Favorable Decision from the Va. Supreme Court in our case, Simpson v. Dr. Roberts et al

In the Complaint in this birth injury case filed on behalf of the child and the mother, plaintiff asserted that the medical malpractice cap did not apply to the obstetrician who was involved in the prenatal care who performed a procedure called an amniocentesis. The plaintiff filed a Count that she termed a “common law medical malpractice” claim against the obstetrician who performed the amniocentesis only, and not against his partner, the obstetrician who delivered the baby. We filed a demurrer that the trial court sustained early on that no such claim existed under Virginia law and that cap applied to this claim. The case was tried for 14 days in Roanoke City in May 2012 and the jury awarded the plaintiff child $7 million and the mother $2 million. The trial court reduced the verdicts to the remaining amounts under the separate caps that applied to both mother and child of $1.4 million. Plaintiff filed a post-trial motion asking the trial court to change its ruling and find that the cap did not apply in the child’s case against the obstetrician who performed the amniocentesis, and the trial court denied that motion.

 Plaintiff appealed to the Virginia Supreme Court and both sides brought on appellate specialists. Our firm worked on the appeal with Frank Friedman, an appellate specialist at Woods Rogers, and the Medical Society of Virginia filed an amicus brief. In an important opinion for obstetricians and other physicians decided on January 10, 2014, the Supreme Court held that the protection of the cap applies even where the care is provided in utero.

 Justice Lemons wrote the majority opinion while Justice McClanahan wrote a concurring opinion with alternative reasoning, but it was a unanimous decision.

 The key language of Justice Lemons’ opinion is at p. 11 where he states that:

“When Dr. Roberts performed this procedure he was providing health care to Simpson and her mother. If Simpson had never been born alive, her mother would have been able to recover for the physical and emotional injuries associated with a stillbirth. However, once Simpson was born alive, she became a natural person under the Act. Upon birth, she became a patient of Dr. Roberts under the Act and had her own claim against Dr. Roberts. Under the Act, her claim for negligence included health care provided in utero consistent with the statutory definitions.”

 This was consistent with the “relation back” argument that we advanced throughout the case when the trial court first sustained our demurrer finding that the cap applied to the child’s claim against the obstetrician performing the amniocentesis.

For a copy of the complete opinion, please click the following link.

SCV Opinion – Simpson v. Dr. Roberts et al.pdf




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All of Frith Anderson & Peake’s attorneys are experienced insurance defense attorneys.  We are well-versed in all aspects of insurance-related litigation, from claims investigation to questions involving coverage to litigation in trial courts, appellate courts and the Virginia Workers’ Compensation Commission. In addition to our insurance-defense litigation practice, we offer the following services to insurers: Coverage Analysis & Opinions As a result of our firm’s longstanding and broad insurance-defense practice, we have extensive experience with coverage disputes in every area of law in which we practice.  Coverage issues can range from simple, narrow questions to disputes involving multiple insurance companies...

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