Brown v. Tashman

93 Va. Cir. 262
CourtFairfax County Circuit Court
DecidedMay 2, 2016
DocketCase No. CL-2014-9747
StatusPublished

This text of 93 Va. Cir. 262 (Brown v. Tashman) is published on Counsel Stack Legal Research, covering Fairfax County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Tashman, 93 Va. Cir. 262 (Va. Super. Ct. 2016).

Opinion

By

Judge Grace Burke Carroll

This case is before the Court on Defendants’, Hunter S. Tashman, M.D. (“Dr. Tashman”), an obstetrician and gynecologist, and his practice, Hunter Scott Tashman, M.D., P.C. (collectively “Defendants”), Plea in Bar. After the hearing and oral argument by counsel for Plaintiff and Defendants, the Court took this matter under advisement. For the reasons set forth below, Defendants’ Plea in Bar is denied.

I. Background

Ashley Brown brings this medical malpractice suit against Defendants, alleging that Dr. Tashman acted negligently in his care and treatment of Plaintiff during the course of her third pregnancy and at the conclusion of her second pregnancy. As a result of Dr. Tashman’s alleged negligence, Plaintiff claimed that she sustained physical injury and suffered emotional distress during her third pregnancy. Plaintiff further alleged that Hunter Scott Tashman, M.D., P.C., should be held liable for Dr. Tashman’s negligence, under the theory of respondeat superior. Plaintiff filed her Complaint on July 24, 2014.

On February 17, 2016, the parties appeared before this Court for a hearing on Defendants’ Plea in Bar. Defendants argued that Plaintiff filed her Complaint outside the prescribed two-year statute of limitations for a medical malpractice action, pursuant to Va. Code § 8.01-243(A). At [263]*263the hearing, Defendants presented evidence through expert testimony of Alessandro Ghidini, M.D., a maternal-fetal expert, and factual testimony by Dr. Tashman. Specifically, Defendants contend that the injury occurred in March 2012, and therefore this action is time-barred, as Plaintiff filed her Complaint on July 24,2014. Plaintiff argues that Dr. Tashman’s continuous treatment of Plaintiff throughout the course of her third pregnancy extended the accrual of the statute of limitations until, at least, July 26,2012, the date of the delivery of Plaintiff’s third child. The Court took the matter under advisement and requested that the parties submit supplemental briefs on the issue of whether Dr. Tashman’s alleged 2009 negligent action may be considered part of the cause of action that Plaintiff seeks to recover, in light of Nunnally v. Artis, 254 Va. 247, 492 S.E.2d 126 (1997), and St. George v. Pariser, 253 Va. 329, 484 S.E.2d 888 (1997).

II. Relevant Facts

Dr. Tashman began treating Plaintiff for obstetric and gynecological care in April 2004. Dr. Tashman treated Plaintiff throughout her first and second pregnancies. During these courses oftreatment, Dr. Tashman determined that Plaintiff had an Rh-negative blood type. The impact of Plaintiff’s negative blood type meant that her red blood cells lacked the RhD antigen that were present in individuals with a positive blood type. During Plaintiff’s second pregnancy, blood tests revealed that Plaintiff had an RhD antibody titer of 1:64, indicating that Plaintiff had Rh alloimmunization, a medical condition that caused Plaintiff’s immune system to develop antibodies to attack Rh-positive blood cells and those antibodies would likely destruct her fetus’ Rh positive blood cells, causing fetal anemia. As a result, Plaintiff became sensitized to the Rh-positive blood type of her second child, bom on May 27, 2009. Sensitization is the process where Plaintiff’s blood developed an antibody, in this case antibody D, resulting from her Rh-negative blood type interacting with the Rh-positive blood type of her fetus and eventual child.

During the hearing, Defendant presented expert testimony of Dr. Ghidini, who established that sensitization itself is not an injury, but a developed condition after Plaintiff had been exposed to the Rh-positive blood type, likely occurring during delivery of her second child. Dr. Ghidini further opined, sensitization only becomes injurious during a subsequent pregnancy where a fetus also has an Rh-positive blood type and communication of the placenta is established. Before the placenta is established, no interaction occurs between Plaintiff and the fetus; thus, the fetus remained protected from maternal immunoglobulins. Once the cellular barrier in the placenta is established, the immunoglobulins can pass from fetal circulation to maternal circulation, alerting the maternal immune system to the presence of a body with an Rh-positive blood type and, therefore, incompatibility. The maternal response to the incompatibility can cause the maternal [264]*264immunoglobulin to cross this placental barrier and impact the fetal cells in the fetal circulation. Dr. Ghidini established that the injury to the fetus would have first occurred sometime in March 2012, when the fetus was sixteen to twenty weeks gestation. The initial injury would be mild to moderate degrees of anemia, and continuing in severity of the anemic effects to birth. To avoid the immunologic response, RhoGAM is administered to the mother. RhoGAM is an immunoglobulin intended to destroy fetal cells that crossed the barrier of the placenta and matriculate into the maternal circulation to prevent activation of the maternal immune system, thereby reducing fetal cell destruction and avoiding fetal anemia. RhoGAM is not one hundred percent effective, and the success of the treatment depends on individual variances in the maternal and fetal systems, including the frequency of the mixing of red cells in circulation.

Dr. Tashman testified at the hearing that, between a post-partum visit in July 2009 until Plaintiff’s visit in 2011, he provided no care to Plaintiff for her Rli-negative status. During this time frame, he did provide treatment for contraceptive methods. Further, Dr. Tashman testified that, as a result of the 1:64 titer results in January 2012, he had a management plan to include: ultrasound tests, fundal height measurements, and fetal heart rate monitoring throughout the course of the pregnancy. This management plan was in addition to treating the pregnancy itself. During Plaintiff’s second pregnancy, Dr. Tashman administered one dose of RhoGAM; however, he did not administer a second RhoGAM injection after Plaintiff gave birth in 2009.

On July 26,2012, Dr. Tashman delivered Plaintiff’s third child, Christian, via cesarean procedure at Inova Fair Oaks Hospital. Following the cesarean procedure, Dr. Tashman conducted an Apgar examination on Christian that yielded abnormal results. Additionally, Christian suffered severe respiratory distress and was transferred to the neonatal intensive care unit (“NICU”) for seven days. NICU physicians concluded that Christian suffered respiratory insufficiency, anemia, hyperbilirubinemia, thrombocytopenia, pulmonary hypertension, tricuspid regurgitation, patent foramen ovale, and pulmonary artery branch stenosis. The NICU discharged Christian on August 2, 2012.

On July 25, 2014, Plaintiff filed this medical malpractice suit asserting that she and Christian were injured as a proximate cause of Dr. Tashman’s failure administer the second RhoGAM injection in 2009 orto treat Plaintiff for the abnormal levels of antibodies during her third pregnancy.

III. Arguments

A. Defendants’ Plea in Bar

Defendants argue that neither Nunnally nor St. George are instructive because they did not analyze the continuing treatment rule and that Plaintiff’s cause of action accrued upon her injury, in March 2012.

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Bluebook (online)
93 Va. Cir. 262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-tashman-vaccfairfax-2016.