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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Presumably due to the long Christmas weekend, the Court of Appeals dropped one published and several published opinion today, rather than Tuesday, the regular release day. The one published opinion, Richard S. Pergolizzi, Jr., M.D. v. Ramona Bowman, is a medical malpractice case with not one, but two issues of first impression. First, can a claim that a physician proceeded without informed consent rest on that physician’s failure to inform the patient that the physician may have misdiagnosed them, rendering other alternative treatments more appropriate? Second, should a factfinder assessing whether a failure to obtain informed consent was the proximate cause of later injuries ask whether the particular patient, or a reasonable patient, would have gone forward with the procedure anyway?

The Court of Appeals, Judge Lorish joined by Judges Huff and Raphael, concludes that a negligence theory based on a physician’s failure to obtain informed consent must be constrained by the diagnosis that physician actually made. As a result, the trial court erred by

allowing Bowman to proceed on an informed consent claim based (in part) on Dr. Pergolizzi’s

failure to inform Bowman about alternative treatments that would have been appropriate had he reached a different diagnosis. The Court further holds that a factfinder determines whether the plaintiff herself—not an objective “reasonable person”—would have elected alternative treatment after receiving adequate information from the physician.

In 2017 Bowman began suffering sever pain on the left side of her head. Her primary care physician referred her for a CT scan, which revealed a subarachnoid hemorrhage. Bowman was hospitalized for three days then referred to a nuerologist who referred her to Dr. Pergolizzi.

Dr. Pergolizzi order additional tests that resulted in the discovery of a left middle cerebral artery aneurysm, which he believed was the underlying cause of the subarachnoid hemorrhage. He also recognized that the aneurysm was of an irregular shape. In consulting with Bowman, however, he did not advise her that the aneurysm was the cause of the hemorrhage nor did he express concern about its irregularity, even though these elements of the diagnosis were relevant to his recommendation that immediate surgical intervention rather than taking a wait and see monitoring approach.

Before the surgery, Bowman's symptoms worsened. A CT scan, however, showed no change in the aneurysm. During the surgery, Bowman suffered a hemorrhagic stroke, resulting in permanent impairment.

At trial, Bowman's expert testified that Dr. Pergolizzi misdiagnosed the aneurysm as the cause of the hemorrhage and, as a result of that misdiagnosis improperly recommended surgery rather than recommending monitoring. Additionally, there was evidence that Dr. Pergolizzi was negligent in the manner in which he performed the surgery. The experts testified that there were other possible causes of the hemorrhage which should have been considered and which would have contraindicated the surgery if the aneurysm was not the cause.

The jury was instructed that it could consider Dr. Pergolizzi's failure to advise Bowman that he may have misdiagnosed the cause of the hemorrhage and, thus, the need to surgically address the aneurysm, as a basis for finding lack of informed consent. The jury was also instructed that informed consent was to be judged under a subjective standard of the specific patient when determining whether a fully informed patient would have elected to proceed with the same course of treatment, not, as Dr. Pergolizzi urged, under a "resonable person" objective standard. The jury returned a verdict for Bowman, awarding her $3,000,000, which the circuit court reduced to the applicable med mal cap.

As already indicated, the Court of Appeals found error in the first of the two instructions to the jury. In doing so, the Court adopted what it said is the majority view that a physician is not required to advise a patient of the potential for misdiagnosis as part of the information imparted to obtain informed consent. Rather, the Court concludes that the misdiagnosis is a separate claim for negligence, not a contributing factor in determining informed consent. The Court further noted that the only contrary decision was subsequently legislatively overruled. Although the error was not harmless, the Court affirmatively stated that Bowman could (and undoubtedly will) raise a separate misdiagnosis claim on remand.

On the issue of the subjective v. objective standard for determining whether a patient, if properly informed of an alternative treatment, would have opted to proceed with the recommended treatment, the Court sided with Bowman, finding that "the subjective approach better fits the basic principles of Virginia tort law." Thus, on remand, this standard will again be applied to Bowman's presumed claim of misdiagnosis.

