NEGLIGENCE PER SE, NO WAY! NEGLIGENCE PER SE IS NOT A COGNIZABLE CAUSE OF ACTION IN MEDICAL NEGLIGENCE CASES. Jodi B. Simopoulos*

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1 \\server05\productn\j\jcl\20-2\jcl203.txt unknown Seq: 1 21-MAY-08 10:16 NEGLIGENCE PER SE, NO WAY! NEGLIGENCE PER SE IS NOT A COGNIZABLE CAUSE OF ACTION IN MEDICAL NEGLIGENCE CASES. Jodi B. Simopoulos* Consider the following scenario. A home nursing care organization ( HNC ) employs Nurse Betty. Within the context of her employment, Nurse Betty cares for a patient in his home. The patient is injured while under that care. The patient subsequently files a negligence action against HNC. HNC turns to you, its medical malpractice defense attorney, for representation. Unfortunately, this is not your typical medical malpractice action. The patient has filed a claim based upon negligence per se. He cites certain Virginia Board of Health regulations, which in part require an agency to provide care by an appropriately qualified registered nurse, to supervise the nurse as necessary for the patient s needs, and to adequately staff and train its nurses. The patient alleges that HNC failed to comply with these regulations and as a result is negligent per se. You file a demurrer, but the court overrules it, finding that the patient has stated a claim for negligence per se. The case moves forward and you designate two experts on behalf of HNC, both of whom will testify that Nurse Betty complied with the standard of care in her treatment of the patient. The patient moves to strike your experts, arguing that in a negligence per se action expert testimony regarding standard of care is unnecessary. Instead, the patient asserts that the jury alone must make the factual determination of whether HNC complied with the Virginia Board of Health regulations. This scenario seems far-fetched, but in fact, some plaintiffs attorneys are employing this strategy in an effort to circumvent the need for standard of care experts. Unless the Virginia courts quickly reject this tactic, medical malpractice cases could take on a drastically different shape, and a variety of new civil causes of action could be created. I. NEGLIGENCE PER SE The elements of a common-law negligence action are a legal duty owed by the defendant, breach of that duty, proximate cause, and damage to the plaintiff. 1 In such an action, the fact finder must determine if the defendant has breached his * Ms. Simopoulos is an associate in the Richmond office of LeClairRyan and is a member of the Virginia Association of Defense Attorneys. She thanks Ashley Dobbin of LeClairRyan for the title suggestion. 1 Blue Ridge Serv. Corp. v. Saxon Shoes, Inc., 271 Va. 206, 218, 624 S.E.2d 55, 62 (2006). JOURNAL OF CIVIL LITIGATION, VOL. XX, NO. 2(SUMMER 2008) 201

2 \\server05\productn\j\jcl\20-2\jcl203.txt unknown Seq: 2 21-MAY-08 10: JOURNAL OF CIVIL LITIGATION, VOL. XX, NO. 2 (SUMMER 2008) duty to the plaintiff by considering the standard of conduct by which the defendant should have been acting. It is well established in Virginia that the standard of conduct to which a party must conform is that of a reasonable person under like circumstances. 2 The distinction between common-law negligence and negligence per se relates to the standard of conduct by which the defendant is measured. The Supreme Court of Virginia has explained that the doctrine of negligence per se consists of the adoption of the requirements of a legislative enactment [in place of the] standard of conduct of a reasonable person. 3 In other words, in a negligence per se action, the violation of an ordinance, regulation, or statute constitutes negligence because the individual has failed to abide by the standard of care as prescribed by the legislative body. When alleging negligence per se, a plaintiff need not establish common-law negligence as set forth above as long as the plaintiff satisfies certain other elements. 4 The elements are as follows. First, the plaintiff must prove that the defendant violated a statute enacted for public safety. Second, the plaintiff must be a member of the class for whose benefit the legislature enacted the statute. Third, the plaintiff must have suffered an injury of the type against which the statute protects. Finally, the statutory violation must have been a proximate cause of the injury. 5 The following cases are illustrative of the doctrine of negligence per se. In Butler v. Frieden, the Supreme Court of Virginia affirmed a verdict of negligence per se where a four-year-old child was attacked on a public sidewalk by an unattended and unleashed dog. 6 The child filed suit against the dog owner, alleging violations of city ordinances that required an owner to leash his dog and accompany the dog when on public streets. In affirming the application of the doctrine of negligence per se, the Supreme Court held that the dog owner had violated the ordinance, which in and of itself supplie[d] a standard for determining whether the dog-owner ha[d] exercised his duty of ordinary care. 7 More recently, in McGuire v. Hodges, the Supreme Court affirmed a verdict of negligence per se where a child drowned in a neighbor s pool. 8 The defendant s pool was not protected by a proper fence as required by national and county building codes. In affirming the verdict for the plaintiff, the Supreme Court held that the defendant had violated the building code, the child was 2 See, e.g., Moore v. Virginia Transit Co., 188 Va. 493, S.E.2d 268, 271 (1948). 3 Schlimmer v. Poverty Hunt Club, 268 Va. 74, 78, 597 S.E.2d 43, 46 (2004) (internal citations omitted). 4 Id. 5 Id. at 79, 597 S.E.2d Va. 352, 158 S.E.2d 121 (1967). 7 Id. at 355, 158 S.E.2d at Va. 199, 639 S.E.2d 284 (2007).

