Scope of causation limited, doctors get to keep trial win

Telling a jury that doctors are responsible for all the consequences of their negligence, foreseen or not, is a misstatement of Virginia law, the Supreme Court of Virginia has found.

Even though it comes in an unpublished order, the high court’s ruling could block expansion of the causation standard toward strict liability, according to a lawyer for defendant doctors.

The justices upheld a jury verdict for those doctors in the Newport News case of Williams v. Swenson (VLW 018-6-028).

The court’s decision also carries a warning against lawyers’ use of “continuing objections” which may prove ineffective in preserving points for appeal.

Patient left with paralysis

The lawsuit arose from hip surgery on a heavyset patient who ended up with paralysis due to spinal nerve root damage during the procedure. The patient was left unable to walk or have “meaningful movement,” according to the court’s decision.

The nerve root injury was deemed unforeseen. “Regardless of their theories of causation, numerous experts testified that paralysis was an exceedingly rare complication of the procedure,” the court said.

The patient also suffered progressive kidney failure, a foreseeable injury.

Patient Jordan Williams sued a group of orthopedists and a group of hospitalists. The orthopedists were involved with the surgery. The hospitalists were called in a day later for signs of renal failure.

The orthopedists argued nerve root damage was an unforeseen consequence of compression during the surgery due to the patient’s obesity and did not signal a breach of the standard of care. The hospitalists argued their post-surgery care for kidney failure and blood pressure also was within the standard of care.

At trial in 2016, Williams’ lawyers wanted to tell the jury that – for each of the defendants –any negligence made the defendant “liable for all the consequences of that negligence, whether foreseen or not.”

Under the proposed jury instruction, “it is sufficient if a reasonably prudent healthcare provider would have foreseen that some injury would result.”

After comparing that language with the 1991 Supreme Court decision in Blondel v. Hays, Judge Timothy S. Fisher refused the instruction. The jury returned a verdict for the doctors.

Inaccurate statement of law

On appeal, the court said much of the argument concerned whether the patient’s evidence and theory of the case supported the proffered instruction. But the justices’ decision turned on the failings of the instruction itself.

“You’re not strictly liable for all damages simply because you’re negligent, whether foreseeable or not,” said Justice D. Arthur Kelsey at oral argument. “That’s just simply not the law. It never has been the law. It’s not in the Model Jury Instructions.”

The language of the court’s written ruling closely tracked that view. The proposed language “became a strict liability instruction and an inaccurate statement of Virginia tort law,” the order read. The instruction was at odds with the proper proximate cause instruction, the court added.

The orthopedists were represented on appeal by J. Jonathan Schraub of McLean, who said the decision reins in the scope of foreseeable injury.

“Plaintiffs do not have a free hand in extending a physician’s liability to ‘all consequences’ of alleged negligence but rather only to those that ‘naturally flow’ (i.e., are ‘proximately caused’) by the alleged breach of the standard of care,” Schraub said.

“This puts a halt to any slow drift toward what would essentially be a strict liability standard if there is a finding of negligence in the performance of health care services,” he added.

Danger of ‘continuing objections’

The case also produced a cautionary note for trial lawyers on any side of a courtroom dispute. Williams’ lawyers – expecting foreseeability arguments in the defendants’ summation – wanted to avoid having to make objections in front of the jury. They asked the judge to recognize their continuing objection to any such arguments. Fisher stated he would allow a continuing objection.

Not good enough, said the Supreme Court.

The original “continuing objection” was not clear as to whether it addressed the standard of care or causation or both, the court said. In closing, the unforeseeable nature of the injury was raised numerous times, not all of which might have constituted impermissible argument, the court’s order read.

“The failure to renew the objection specifying how counsel’s remarks moved outside the scope of permissible argument deprived the trial judge of the opportunity to instruct the jury and avoid an appeal,” the court said.

Afterwards, Williams’ counsel “failed to request relief in the manner of a curative instruction or motion for mistrial…. The Court must consider the objection waived.”

The lesson is that lawyers have to interrupt with objections, defense lawyers agreed.

“It’s pretty clear you’ve got to jump up and object to preserve the objection,” said Ronald P. Herbert of Richmond, who represented the hospitalists. Lawyers may worry about appearing rude, but it’s a necessity, he said.

“You’re always concerned with how the jury’s going to perceive it,” he said. “You’ve got to object. You’ve got to jump up. I hate to do it, but you’ve got to do it,” Herbert said.

Williams, the patient, was represented by lawyers from Gentry Locke in Roanoke. Monica T. Monday argued the appeal. She did not respond to a request for comment as of press time.