Where an elderly patient died after contracting COVID-19 in defendant hospital’s senior care facility, her estate’s claim is a medical malpractice case. Defendant’s motion to dismiss for lack of expert certification is granted.
Goodwin, an 81-year-old woman, was a patient at the Orchard, a senior care facility owned by defendant Patrick Henry Hospital. Elisha was an Orchard employee [referred to as HCP] “and is alleged to be the index case of COVID-19 for the Orchard.”
The complaint alleges that Elisha reported to her supervisor, Banker, that she had a cough and requested sick leave. Banker asked Elisha if she was running a fever. Plaintiff states that when Elisha replied she was not, Banker ordered her to come to work, told her not to wear a mask and “sent [Elisha] ‘directly to patient care with patients, including Ms. Goodwin.’ …
“Furthermore, Plaintiff alleges that Ms. Banker ordered HCP ‘who had direct patient contact with Orchard residents not to wear masks when in contact with the residents,’ … contrary to the Orchard’s knowledge of best practices at the time[.]”
The complaint states that between April 6 and April 10, 2020, Elisha came into direct contact with Goodwin several times without a mask. Goodwin began displaying COVID-19 symptoms several days later. On April 23, she tested positive for COVID-19. She was placed in an intensive care unit and died on May 2.
Goodwin’s estate sued. Defendant’s motion to dis miss for lack of expert certification is before the court.
“Defendant argues that this case is a medical malpractice case, subject to Virginia’s Medical Malpractice Act. Furthermore, Defendant argues Plaintiff’s Complaint should be dismissed due to Plaintiff’s failure to obtain an expert certification pursuant to Virginia Code §§ 8.01-20.1 and 8.01-50.1.
“On the other hand, Plaintiff argues that this case is not a medical malpractice case and does not need expert certification pursuant to Virginia Code §§ 8.01-20.1 and 8.01-50.1 to proceed. The Court agrees with Defendant. …
“Elisha, in her role as an HCP and in furtherance of medical treatment, came into contact with Ms. Goodwin. This situation is the exact situation the Virginia Medical Malpractice Act addresses.
“In support of his argument against the requirements of the Virginia Medical Malpractice Act, Plaintiff alleges sexual assault as an analogous situation to the present case, citing Alcoy v. Valley Nursing Home, Inc., 272 Va. 37, 630 S.E.2d 301 (2006).
“Plaintiff presents the transfer of the virus as an assault on the patient. However, this analogy must fail. As the Supreme Court stated in Alcoy, sexual assault on a nursing home patient is not in furtherance of health care or professional services rendered. … Here, on the other hand, Elisha was working as an HCP, attending to ‘patient care with patients, including Ms. Goodwin.’ …
“The Court believes a closer analogous situation would be if a surgeon entered an operating room, following hospital policy for sterilization, and a patient contacted a virus or infection while the surgeon was operating. The surgeon would have been performing professional services within the scope of his or her employment, and malpractice could be alleged.
“Similarly, Elisha in her role as an HCP and in furtherance of medical treatment came into contact with Ms. Goodwin. Therefore, this case is a medical malpractice case, subject to the Virginia Medical Malpractice Act.”
Webb v. Patrick Henry Hospital, Case No. CL 2019-0016141, March 31, 2021, Newport News Cir. Ct. (Mills) (Opinion and Order) VLW 021-8-050, 6 pp.