3 \\server05\productn\j\jcl\20-2\jcl203.txt unknown Seq: 3 21-MAY-08 10:16 NEGLIGENCE PER SE IS NOT A CAUSE OF ACTION 203 within the class of individuals meant to be protected by the code, and the child s death had been proximately caused by the defendant s violation. 9 It is important to note that the Supreme Court has rejected the application of the doctrine of negligence per se where permitting such claims to go forward would create a new civil cause of action. For instance, in Johnson v. Bell, 10 the Supreme Court found that the defendants had not been negligent per se. There, the plaintiff slipped on snow and ice and fractured her ankle when walking on the defendants sidewalk. 11 Contrary to the requirements of a city ordinance, the defendants had failed to remove snow and ice from the sidewalk. 12 The Court reasoned that (1) the ordinance was enacted for the city s benefit, rather than the traveling public, since the city originally bore the responsibility of clearing the sidewalks, and (2) the defendant owed no existing common-law duty to pedestrians to keep the sidewalk clear. 13 Thus, the Court resisted creating a new civil cause of action where a common-law action did not already exist. Seven years later, when the Supreme Court decided Butler, 14 the Court addressed the distinction between Johnson and Butler, and explained why allowing the doctrine of negligence per se to go forward in Butler would not create a new civil cause of action. In contrast [to the property owners in Johnson] the dog-owner [in Butler], and not the city, had the common law duty of exercising ordinary care to protect other persons from injuries that might be inflicted by his dog and was subject to civil liability for breach of that duty. The [city] ordinance does not, therefore, create a cause of action against the dog-owner. Rather, the ordinance supplied a standard for determining whether the dog owner has exercised his duty of ordinary care. 15 Accordingly, permitting a negligence per se action in Butler did not create a new civil cause of action as it would have in Johnson, where the property owners owed no original common-law duty to pedestrians. In Williamson v. The Old Brogue, the Supreme Court affirmed the dismissal of a negligence per se action on demurrer. 16 The Old Brogue, a Fairfax County bar, was sued for negligence per se arising out of damages sustained by the plaintiff during an automobile accident with an intoxicated customer of the bar. The plaintiff alleged that The Old Brogue had committed a misdemeanor, in 9 Id Va. 274, 117 S.E.2d 85 (1960). 11 Id. 12 Id. 13 Id. at 277, 117 S.E.2d at Va. 352, 158 S.E.2d 121 (1967). 15 Id. at 355, 158 S.E.2d at Va. 350, 350 S.E.2d 621 (1986).

