Oraee v. Breeding

• Decision Date: 04 November 2005
• Docket Number: Record No. 050206.
• Parties: Samad ORAEE, M.D., et al. v. Harlis C. BREEDING, Jr., Executor of the Estate of Sherry E. Breeding, Deceased
• Court: Virginia Supreme Court

Page 48

621 S.E.2d 48

Samad ORAEE, M.D., et al. v. Harlis C. BREEDING, Jr., Executor of the Estate of Sherry E. Breeding, Deceased

Record No. 050206.

Supreme Court of Virginia.

November 4, 2005.

Joyce A.N. Massey (Tara M. McCarthy; William D. Cremins; McCarthy, Massey & Mitchell; Cremins, Gentile & Markley, Fairfax, on briefs), for appellants.

William E. Artz, Rosslyn, for appellee.

Present: All the Justices.

OPINION BY Justice CYNTHIA D. KINSER.

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.¹ 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.² 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."³ 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 of the tests, which were available on January 13, confirmed that the decedent had antiphospholipid antibody syndrome. Instead, Dr. Oraee discontinued one of the two antiplatelet medications that had been prescribed at the time of her discharge from the hospital and reported to her primary care physician that the decedent was "much better."

On January 29, the decedent was again admitted to a hospital, having suffered "a second massive stroke." During that admission, the diagnosis of antiphospholipid antibody syndrome was again confirmed, and the decedent, for the first time, was placed on anticoagulant medication. As a result of that stroke, the decedent died on March 12, 2003.

During the trial of this action, two doctors testified as expert witnesses for the plaintiff with regard to the allegations against Dr. Oraee. Both witnesses concluded that the decedent had antiphospholipid antibody syndrome and that she should have been placed on anticoagulant medication, as opposed to antiplatelet medication, no later than January 17 when Dr. Oraee saw her in his office following her discharge from the hospital. Both experts also opined that, if the decedent had been placed on anticoagulant medication on January 17, she would not have suffered the subsequent massive stroke on January 29 and would still be alive.

With regard to the question whether Dr. Oraee breached the applicable standard of care, one of the witnesses, Dr. Bruce T. Adornato, testifying as an expert in the field of neurology, opined that, subsequent to the decedent's discharge from the hospital and the laboratory test results becoming available, the standard of care required Dr. Oraee to inquire about and obtain the results of the tests. This is so because the results were abnormal and had implications for the decedent's treatment. Dr. Adornato further testified that the standard of care required Dr. Oraee to offer the decedent the opportunity to be treated with anticoagulant medication, "i.e., Coumadin rather than just aspirin." During cross-examination, Dr. Adornato agreed that Dr. Oraee's treatment of the decedent did not fall below the applicable standard of care until January 17, when Dr. Oraee should have diagnosed antiphospholipid antibody syndrome and offered the decedent appropriate treatment. But, as Dr. Adornato explained, Dr. Oraee could not have made the correct diagnosis without the results of the laboratory tests.

The other witness, Dr. Lee Levitt, an expert in the fields of hematology and medical oncology, testified similarly. Dr. Levitt opined that, at the time of the decedent's follow-up visit on January 17, Dr. Oraee breached the standard of care by not being aware of the results of the laboratory tests, which would have made "a clear difference in her diagnosis and in management." As Dr. Levitt explained, Dr. Oraee was involved in the request for a consultation by a rheumatologist, the appropriate laboratory tests were requested to make a diagnosis of antiphospholipid antibody syndrome, those tests were performed, and the results were available.

ANALYSIS

The sole question in this case is whether the circuit court erred in refusing to grant Dr. Oraee immunity from civil liability pursuant to the provisions of Code § 8.01-581.18(B). The question is one of law, meaning that we review the circuit court's resolution of it de novo. Davenport v. Little-Bowser, 269 Va. 546, 552, 611 S.E.2d 366, 369 (2005). The statute at issue states:

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 or by the State Department of Health.

Code § 8.01-581.18(B).

As both parties recognize, answering the question raised in this appeal implicates our recent decision in Auer. There, the trial court granted immunity under Code § 8.01-581.18(B) to a defendant doctor, Nicolas Auer's cardiologist, for his alleged failure to review or to take any action in response to the results of a laboratory test ordered by a cardiovascular surgeon during Auer's hospitalization. Auer, 270 Va. at 175, 613 S.E.2d at 422. Auer had undergone surgery to remove his native aortic valve and to replace it with a prosthetic valve. Id. at 175-76, 613 S.E.2d at 423. The surgeon had ordered a culture and sensitivity test on the native valve, and the results of the test were positive for staphylococcus. Id. at 176, 613 S.E.2d at 423. The cardiologist saw Auer several times during the hospitalization and prepared a discharge summary, but he never reviewed the report of the test results even though the report had been posted to Auer's chart. Id. The surgeon likewise failed to review the report. Id. Consequently, the infection remained untreated, and Auer subsequently died from endocarditis. Id.

On appeal, we affirmed the trial court's judgment. Id. at 179, 613 S.E.2d at 423. We found "the language of subsection B of Code § 8.01-581.18 to be clear and unambiguous" and stated that this subsection

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.

Id. at 177, 613 S.E.2d at 423. We concluded that Code § 8.01-581.18(B) applied to the cardiologist because he "neither requested nor authorized" the culture and sensitivity test and Auer...