Taylor v. Mobil Corp., s. 930912

• Decision Date: 10 June 1994
• Docket Number: Nos. 930912,930913,s. 930912
• Citation: 248 Va. 101,444 S.E.2d 705
• Parties: , 63 USLW 2031 Mary M. TAYLOR, Personal Representative of the Estate of Harry O. Taylor v. MOBIL CORPORATION, et al. MOBIL CORPORATION, et al. v. Mary M. TAYLOR, Personal Representative of the Estate of Harry O. Taylor. Record
• Court: Virginia Supreme Court

Page 705

444 S.E.2d 705

248 Va. 101, 63 USLW 2031

Mary M. TAYLOR, Personal Representative of the Estate of Harry O. Taylor v. MOBIL CORPORATION, et al.

MOBIL CORPORATION, et al. v. Mary M. TAYLOR, Personal Representative of the Estate of Harry O. Taylor.

Record Nos. 930912, 930913.

Supreme Court of Virginia.

June 10, 1994.

John Charles Thomas, Harry M. Johnson, III (Lori M. Elliott, John J. Brandt, Hunton & Williams, Slenker, Brandt, Jennings & Johnston, on brief), for appellees in Record No. 930912 and appellants in Record No. 930913.

Present: CARRICO, C.J., COMPTON, STEPHENSON, WHITING, LACY and KEENAN, JJ., and POFF, Senior Justice.

WHITING, Justice.

In each of these two appeals from a judgment against a negligent physician and his employer, the primary issue involves a statutory restriction on the plaintiff's tort recovery rights. In one appeal, the primary issue is whether the plaintiff's action is barred by former Code § 65.1-40, now Code § 65.2-307, the exclusive remedy provision of the Virginia Workers' Compensation Act (the Act). ¹ In the other appeal, the primary issue is whether the defendants are entitled to the protection of the limited recovery of damages provided in Code § 8.01-581.15 (the medical malpractice cap).

In the court below, the plaintiff prevailed on the workers' compensation issue and on the factual issue of the physician's negligence. The defendants prevailed on their claim of entitlement to the medical malpractice cap. In accord with settled appellate principles, we state the facts relating to each issue and all fair inferences to be drawn from those facts in the light most favorable to the party prevailing on each issue.

Dr. Clarion E. Johnson, a cardiologist and an employee of Mobil Corporation (Mobil), worked at Mobil's clinic. The clinic served employees of Mobil and its wholly owned subsidiary, Mobil Oil, and was located at the joint headquarters of those corporations in Fairfax County. In March 1990, Dr. Johnson conducted a routine physical examination of Harry O. Taylor, an executive employed by Mobil Oil. Because of Taylor's high cholesterol count, Dr. Johnson concluded that Taylor was in a high-risk category for coronary artery disease.

On January 23, 1991, Taylor consulted Dr. Johnson at the clinic about mouth sores. Taylor did not tell Dr. Johnson that he had been experiencing what Taylor thought were "heartburn" symptoms for a few days prior to this consultation because Taylor thought he had a virus or stomach flu. However, his "heartburn" persisted and, a week later, Taylor consulted Dr. Johnson at the clinic about these symptoms. Dr. Johnson gave Taylor a bottle of nitroglycerin pills and told him to take one when he experienced these pains. ² Dr. Johnson also scheduled a stress test in the clinic on February 7.

On February 2 and 4, Taylor experienced heartburn symptoms and took a nitroglycerin pill on each occasion, but it failed to provide relief. ³ Taylor's February 4 pains occurred after he had been using his treadmill at home. As a result, Taylor decided not to use his treadmill until after he had his stress test on February 7.

On February 7, in the presence of Dr. Johnson, Taylor took the stress test at the clinic. As part of that test, Taylor exercised as an electrocardiogram machine measured the electric activity of his heart which was recorded in graph form. Those measurements indicated that he was suffering from heart disease and experiencing chest pain. Taylor also told Dr. Johnson that he had experienced heartburn symptoms while using his treadmill at home. Nevertheless, Dr. Johnson told Taylor that he was not suffering from heart disease, that he could resume use of his treadmill, and that Taylor should return to the clinic in a year.

Taylor resumed the use of his treadmill, and he took antacids to counteract the continuing burning sensations he felt in his chest. Taylor died on the evening of February 14 after suffering a massive heart attack at home. A postmortem examination revealed that, over a period of years, one of Taylor's three major coronary arteries had become clogged with deposits of cholesterol, forming plaque on the walls of the artery.

According to the testimony of the medical experts at trial, plaque buildup in arteries eventually cracks and forms blood clots, further restricting blood flow. The additional restriction manifests itself in chest pain or pressures in the chest that are warning signs of a possible heart attack. If the condition is not properly treated, a blood clot formed by broken off plaque may block the flow of blood sufficiently to cause a heart attack, as it did in Taylor's case.

