22 Jan Virginia: Medical Malpractice – a Lawyer’s Superseding
Medical malpractice Defendants are wont to interpose the alleged intervening negligence of another healthcare provider. To be a causation defense, however, the intervening negligence also prove to be the superseding cause – a rare circumstance.
“In order to relieve a defendant of liability for his negligent act, the negligence intervening between the defendant’s negligent act and the injury must so entirely supersede the operation of defendant’s negligence that it alone, without any contributing negligence by the defendant in the slightest degree, causes the injury.” Dorman v. State Industries, Inc., 292 Va. 111, 123 (2016) (emphasis added); Williams v. Le, 276 Va. 161, 167 (2008)(medical malpractice); Atkinson v. Scheer, 256 Va. 448, 454 (1998)(medical malpractice); Jenkins v. Payne, 251 Va. 122, 128-29 (1996)(medical malpractice). Where “the primary actor is the ‘but for’ cause of an injury, [only] an action that is so highly extraordinary as to be unforeseeable may serve to cut off legal causation”. Dorman, 292 Va. at 122 (emphasis added).
Also, “an intervening cause is not a superseding cause if it was put into operation by the defendant’s wrongful act or omission”. Dorman, 292 Va. at 123, and Williams, 276 Va. at 167 (both citing Jefferson Hosp., Inc. v. Van Lear, 186 Va. 4, 81 (1947)(medical malpractice)). Typically, substandard radiologists are not insulated by subsequent treaters. E.g., Williams (defendant radiology not entitled to intervening superseding cause instruction regarding other healthcare provider conduct); Panousos v. Allen, 245 Va. 60 (1993)(defendant radiologist not entitled to intervening superseding instruction regarding other healthcare provider conduct).