Virginia: Medical Malpractice – a Lawyer’s TORCH

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By 8-page opinion letter of first impression dated June 5, 2017, Fairfax County Circuit Court denied Defendants’ Pleas in Bar in the wrongful death case of Hahn v. Felluca, No. CL-2016-0007057, under Va. Code §8.01-581.18:1, the so-called laboratory test immunity statute of the Virginia Medical Malpractice Act. As predicate, the judge conducted an evidentiary hearing, at which three Defendant physicians claiming medical malpractice immunity and one non-party hospital clinical director testified ore tenus, id. at 2-5; and at which standard of care expert testimony was not relevant or permitted. Id. at 5.

Hahn held that the following third exception to statuary immunity was applicable: “(iii) the physician has reason to know that in order to manage the specific mental or physical condition of the patient, review of or action on the pending result in needed” Id at 6. As the first Virginia court to interpret §8.01-581.18:1 (after it was cleaved and revised from predecessor §8.01-581.18 in 2006), Hahn looked to analogous Virginia Supreme Court precedent discussing the legal touchstone phrase “reason to know” (distinct from “should know”), and observed “this Court’s interpretation of ‘reason to know’ must be based on an actual finding”. Id. at 6-7.

Hence in Hahn, “the Court makes the factual determination [Defendant] had reason to know of pending TORCH panel [of the mother, which Defendant needed to manage the condition of the newborn]”. Id at 7. Notably, Hahn held that Defendants bore the burden of proving that the exceptions to the statuary immunity claimed did not apply, id; consistent with the proponent of privilege bearing the burden of proving claimed privileged in general, and with §8.01-581.18:1 in particular being construed strictly for being in derogation of common law.

Since the third immunity exception was dispositive, as a matter of judicial economy, Hahn did not address the remaining 4 points of immunity limitation raised by plaintiff under sub parts a-d. Id at 8. Defendants were represented by HDJN.