McHale v. Mohlie

74 Va. Cir. 108, 2007 Va. Cir. LEXIS 175

Opinion

By Judge Melvin R. Hughes, Jr.

The issue in this medical malpractice case raised by a demurrer is whether one of several defendants, a physician, was in a doctor-patient relationship with the plaintiff during the course of events described in the Amended Complaint.

The salient facts alleged as to defendant Dr. John Hennessey, whose demurrer is before the court, are that, after contacting Patient First the previous day regarding complaints of memory loss, high blood pressure, and a blood shot eye, plaintiff visited the Emergency Room of Chippenham Johnston-Willis Hospital. While there, he was seen by defendant Dr. Sumeer DeSai who asked Dr. Hennessey to look at “documents” on a consult. After doing so, Dr. Hennessey was of the opinion that the plaintiff was not suffering a stroke. Dr. Hennessy did not see the plaintiff nor did he provide any treatment. The plaintiff alleges that, by this involvement, a doctor-patient relationship was formed and that Dr. Hennessey breached the standard of care by a misdiagnosis. There is no other mention of Dr. Hennessey in the Amended Complaint.

It is the court’s view that, without an allegation that Dr Hennessey undertook plaintiffs care by consent, no doctor-patient was in place from which a duty arose and a breach thereof could arise. See Prosise v. Foster, 261 Va. 417, 544 S.E.2d 331 (2001) (citing Lyons v. Grether, 218 Va. 630, 633, 239 S.E.2d 103 (1977)).

As this is the second time the issue of duty as to this defendant has been raised and argued on demurrer, the court in sustaining this demurrer will do so without leave to amend.