Virginia: Medical Malpractice – a Lawyer’s Scope

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On November 1, 2018, the Virginia Supreme Court issued Parker v. Carilion Clinic, No. 170132. It delineated pleading presumptions, requirements, and limitations for vicarious liability, direct liability, and negligence per se of the medical malpractice defendant hospital.

Parker held the corporate defendant admitting plaintiff’s allegation that the individual defendants were its “employees” created a rebuttable presumption of vicarious liability at both the pleading and trial stages. Id. at 9-10. However, Parker emphasized that the active “job-related-service” principle limited Virginia respondeat superior liability, i.e., that the employee must commit the tort while actively engaged in “performing a normal function” of his assigned job, while “within the scope of the duties of the employment and in the execution of the service for which the employee was engaged”. Id. at 10-15 (italics original).

Parker held further that the employee’s motive is a “factor to be considered” in determining “scope of employment:” generally Virginia respondeat superior liability also does not extend to unauthored tort arising “wholly from some external, independent, and personal motive on the part of the employee to do the act on his own account”; id. at 16; it must be “actuated, at least in part, by a purpose to serve the master.” Id. at 16-17 (italics original). “Unless the deviation from the employer’s business is slight on the one hand, or marked and unusual on the other, but falls instead between those two extremes, the question is for the jury”. Id. at 17.

Parker held that summary allegation the torts were committed in the context of employment created the rebuttable presumption, where supporting facts were “not specifically pleaded”. Id. at 17-18. “At the demurrer stage of a case, however, the self-refutation [of the presumption] must be clear, not conjectural, and irrefutable rather than debatable.” Id. at 18.

Parker upheld the demurrer to corporate direct liability because the complaint failed to allege the “requisite corporate authority”. “A corporate defendant may be liable as a primary tortfeasor (independent of respondeat superior liability) if it authorized, directed, ratified, or performed the tortious conduct through those who, under the governing management structure, had the discretionary authority to act on behalf of the corporation.” Id. at 20. “Those whose conduct creates direct corporate liability include corporate officers [and directors], those who have authority to employ, direct, and discharge servants of the master, those engaged in the performance of nondelegable or absolute duties of the master, and those to whom a corporation has confided the management of the whole or a department or division of its business.” Id. at 21.

Parker also upheld the demurrer to defendant’s violation of federal statute allegedly constituting negligence per se. “[V]iolation of a statute does not, by that very fact itself, constitute actionable negligence or make the party guilty of negligence per se,” i.e., “a statute may define the standard of care to be exercised where there is an underlying common-law duty, but the doctrine of negligence per se does not create a cause of action where none otherwise exists”. Id. at 22 (emphasis original).

“Pragmatically speaking, the effect of the doctrine of ‘negligence per se’ . . . is that it establishes the second element of common-law negligence – breach of duty – by reference to a statutory standard rather than the common-law ‘ordinary prudent person’ standard.” Id. at 23. “When a statute creates a duty of care and sets the standard by which a breach is measured, the statute no longer gives rise to a negligence per se claim but rather creates a right of action,” i.e., a “statutory civil action”. Id. at 23 n.13 (italics original).