Virginia: Medical Malpractice – a Lawyer’s Agency

Virginia: Medical Malpractice – a Lawyer’s Agency

On March 28, 2014, Plaintiffs filed Memorandum is Support of Agency in Gibbons v. Riverside Medical Group, et al., No. CL10-2326T01 in Newport News Circuit Court. Defendant obstetricians, Dr. James M. Mullins, III and Dr. Glenna Henderson, oppose Plaintiffs having served them lawsuit process through their respective office assistants, whom Plaintiffs believe are their agents.

At hearing on February 26, 2014, it was suggested that there could not be any agency without a writing. The Court granted the parties leave to brief the issue.

In fact, under Virginia law there can be agency without a writing. A leading case is Acordia of Virginia Ins. Agency, Inc. v. Genito Glenn, L.P., 263 Va. 377 (2002), though Plaintiff adduces other authority on point too.

“We have defined the term ‘agency’ as ‘a fiduciary relationship resulting from one person’s manifestation of consent to another that the other shall act on his behalf and subject to his control, and the other person’s manifestation of consent so to act.” Id. at 384, “While the power of control is an important factor to consider in determining whether an agency relationship exists, see Reistroffer, 247 Va. at 48, 439 S.E.2d at 378…; ‘agency may be inferred from the conduct of the parties and from the surrounding facts and circumstances’. Drake v. Livesay, 231 Va. 117, 121, 341 S.E.2d 186, 189 (1986)(citing Royal Indem. Co. v. Hook, 155 Va. 956, 970, 157 S.E. 414, 419 (1931).” Id. (emphasis added).

Whether an agency relationship exists is a question to be resolved by the fact finder unless the existence of the relationship is shown by undisputed facts or by unambiguous written documents.” Id. (emphasis added). “[D]irect evidence [of right to control] is not indispensable – indeed frequently is not available – but instead circumstances may be relied on, such as the relation of the parties to each other and their conduct with reference to the subject matter”. Id. at 385 (emphasis added).

Acordia quoted and discussed at length Bloxom v. Rose, 151 Va. 590 (1928). 263 Va. at 385-386. Bloxom is a treasure trove re evidence of agency:

It is impossible to lay down any inflexible rule by which it can be determined what evidence shall be sufficient to establish agency in any given case. That is a question which must be determined in view of the facts in each particular case. Whatever form of proof is relied upon, however, must have a tendency to prove agency, and must be sufficient to establish it by a preponderance of the evidence. It may be said in general terms, however, that whatever evidence has a tendency to prove the agency is admissible, even though it be not full and satisfactory, as it is the province of the jury to pass upon it. So if evidence has just been introduced tending to prove the agency, or to make out a prima facie case thereof, the admissions and declarations of the alleged agent, if otherwise competent, may then by shown, and the whole case be passes upon by jury.

151 Va. at 595-596 (emphasis added). Id. at 598-599.

Bloxom continues that “it has long been well-settled that when evidence has been introduced tending to prove alleged agency,…the declarations of the alleged agent then become admissible in corroboration; and the order in which such proof is introduced is within the discretion of the trial court.” Id. at 599-600 (emphasis added). Notably, even though both the principal and the agent denied agency and were the only witnesses to testify in Bloxom, the Virginia Supreme Court upheld that the jury disregarding their self-serving testimony and instead relying on a “ledger sheet” indicating agency. Id. at 599-602. Cf., Hayward v. Holiday Inns, Inc., 459 F. Supp. 634 (E.D. Va. 1978)(Virginia law)(manuals as agency evidence).

Bloxom also indicated that the principal placing his agent in control of his operation was evidence of agency, “certainly with respect to third persons who had no knowledge of facts calculated to put them on notice to the contrary”. 151 Va. at 600 (emphasis added). In the matter sub judice, both doctor principals placed their respective agent assistants in control of their front desks to deal with third persons.

In Whitfield v. Whittaker Mem’l Hosp., 210 Va. 176, 182 (1969), the Virginia Supreme Court addressed the “[‘first impression’] question of whether a nurse-anesthetist employed by a hospital is an agent of the surgeon when administering an anesthetic”. Whittaker answered that “there was evidence from which the jury could determine that [the hospital’s nurse-anesthetist] was the temporary agent of Dr. Reid,” id. (emphasis added); reversed the Newport News Circuit Court; and remanded for new trial against Dr. Reid. Id. at 184.

Service through a claimed agent of the principal recently has been upheld in New York. E.g., Dunn v. Pallett, 889 N.Y.S. 2d 682, 2009 N.Y. Slip. Op. 07545, 66 A.D.3d 1179 (N.Y. App. 2009). Dunn is good, fair law for Virginia.

In Acordia in 2002, the Virginia Supreme Court twice cited Drake. 263 Va. at 384. In Drake it concluded: Plaintiff “has properly alleged agency and is entitled to prove it if he can”. 231 Va. at 121 (emphasis added).