I suspect that the result on remand the jury is likely to again return a verdict for Bowman. This supposition should weight against any decision by Bowman's counsel to seek an appeal in the Supreme Court, even though the issue is plainly novel and probably would be granted a review. Whether Dr. Pergolizzi will appeal the unfavorable aspects of the decision is another matter. My guess is that his med mal carrier will seek a writ if for no other reason than to extend the proceedings (not in an improper sense of deliberate delay, although this is an added benefit of doing so), and if so, then Bowman will likely assign cross-error.

Santa made an early delivery to two sets of appellate litigants today, with two reversals and one affirmance. Wait, what? Two opinions but three results? Has Santa forgotten how to count? No, Santa has his math right, because one opinion involved cross appeals.

Let's start with the mixed bag result in Mintbrook Developers, LLC., v. Groundscapes, LLC and Forest Gold, LLC and its cross-appeal. The issue in the trial court was which of the two developers were responsible for the cost of certain improvements to Route 28 in Fauquier County as part of proffers to the Department of Transportation. The circuit court found that it was Mintbrook's responsibility, but refused to award attorney's fees to Forest Gold and its principals, the Lims (Groundscapes, which performed the work, did not appear in the appeal). Mintbrook gets the lump of coal, as the Court of Appeals, Judge Raphael joined by Judges Athey and Chaney, agree that it has to pay for the improvements, while Forest Gold gets the Christmas wish of attorney's fees.

Before delving into the specifics of the law, we pause to make a plea to the appellate courts of Virginia to join the 21st century and start providing graphics with their opinions, especially those involving land issue. In the past, adding graphics, whether they be photographs, plats, or reproductions of documents, was a tedious process that required the court to attach originals to the opinion and the printer to produce plates of the images to include in the typeset volumes. Today, however, and for quite some while now, word processing software makes the inclusion of such demonstrative exhibits relatively easy. The insertion of a plat or map showing the subject properties, which almost certainly was part of the record, would have been far more useful than the description provided in the first paragraphs of the Court's opinion. Since your humble correspondent considers himself to be a thoroughly modern man, let me save you the trouble of trying to envision the property at issue by providing an annotated map:

Forest Gold owns the property along Catlett Road (Route 28) and Mintbrook owns the property on the opposite side of Grace Road. While the map showed that Lafayette Ave now connects Graces and Route 28, it did not do so in 2014, when Forrest Gold sought a rezoning of the property. Making would benefit both parcels and Mintbrook "proposed that, if the Lims dedicated the road parcel, Mintbrook would extend Lafayette Avenue to Route 28." Unfortunately, the parties didn't specify what exactly was to be done. Forest Gold contracted Groundscapes to perform the work for just north of $400,000, but when it came time to pay, Mintbrook objected, stating the the work exceeded the scope of agreement, leading to the three-way suit by Groundscapes against Forest Gold with a third-party complaint against Mintbrook.

Now you already know that Mintbrook wound up on losing end of the suit as to liability under the development agreement. But what about the attorneys' fees? Well, there was an indemnification clause in the agreement, the circuit court ruled that Forest had not plead the application of the clause in its third-party complaint to include attorneys' fees for enforcing the agreement. Acknowledging that it was a "technicality," the court denied the request for attorneys fees.

The Court of Appeals first addressed the issue of whether Mintbrook was liable for the cost of the road improvements under the development agreement. Unsurprisingly, the Court finds that Mintbrook very clearly undertook to pay for the improvements. Like the circuit court, the Court of Appeals found the agreement to be unambiguous and declined to look at a prior draft of the agreement which Mintbrook maintained would show that the parties had a more limited understanding of the scope of the work. This pretty straightforward contact interpretation law -- the final agreement is what controls.

Before moving on the the attorneys' fees issue, let us pause to give kudos to Judge Raphael, for his use of the word "romanette" to correctly describe the the use of a minuscule Roman numeral to show a sectional division of a contract or statute. Apropos of the above discussion of the advancement from typesetting to word process, "romanette" is a typesetters term which was adopted into the law of drafting contracts and statutes. Because the use of word by the Court often results in its adoption by advocates, I suspect that we shall see more briefs directing the Court's attention to a particular "romanette" of the contract or statute at issue.