4 \\server05\productn\j\jcl\20-2\jcl203.txt unknown Seq: 4 21-MAY-08 10: JOURNAL OF CIVIL LITIGATION, VOL. XX, NO. 2 (SUMMER 2008) violation of Virginia statutory law, by selling alcoholic beverages to the intoxicated customer. 17 The trial court found that regardless of whether The Old Brogue had violated the statute, it was not negligent per se. The Court held: [T]he violation of a statute does not, by that very fact alone, constitute actionable negligence or make the guilty party negligent per se. In order for the violation of a statute or ordinance to constitute actionable negligence, the injured person must have been of that class for whose benefit or protection the law was enacted. In other words, the statute may define the standard of care to be exercised where there is an underlying common-law duty, but the doctrine of negligence per se does not create a cause of action where none otherwise exists. 18 The Court found that the legislation at issue was not enacted for the benefit of members of the public. Rather, while there were incidental benefits to the public of safety and protection from personal injury, the statute was a licensing act directed to promotion of sobriety and public morality. 19 Moreover, at common law, no cause of action existed for a third party against a seller of alcohol for injuries suffered at the hands of an intoxicated customer. 20 Thus, the Court refused to permit an action of negligence per se where to allow same would create a new civil cause of action. These cases and the issues that they raise are illustrative of the nuances of the doctrine of negligence per se. The question thus becomes whether this doctrine can coexist with the tenets governing a medical malpractice action. That is, should the doctrine apply in the medical malpractice context? The answer is unquestionably no. II. MEDICAL MALPRACTICE Medical malpractice cases are rooted in common-law negligence. The elements are duty, breach of duty, proximate cause, and damages. 21 A health care provider owes a duty to her patient by virtue of the relationship between them. In other words, in a medical malpractice case, the duty is created by the physician-patient relationship. 22 [T]hat relationship springs from a consensual transaction, a contract, express or implied, general or special, and a patient is entitled to damages resulting from a breach of a physician s duty Id. 18 Id. at 355, 350 S.E.2d at 624 (emphasis added) (citations omitted). 19 Id. at , 350 S.E.2d at Id. at , 350 S.E.2d at See Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825 (1982). 22 Lyons v. Grether, 218 Va. 630, 633, 239 S.E.2d 103, 105 (1977). 23 Id.

5 \\server05\productn\j\jcl\20-2\jcl203.txt unknown Seq: 5 21-MAY-08 10:16 NEGLIGENCE PER SE IS NOT A CAUSE OF ACTION 205 Whether the health care provider has breached her duty is determined by whether the applicable standard of care has been met. The Virginia legislature has codified the standard of care applicable in a medical malpractice action. Virginia Code section (A) provides, in pertinent portion: In any... action against a [health care provider] to recover damages alleged to have been caused by medical malpractice where the acts or omissions complained of are alleged to have occurred in this Commonwealth, the standard of care by which the acts or omissions are to be judged shall be that degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth and the testimony of an expert witness, otherwise qualified, as to such standard of care, shall be admitted In order to prove negligence, a plaintiff must establish that a defendant has violated the standard of care as set forth in the Code. 25 Generally, expert testimony is required to prove a violation of the standard of care. 26 A limited exception to this requirement exists where the alleged act of negligence clearly lies within the range of a lay person s common knowledge and experience. 27 Absent this narrow exception, the testimony of a qualified expert is necessary to establish a violation of the standard of care set forth in the Code. 28 III. NEGLIGENCE PER SE AND MEDICAL MALPRACTICE The Supreme Court of Virginia has yet to rule on the cognizability of a negligence per se claim in the medical malpractice context. However, case law on this matter is not entirely absent. In Conner v. Beverly Healthcare, the plaintiff claimed that the defendant health care providers had violated various federal and state statutes that regulated matters such as training of medical staff and abuse and neglect of the elderly. 29 The plaintiff argued that the defendants alleged violation of these statutes and regulations established negligence per se. 30 The defendants demurred, arguing that these statutes did not set forth private civil causes of action. The Circuit Court of the City of Buena Vista sustained the defendants demurrers. The court stated: 24 Emphasis added. 25 See Brown v. Koulizakis, 229 Va. 524, 331 S.E.2d 440 (1985). 26 Perdieu v. Blackstone Family Practice Ctr., 264 Va. 408, 568 S.E.2d 703 (2002). 27 See Beverly Enters.-Virginia v. Nichols, 247 Va. 264, 441 S.E.2d 1 (1994). 28 Perdieu, 264 Va. 408, 568 S.E.2d Va. Cir. LEXIS 97 (2002). 30 Id.

