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Court Sets Aside $3.5M Med-Mal Award

Deborah Elkins//April 25, 2011

Court Sets Aside $3.5M Med-Mal Award

Deborah Elkins//April 25, 2011//

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A Portsmouth Circuit Court sets aside a $3.5 million med-mal award because the verdict form showed the jury did not find the doctor liable, but found the doctor’s practice group liable, and there was no evidence that the practice group was independently liable for alleged failure to communicate a diagnosis of pneumonia to decedent.

The primary issue is whether the verdict against the corporate defendant, Bermisa & Bermisa, is permissible as a matter of law even though the jury found the employee defendant, Dr. Bermisa, not liable to plaintiff. The issue is whether a verdict exonerating an employee of tort liability also exonerates the employer when the two are sued together and the jury finds the employer liable based solely upon the doctrine of respondeat superior. The Supreme Court of Virginia has addressed this question on several occasions.

The case most directly on point is Roughton Pontiac Corp. v. Alston, 236 Va. 152 (1988). Roughton is directly applicable to the case presently before the court. Here, the jury returned a verdict against the employer, Bermisa & Bermisa, but did not return a verdict against the employee, Dr. Bermisa. Similarly, the only theory of liability as to the practice group presented in the complaint and from the evidence at trial is under the doctrine of respondeat superior. There were absolutely no allegations that the medical practice was independently liable to plaintiff.

The only difference between Roughton and the present case is that the jury in Roughton specifically and affirmatively found the employee not guilty, whereas in this case the jury remained silent as to the employee’s liability by not marking the verdict form for Dr. Bermisa.

The lesson from Wintergreen Partners Inc. v. McGuireWoods LLP, 280 Va. 374 (2010), a case cited by both parties, is that the court may look not only at the evidence presented at trial, but also at the jury instructions to determine whether there are other theories beyond respondeat superior on which the jury could have found the employer liable while exonerating the employees.

After a thorough review of the jury instructions here, the court finds that no other theory besides respondeat superior liability is available in this case to hold Bermisa & Bermisa liable.

The court grants defendant’s motion to set aside the verdict and orders that this matter be set aside for a new trial.

Westermann, Adm’x v. Bermisa (Morrison) No. CL 07-2310, March 14, 2011; Portsmouth Cir.Ct.; Philip J. Geib for plaintiff; Carolyn P. Oast for defendant. VLW 011-8-072, 5 pp.

VLW 011-8-072

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