The Court of Appeals finds that the circuit court's "technicality" was a bit too technical. While it is true that Forest Gold did not site the specific clause of the agreement that provided for attorneys' fees for the prevailing party in a dispute, the agreement was made part of the record and the third-party complaint stated, “Mintbrook’s contract with the Lims expressly provides that it will hold them harmless and indemnify them from claims such as the one now being asserted by Groundscapes.” While acknowledging that it was a "close question," the Court notes that there were three possibilities for the claim for attorneys' fess when viewed in isolation: a boilerplate claim, a claim based on indemnification, or a claim based on common law relating to the availability of attorneys' fees in third-party actions.

So what took this case from the realm of a "close question" to one in which the circuit court erred? It was the "commendable candor" of Mintbrook's counsel, who at oral argument stated "hat he knew that Forest Gold and the Lims “were seeking attorney’s fees because . . . in the motion craving oyer the contract was produced and the contract is the basis for attorney’s fees . . . . I was aware of that from the beginning.” This was apparently also stated, if perhaps more obliquely, in Mintbrook's opening brief, so counsel's candor was likely the result of having anticipated the the question and recognizing that his ethos with Court would be damaged by attempting to back peddle. The case is remanded to the circuit court for a determination of the attorneys' fees award.

The other party to be on the Court's Nice List today is the appellant in Jill Ruderman v. Kathy Pritchard. The reversal is remarkable when you learn that it comes from a jury verdict confirmed by the trial court, "the most favorable position known to law" as the appellate courts frequently remind us. The result in Ruderman's favor is even more remarkable when you learn that her counsel waived oral argument, submitting on brief.

Now waiving oral argument is either a sign of extreme confidence in your written argument or a belief that the argument is so weak that presenting oral argument would be a pointless endeavor and merely damage your ethos with the Court. The latter applies typically to criminal case where appointed counsel cannot credibly file an Anders brief because the appeal is not wholly frivolous but where the law regarding the issue(s) to be raised is so heavily against reversal that oral argument would be decidedly uncomfortable for all involved -- "Yes, your honor, I would agree that the jury probably did credit the testimony of the Commonwealth's witnesses and the videotape showing my client entering the bank with a shotgun, but was that really enough to convict him of attempt robbery . . . he never actually demanded any money." "Yes, counsel, but that was because as he shouted 'Nobody move! This is a stick up!' he slipped and hit his head on the tellers' counter knocking himself unconscious."

So what exactly was this issue that Ruderman's counsel felt did not require his attendance before a panel consisting of Chief Judge Decker, who writes today's opinion, and Judges AtLee and Malveaux? Cats. Specifically Cornish Rex cats. And as I am advocating the use of demonstrative exhibits, here is a typical member of the breed

Pritchard breeds Cornish Rexes and Ruderman provided veterinarian services to the kitties. A "dispute arose between them over several of the cats and their offspring," and Prtichard filed a warrant in detinue in the general district court for return of 11 cats or their monetary value. The court found for Pritchard and ordered the return of some of the cats and payment for the others in the amount of $24,100.

As I am want to do, I shall pause here for two purposes. First, if you are not familiar with a detinue action, this is a claim that someone has property that rightfully belongs to you and you a) want it back, or b) want its monetary value. Technically, you don't have to accept the cash, but if you plead it and the court awards it, you can't complain. Second purpose: The opinion does not specify how many cats were returned, thus we cannot determine the "price per cat" that the $24,100 represents -- but it is obviously more than $2190 purr . . . sorry, per . . . cat, given that there were 11 in all and $24,100/11 is $2,190. I am not going to debate the merits of having a pedigreed Cornish Rex or any other specific breed of companion animal, but I will observe that is what you want is a companion animal, your local shelter can provide you with one for far less that $2,190.

