Virginia: Medical Malpractice – a Lawyer’s Survival

Virginia: Medical Malpractice – a Lawyer’s Survival

On April 16, 2015, the Virginia Supreme Court issued Wagoner v. Commonwealth, No. 140890. This criminal appeal opinion addresses “loss of substantial possibility of survival” in medical malpractice cases of wrongful death. Id. at 7-8, 11-14, and 18.

Wagoner affirmed a split Virginia Court of Appeals, upholding a criminal conviction for felony “abuse or neglect of an incapacitated adult resulting in death”. Id. at 16 (citing Wagoner v. Commonwealth, 63 Va. App. 229 (2014)). The Virginia Supreme Court noted that the Commonwealth’s Assistant Chief Medical Examiner opined the victim had a “25% chance of survival,” Id. at 6; but the Virginia Court of Appeals recounted that the expert’s testimony was the victim had only a 13%-25% chance of survival. 63 Va. App. at 242.

At trial and on appeal in Wagoner, Defendant argued unsuccessfully that the proponent “must prove a probability of survival”. No. 140890 at 18 n.2 (emphasis in original). The Virginia Supreme Court in Wagoner reaffirmed that “loss of a substantial possibility of survival may be evidence of proximate cause in a medical malpractice case”. Id. at 12 and n.3 (emphasis added).

Wagoner clarifies the relationship of “proximate cause” and “loss of a substantial possibility of survival” in medical malpractice cases of wrongful death. “A proximate cause is an act or omission,” id. at 12; i.e., the “defendant physician’s actions or omissions”. Id. at 13 n.4.

“The loss of a substantial possibility of survival, on the other hand, is neither an act nor an omission; it is the result of an act or omission,” delineated Wagoner. Id. at 12 (emphasis added). “In other words, the loss of a substantial possibility of survival is evidence that could support a finding of causation for the ‘event’,” id., i.e., wrongful death.

That is to say, per Wagoner, event/death in the context of a medical malpractice case equates to and legally is defined as only loss of “any substantial possibility of survival” under Blondel v. Hays, 241 Va. 467, 472 (1991)(emphasis added). That any “substantial possibility” does not mean “probability,” i.e., means less than 51%.

Under Wagoner-Blondel, Plaintiff simply has to prove by a preponderance that the Defendant physician’s act or omission was a [one] cause of the patient losing a substantial possibility of survival. Stated another way, under Wagoner-Blondel, Plaintiff only has to prove that the physician probably caused loss of, i.e., destroyed, “any substantial possibility of survival” – NOT that the patient had a 51% probability of survival.

Further, at trial, actual statistical percentages opined by Plaintiff and Defendant experts are inadmissible in evidence. Therefore, the jury decides just based on conflicting expert opinion about “substantial possibility of survival” in general.