) for which an action will lie." Jewett v. Ware, 107 Va. 802, 806, 60 S.E. 131, 132 (1908) (internal quotation marks omitted).

"Tort" is also defined as the violation of some duty owing to the plaintiff imposed by the general law or otherwise. Generally, the "duty must arise by operation of law and not by mere agreement of the parties." Black's Law Dictionary 1335 (5th ed. 1979). Stated differently, a "tort" is a "legal wrong committed upon the person or property independent of contract." Id.

Turning to the statutory framework, we find an important declaration in the preamble to the 1976 enactment which established the medical malpractice review system. In the statement of legislative purpose, the General Assembly specified that the "significant problem" addressed necessitated "the imposition of a limitation on the liability of health care providers in tort actions commonly referred to as medical malpractice cases." Acts 1976, ch. 611 at p. 784 (emphasis added). Clearly, the legislature was directing its attention to torts and not breaches of contract.

Consistent with this statement of legislative intention, the statutory provisions deal...