Now, the case takes an interesting turn because Pritchard appealed the decision to the circuit court. Pritchard, you will recall if you look above the digression of the previous paragraph won in the district court. Even more interesting is that Pritchard sought to amend her complaint to add additional kittens, littered while the appeal was pending, and to add claims for breach of contract, conversion, declaratory judgment, and permanent injunctive relief. The addition of the litters of new kittens (the entire group of felines being a clowder, a glaring, or, my personal favorite, a pounce of cats -- pride applies to wildcats, not domesticated), naturally increased the compensatory damages to which Pritchard added punitive damages and a claim for attorneys' fees.

Ruderman objected to the amendment, asserting that it exceed the amount that would have been available under the warrant in detinue, which is limited to $25,000 in the general district court. The circuit court overruled the objection, permitted the amendment, and the case proceed to a trial before a jury. The jury awarded Pritchard possession of all the cats and damages of $9,134.67.

Ruderman appealed the circuit court's permitting the amended pleading and the increase of the damages. Now some of you may be aware that the jurisdictional limit of the general district court is not controlling in an appeal to the circuit where a party seeks to amend the ad damnum under Code § 16.1-114.1. However, the Court points out that the statute's provisions concerning an increase in the ad damnum applies to appeal brought by a defendant. As noted above, it was Ruderman, the plaintiff, who appeal. Those in the know recognize this as the Afify rule, named after the Supreme Court of Virginia decision that held the limit on increasing damage claims on removal to the circuit court by a defendant -- the removal statute was subsequently ameded to allow increases in damages on removal by the defendant. The Court of Appeals today holds that the reasoning in Afify applied to appeals by a plaintiff.

Now there is an interesting bit of dictum in the opinion, which notes that under a different statutory provision an ad damnum can be increased above the amount in controversy jurisdiction of the general district court if additional damages accrue while the case is pending in the district court. However, Pritchard did not make her amendment in the district court -- indeed she alleged that the additional kittens were littered while the appeal to the circuit court was pending -- so that provision does not aid her.

Now comes the interesting part of the appeal. "What?" I hear you say, "We're only now getting to the interesting part of the appeal?" Well, let's say an equally interesting part of the appeal. The jury's award of the return of the property is in accord with the relief available under detinue -- and the value of the property returned is irrelevant to the jurisdiction issue because in detinue you can demand the return of the property without setting a dollar value on it. In theory, the district court could entertain a detinue action for the return of a mint condition 1966 Corvette (typical price $110,000 and up) if the party was unwilling to accept cash value or to accept no more than $25,000.

The jury's cash award was likewise below the $25,000 jurisdictional limit, so why is there a problem? The problem is in that word "jurisdictional." Because the appeal was limited to the jurisdictional limit for the monetary damages, when the circuit court permitted the amendment to include damages about that amount, the circuit court deprived itself of jurisdiction over the appeal. Once the court lost subject matter jurisdiction everything that happened was void (not merely voidable), so the jury's verdict, which would have been proper on the appeal of the district court judgment without the amendment was a nullity. The case is remanded for a new trial on the appeal as it was brought without the amended complaint. Pritchard can presumably file a separate complaint for additional litters (and any liters of the liters) and have the matters consolidated for trial . . . which in hindsight would have been the proper way to have proceeded.

Happy Holidays to All the Virginia Appellate Attorney's Court of Appeals Blawg

Yes, I know that the 12 days of Christmas are between Christmas and Epiphany, but why not celebrate the 12 days before as well. Alas, the two appellants in today's published opinions have naught to celebrate.

William Gary Shahan v. Commonwealth of Virginia arises from convictions for first-degree murder, robbery and associated firearms offenses. Shahan appeals the convictions on two grounds, the first of which is the more interesting as the second is a sufficiency argument that is destined to fail as almost all such arguments are. The first issue, however, is something you don't see very often -- Shahan wanted to present evidence of the civil suit he filed against the Norfolk Police Department alleging that claims for defamation, false imprisonment, and intentional infliction of emotional distress against two police detectives who had arrested, detained and interrogated him with respect to the crimes for which he was facing trial. He offered the very creative argument that evidence of the suit was relevant to prove his innocence because if Shahan were guilty, he likely would not have been “willing to be the face of a lawsuit” against the police. The circuit court responded that one “can file a civil suit fraudulently, in bad faith, knowing full well that he’s guilty of the offense.”