6 \\server05\productn\j\jcl\20-2\jcl203.txt unknown Seq: 6 21-MAY-08 10: JOURNAL OF CIVIL LITIGATION, VOL. XX, NO. 2 (SUMMER 2008) [t]he standard of care applicable to the negligence aspect of this case is that as set forth in Section of the Code of Virginia. The plaintiff may only rely on [that section] to establish the applicable standard of care.... Any alleged violations of [the state and federal statutes] do not establish negligence per se. 31 Similarly, in Fager v. Straight, Inc., the Circuit Court of Fairfax County sustained a demurrer to a negligence per se claim, which was based upon a licensed drug rehabilitation facilities alleged violation of Virginia Code section Code section set forth guidelines to protect the legal and human rights of individuals receiving services in such facilities. 33 The plaintiff alleged that the drug rehabilitation facilities purported violation of this section established negligence per se. 34 Judge Johanna L. Fitzpatrick sustained the defendants demurrers, declaring, the Court finds that an alleged violation of this statute does not give rise to a private cause of action. 35 Unfortunately, neither of these cases provides detailed insight into the circuit court s reasoning for the decision to preclude a claim of negligence per se in the medical malpractice context. Nevertheless, each decision, with its accompanying dismissal of a negligence per se claim at an early stage, offers promise. If the Supreme Court of Virginia affirms such a dismissal on appeal, the Court would ensure that medical malpractice actions will continue to require expert testimony regarding standard of care. Moreover, such affirmation by the Supreme Court would further discourage the creation of new civil causes of action against health care providers. The necessity for such judicial action is explained below. IV. IT S A SLIPPERY SLOPE Permitting negligence per se claims against health care practitioners is a slippery slope toward complete modification of medical malpractice law. Indeed, such an allowance would essentially rewrite legislation by eliminating the reasonably prudent practitioner standard of care. Furthermore, plaintiffs would be able to create a variety of new civil causes of action, which in turn would generate unknown and unpredictable consequences. Medical malpractice law and the doctrine of negligence per se are at odds with one another with regard to the standard of care that is required to be proven to establish that a duty has been breached. As previously noted, the duty in a medical malpractice case is a common-law duty arising from the physician-patient relationship. 36 The standard of care has been specifically codified 31 Id Va. Cir. 272, 1992 Va. Cir. LEXIS 289 (1992). 33 Id. 34 Id. 35 Id. at Lyons, 218 Va. at 633, 239 S.E.2d at 105.

7 \\server05\productn\j\jcl\20-2\jcl203.txt unknown Seq: 7 21-MAY-08 10:16 NEGLIGENCE PER SE IS NOT A CAUSE OF ACTION 207 as that degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth. 37 In contrast, under the doctrine of negligence per se, the duty is created by legislation, and the standard of care is replaced by the standard of conduct set forth in a statute, ordinance, or regulation. 38 If claims of negligence per se are permitted to be tried to fruition in the medical malpractice context, the result would be that the standard of care as codified by section would be eliminated in those cases. Rather than being held to the standard of a reasonably prudent practitioner in her field of practice, health care providers would be held to the standards of various statutes, ordinances, and regulations. Expert testimony would no longer be necessary to determine the standard of care and whether the health care provider breached that standard. Instead, courts would take judicial notice of legislation and leave it to the jury to determine if the health care provider complied with the mandates of that legislation. This result would change the face of medical malpractice cases. Since the codified standard of care would be eliminated in these cases, defense of such claims would prove inordinately more difficult and unpredictable. In each case, the health care provider would be held to a different standard of care, depending on the legislation allegedly violated. This legislation might be local, state, or federal. In some cases, where violations of numerous statutes and regulations are alleged, the health care provider might be held to several standards of care within one trial. Whereas now each party can use an expert to educate the jury on the standard of a reasonably prudent practitioner, there would be no such opportunity. Instead, the attorneys would invariably argue to the jurors regarding the meaning and language of the legislation and its purposes, in an effort to convince them whether it had been violated. The juries would be left to determine whether the health care practitioner violated various and complex statutes, ordinances, and regulations. This would serve to confuse any jury in a field of law that is already complex. Alternately, courts might consider the issue a question of law rather than fact and eliminate such questions from the juries province altogether. Medical malpractice cases would become an area of great unpredictability and confusion. The legislature intended neither this result nor the additional consequences. Pursuant to the canons of statutory construction, the clear language of a statute must not be interpreted to include limitations or exceptions not specifically set forth in the text. [U]nless the legislature makes exceptions to cover circumstances not specifically stated in the statute, such exceptions do not exist.... For [a] court to place any limitation on the clear and comprehensive lan- 37 VA. CODE Schlimmer v. Poverty Hunt Club, 268 Va. 74, 78, 597 S.E.2d 43, 46 (2004).

