2.2 Standards of Liability

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

2.2 STANDARDS OF LIABILITY

Generally, whether one sues on a theory of infliction of emotional distress, lack of informed consent, or failure to diagnose, the gravamen of medical malpractice is negligence. The exception to this general rule is when a claim is based on breach of contract. If a physician accepts a duty that is not imposed by the standard of care, a breach of that duty with resulting harm would give rise to a claim for breach of contract. ⁸ Absent a special promise triggering a contract right of action, the method of establishing liability, once a matter of common law, has now been codified. ⁹ Health care providers are held to the standard of the reasonably prudent practitioner in the same or a related specialty.

The proof is established in one of two ways. First, in rare circumstances, a jury may consider the issue of professional negligence without the benefit of expert testimony because the alleged act of negligence "clearly lies within the range of the jury's common knowledge and experience." ¹⁰

Second, in nearly all medical malpractice actions, a plaintiff must submit expert testimony addressing the reasonableness of a health care provider's actions. Since few jurors will have any experience with the education, training, or the decision-making experience of a health care provider, they must be educated by experts before determining the reasonableness of the behavior in question. ¹¹

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Notes:

^[8] See Glisson v. Loxley, 235 Va. 62, 366 S.E.2d 68 (1988) (decided under prior law).

^[9] Va. Code § 8.01-581.20.

^[10] Coston v. Bio-Med. Applications of Va., Inc., 275 Va. 1, 7, 654 S.E.2d 560, 563 (2008); Beverly Enters.-Va., Inc. v. Nichols, 247 Va. 264, 267, 441 S.E.2d 1, 3...