The victim, Clifford Duty, had been in the illegal marijuana trade since 1999. Sometime in late January 2018, he was shot and killed in his apartment, where the body was not discovered for several days. Cellphone records showed that Shahan was in the vicinity of Duty's apartment during the period in which the murder would have occurred, and Duty had placed a call to Shahan around that time. A forensic review of Shahan's phone showed that records of both call and test messages had been deleted for a length period of time which police theorized corresponded with his contacts with Duty. Cellphone record also showed that Shahan and Duty's phones were in the same location away from Duty's apartment during the period after he was likely murdered until Duty's cellphone lost power.

Financial records showed that Shahan was virtually broke just prior to the murder, but deposited $1000 in cash into his bank account shortly afterwards. Shehan's father owned a handgun of the same caliber as the weapon used to kill Duty, and reported it missing several days after the killing.

When first interviewed by police, Shahan admitted having met with Duty sometime close to when the murder occurred, but denied have killed or robbed him. Shahan had been a regular customer of Duty for nearly a decade, often purchasing marijuana from him, which Shahan then resold. He claimed that the money he deposited in the bank was from side work as a tattoo artist and from selling marijuana. He offered no explanation for why he was apparently in possession of Duty's cellphone after Duty was killed.

The case was entirely circumstantial, however a jury can convict on circumstantial evidence and did so in this case. The conviction occurred on June 11, 2021, and Shahan nonsuited the the civil action against the police on August 5, 2021, though this fact was unknown to the Court of Appeals. Shahan recevied a total sentence of 43 years.

The Court of Appeal first addresses the assertion that a defendant who files a civil action against the police for his treatment by them during the investigation of the offenses for which is then being tried. Examination of the Court record showed that Shahan filed this action in December of 2018, about three months before he was indicted, and he alleged that this sowed "investigatory bias." He also asserted, as he did in the trial court, that a guilty person wouldn't bring a civil action for false arrest because it would subject the defendant to civil discovery.

The Court, Judge Humphreys joined by Judges Athey and Callins, found that "[t]he fact that Shahan filed a civil suit against the police investigators proves only that; it does not tend to prove or disprove who committed the crimes Shahan was charged with." Even the inference that an innocent person would not file such an action would be "too attenuated" to permit the jury to find that the evidence tended to prove Shahan was not guilty.

As to the sufficiency of the evidence, the Court held that while circumstantial, the jury could infer that Duty would not have voluntarily surrendered his cellphone and that the totality of the evidence was sufficient to show that Shahan was the criminal actor in Duty's murder.

Arastoo Yazdani v. Soraya Sazegar is a domestic relations case, but its all about the awarding of attorney fees. The unhappy couple met through an online dating service and while the wife was visiting the US on a two-week tourist visa, and after a whirlwind romance, married in November 2018. The wife subsequently discovered that her not-so-loving hubby was contacting other women on the same dating site where they had meet. The ensuing divorce was messy, but no more than usual, and the parties eventually agreed on a settlement of all matters except an award of attorney's fees. The circuit court awarded $33,948.64 to the wife.

Now an award of attorney's fees is committed to the sound discretion of the trial court and rarely warrants a published opinion. However, Judge Lorish, joined by Judges Huff and Raphael, apparently though this case had some value because the wife alleged that husband waived his right to appeal the case as part of the settlement. The Court finds that the issue was not waived because the language of the settlement agreement was not express with respect to the waiver of attorney's fees, which were "reserved" for the court. Thus, while issues that were not reserved their presumably was a waiver, but not resolving the fees issue, the agreement was not a waiver for that issue (or, one assumes, any other issues decided by the court not covered in the agreement).

The Court then found that award of fees to be reasonable under the circumstances and that a second issue raised for the first time on appeal was waived. The case was remanded to the circuit court for an award of fees incurred on appeal.

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