8 \\server05\productn\j\jcl\20-2\jcl203.txt unknown Seq: 8 21-MAY-08 10: JOURNAL OF CIVIL LITIGATION, VOL. XX, NO. 2 (SUMMER 2008) guage of the statute or to create an exception where none exists under the guise of statutory construction, would be to defeat the purpose of the enactment and engage in judicial legislation. 39 The General Assembly, through its enactment of Code section , has specifically required that the standard of care in a medical malpractice action shall be that degree of skill and diligence practiced by a reasonably prudent practitioner The clear language of section makes no exceptions to this standard of care. If a court were to permit a negligence per se action to go forward in the medical malpractice context, the result would be to create an exception to section where none exists, and to engage in judicial legislation. Therefore, the reasonably prudent practitioner standard must be preserved by dismissal of negligence per se claims. Not only should claims of negligence per se be rejected in medical malpractice to preserve the statutorily mandated standard of care, but the creation of new civil causes of action should be prevented. The Supreme Court of Virginia made it clear in Williamson, Johnson, and Butler that the doctrine of negligence per se does not create a new civil cause of action where none otherwise exists. A cause of action exists against health care providers in the form of a standard, common-law negligence claim. If plaintiffs are also permitted to sue health care providers based on every health care statute, ordinance, and regulation that appears to protect the public health and safety, the number of new civil causes of action would be immense. Recall in Johnson, how the sidewalk-clearing ordinance, while incidentally protecting the pedestrian public, was actually held to be for the benefit of the city. Similarly, recall how the regulation on alcohol sales in Williamson, while incidentally protecting the safety of individual members of the public, actually was determined to be for the benefit of the public morality and sobriety. In both of these cases, the Court determined that the purposes of the legislation did not include individual causes of action. Similarly, in the scenario set forth at the beginning of this article, the regulations of home nursing care organizations obviously benefit an individual patient s health and well-being. Nonetheless, the purpose of those regulations is to standardize and manage these organizations and ensure that they employ qualified individuals. Accordingly, while most legislation can be found to have some incidental benefit to the public, the purpose of that legislation is not to create a new cause of action, but generally for administrative or regulatory purposes. 41 The legislature cannot have intended, through the enactment of all health care statutes, ordinances, and regulations to 39 Haley v. Haley, 272 Va. 703, 707, 636 S.E.2d 400, 402 (2006) (citing Crewe v. Marler, 228 Va. 109, 319 S.E.2d 348 (1984)). 40 VA. CODE (emphasis added). 41 See, e.g., Williamson v. The Old Brogue, 232 Va. 350, 350 S.E.2d 621 (1986); Johnson v. Bell, 202 Va. 274, 117 S.E.2d 85 (1960); Conner v. Beverly Healthcare, 2002 Va. Cir. Lexis 97 (2002); Fager v. Straight, Inc., 28 Va. Cir. 272, 1992 Va. Cir. Lexis 289 (1992).

9 \\server05\productn\j\jcl\20-2\jcl203.txt unknown Seq: 9 21-MAY-08 10:16 NEGLIGENCE PER SE IS NOT A CAUSE OF ACTION 209 create new civil causes of action beyond those that are already permitted through common-law negligence actions. Arguably, all legislation relating to the medical field is designed to promote public health and safety. Nevertheless, the protection and well-being of each individual patient are incidental benefits, and these benefits ought not to give rise to an inference that a new cause of action was intended or permitted pursuant to the doctrine of negligence per se. To so conclude would be to open the floodgates for the creation of new civil causes of action. These new civil causes of action would carry with them unique and potentially divergent standards of care and would require no expert testimony to establish their breach. It cannot be imagined that the legislature intended, in its regulation of the health care industry, to create such a vast number of new causes of action. V. CONCLUSION The circuit courts of Buena Vista and Fairfax were correct in rejecting claims based upon the doctrine of negligence per se in the medical malpractice context. Such judicial action is necessary to preserve the reasonably prudent practitioner standard of care in medical malpractice actions and to prevent the creation of new civil causes of action against health care practitioners. Although it remains to be seen whether the Supreme Court of Virginia will tread the path marked by the circuit courts, following such a path is both wise and just.

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