Mary M. Taylor, Taylor's widow, consulted counsel regarding a possible wrongful death action against Dr. Johnson and his employer, Mobil. Upon learning of this, defendants also consulted counsel. Defendants' counsel thereafter discovered that Dr. Johnson's license to practice medicine in the Commonwealth had lapsed on December 31, 1990.

Although Dr. Johnson had inquired about the renewal of his license prior to its expiration, he did nothing further after the licensing authority erroneously informed him that it had already been renewed. In fact, only Dr. Johnson's right to prescribe drugs had been renewed in 1990. As soon as Dr. Johnson discovered that he had been misadvised, he applied for and received the necessary license to practice medicine in Virginia.

Mrs. Taylor, as personal representative of Taylor's estate, brought this wrongful death action against Dr. Johnson and Mobil, ⁴ charging Dr. Johnson with negligence in Taylor's care and treatment, and charging Mobil with negligence in hiring and supervising Johnson. The defendants filed a plea in bar in which they asserted that the Act provided the exclusive remedy for the plaintiff's recovery, thereby precluding this action. The defendants also filed an alternative motion to limit the amount of any verdict that might be recovered against them to one million dollars, the maximum amount permitted under the medical malpractice cap.

The Honorable Johanna L. Fitzpatrick, then a circuit judge, considered evidence and argument on both pretrial matters and overruled the defendants' plea in bar. Although she deferred the final ruling on the defendants' malpractice claim to the judge who later would try the case, Judge Fitzpatrick made "binding" findings of fact on that issue. As pertinent, they were that: (1) "Dr. Johnson's failure to renew his license was inadvertent"; (2) the license "lapsed as a result of bureaucratic snafus"; (3) "Dr. Johnson was either licensed or was qualified to be licensed during the period of time in question" ; and (4) he immediately renewed his license upon discovering that he was unlicensed.

Later, following a five-day trial, a jury returned a verdict of four million dollars against both defendants ⁵ and distributed the award as follows: $3,911,750 to Taylor's widow, $75,000 to his daughter, Judith Creagh, and $13,250 to his personal representative for hospital, medical, and funeral expenses. The jury also awarded interest from the date of the verdict.

The court overruled all but one of the defendants' post-trial motions. The court sustained defendants' motion to limit the amount of the recovery to one million dollars, the medical malpractice cap established by Code § 8.01-581.15. Accordingly, in its final judgment, the court (1) reduced the principal amount of the verdict from four million dollars to one million dollars, and (2) directed that interest accrue from the date of the judgment and not from the date of the verdict, as fixed by the jury. The plaintiff appeals both rulings.

The defendants appeal the court's action in (1) granting two particular jury instructions and in (2) denying its pre-trial and post-trial motions to dismiss this action as barred by the Act. We will consider the latter issue first since it raises the question of the circuit court's subject matter jurisdiction.

I. WORKERS' COMPENSATION ACT

The resolution of this question turns on whether Taylor's death is covered by the provisions of the Virginia Workers' Compensation Act. If Taylor's death gave rise to a claim covered by the Act, this action at law is barred by former Code § 65.1-40, now Code § 65.2-307, which excludes all other rights and remedies of the personal representative.

Taylor's death gives rise to a covered claim if it was the result of (1) an "injury," (2) by "accident," (3) "arising out of [his employment]," and (4) "in the course of [his] employment." Code § 65.2-300; Snead v. Harbaugh, 241 Va. 524, 526, 404 S.E.2d 53, 54 (1991). A failure to establish any one of the foregoing requirements defeats coverage under the Act. Snead, 241 Va. at 526, 404 S.E.2d at 54.

As the defendants note, in order for Taylor's death to arise out of his employment, "the origin or cause of the injury" must be a risk connected with the employment. That risk must be an "actual risk" of employment, not merely the risk of being injured while at work. County of Chesterfield v. Johnson, 237 Va. 180, 185, 376 S.E.2d 73, 75-76 (1989) (rejecting the "positional risk" test to determine compensability). "[T]he arising out of test excludes 'an injury which comes from a hazard to which the employee would have been equally exposed apart from the employment.' " Id. at 183, 376 S.E.2d at 75 (quoting United Parcel Service v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 893 (1985)).

Although Taylor's use of the Mobil clinic may have been more convenient for Taylor and Mobil, the evidence discloses that Taylor was not required by Mobil to use the clinic. Nor did the evidence indicate that Mobil expected Taylor to use its facility, as in the defendants' cited case of Kim v. Sportswear, 10 Va.App. 460, 467, 393 S.E.2d 418, 422 (1990) (attendance at social event expected by employer).

Further, Taylor's heart condition had no connection with his employment. Taylor's consultation with...