January 24, 2014
Simpson v. Roberts, — S.E.2d —, 2014 WL 92032 (Va. 2014)
In Virginia and many other states, statutory caps limit the amount of compensation that an aggrieved patient can recover from her doctor. To bypass this limit, a victim of medical malpractice may want not to be considered a “patient.” This motivation brought the “Is fetus a patient?” question to the Virginia Supreme Court in Simpson v. Roberts, — S.E.2d —, 2014 WL 92032 (Va. 2014).
Complications that arose from an unsuccessful amniocentesis led to the birth of a child with damaged kidneys and cerebral palsy. After finding medical malpractice, the jury returned a $7,000,000 verdict in the child’s favor. Pursuant to Virginia’s statute, the court capped this award at $1,400,000. The child appealed all the way to the Virginia Supreme Court, arguing that the statute did not apply to her. This statute, she explained, caps compensation payable to a “patient” who suffered injury as a consequence of her doctor’s malpractice. The child argued that she was not a “patient”: when her mother’s doctor mishandled the amniocentesis procedure, she was not yet alive, while under the Virginia statute (and under common sense) one needs to be a living human being in order to be a “patient.” Based on that argument, the child asked the Court to decide her case by the common law doctrine of negligence that did not limit the award that the jury thought she deserves.
The Court agreed that the amniocentesis procedure involved only one “patient”: the child’s mother. However, it decided that the child became a “patient” later on, when she was born alive. At that point in time, the Court explained, the child became a “patient” and hence the statutory cap does limit her compensation after all.
This interpretation aligns with the cap’s statutory goal. However, it pays no attention to the fact that “patient” is an inherently relational concept: a person can properly be considered a patient only when she has a doctor. When the child was born, she surely had several doctors—pediatricians, neonatologists, and others—but those doctors did not include the obstetrician who mishandled the amniocentesis procedure. This obstetrician was her mother’s doctor, not hers. Arguably, therefore, the child sued the obstetrician in her capacity as a non-patient victim of a tort.
In my opinion, the Court should have decided the case the way it did without backdating the child’s status as a patient. Virginia’s statutory cap applies to “any verdict returned against a health care provider in an action for malpractice.” Virginia Medical Malpractice Act, Code § 8.01–581.15. This means that no action for medical malpractice can yield the plaintiff more than the statutory amount of compensation, regardless of whether she sues in her capacity as a patient. The cap extends to all plaintiffs who rightfully sue doctors for malpractice, and not just to patients. For example, in an action for wrongful death that resulted from medical malpractice, the decedent’s widow would have to suffice herself with the statutory amount of compensation as a remedy for her lost consortium. The widow falls outside the “patient” category, but her compensation is still capped because she is entitled to it as a victim of medical malpractice. By the same token, the child in Simpson v. Roberts had never been a patient of the negligent obstetrician, but she became a victim of his malpractice upon her birth.
After thwarting the child’s attempt to bypass the cap, the Court delivered some good news for plaintiffs. It reaffirmed a different cap bypass, previously allowed in Bulala v. Boyd, 389 S.E.2d 670, 675-76 (Va. 1990), and known as the effect-based approach to caps. Under Bulala, an ob-gyn’s negligence during prenatal care, labor and delivery that results in the newborn’s injury separately damages the newborn and his mother. As a result, the newborn’s and the mother’s compensatory awards are capped separately, which, of course, increases the total amount of the plaintiffs’ compensation. The father’s emotional distress, on the other hand, is considered wholly derivative of the newborn’s claim and is therefore capped together with that claim.
Not all courts follow the plaintiffs friendly effect-based approach to caps. In Pennsylvania, for example, the Supreme Court has recently adopted a cause-based approach that caps the total amount of all damages inflicted by a single incident of malpractice. For my discussion of this important development, see here. Which of the two approaches is better than the other is difficult to tell. The effect-based approach that took hold in Virginia may well be suitable for that state because its cap limits the victim’s compensation for both economic and noneconomic damages.