EMAIL TO A FRIEND COMMENT

 

Sexual Harassment Aggravating Pre-Existing Medical Conditions; Expert Required


A woman with fibromyalgia, depression, and radiculopathy was a patient at a doctor’s practice for approximately one year. The woman received treatment from a doctor at this practice for the psychological, emotional, and physical symptoms the woman was experiencing as a result of being the victim of sexual abuse and harassment. The doctor noted that the woman may have suffered from posttraumatic stress disorder (PTSD). The woman experienced suicidal and homicidal thoughts. The doctor prescribed various medications for the woman’s conditions, including antidepressant, anti-anxiety, and sleep aid medications.

 

More than two years after the woman’s last visit, the woman returned to the doctor’s practice because of high blood pressure. The doctor the woman had seen previously was unavailable. The woman was seen by another physician at the practice. The woman alleged that, while treating the woman for high blood pressure over the course of several visits, the second doctor engaged in conduct involving unsolicited and unwanted sexual comments and innuendo. For example, the doctor allegedly told the woman that if the woman lost weight the woman would feel and look sexy; referred to the woman and others as, “Love,” “Sweetpea,” and “Sweets”; described his sex life with his wife; told sexual jokes; and asked about the woman’s sex life with the woman’s husband. The woman surreptitiously recorded some, but not all, of these remarks. The doctor made some of these comments while the woman was accompanied by the husband and at least one of the comments was directed toward the husband.

 

The woman filed a medical malpractice claim against the doctor and the doctor’s practice group. The complaint alleged that the doctor’s treatment of the woman fell below the standard of care because the doctor knew or should have known about the woman’s pre-existing mental and physical health issues and that the doctor’s unsolicited, unwanted, inappropriate, and highly offensive sexual comments caused the woman’s pre-existing mental and physical health to drastically deteriorate.

 

The doctor filed a request for an expert witness certification contending that the woman was required to obtain an expert who could testify that the doctor and the practice group had deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed. The woman responded that no expert certification was required because whether the doctor was negligent and whether the statements the doctor made proximately caused the woman’s injuries were matters that fell within the range of the jury’s common knowledge and experience.

 

The doctor then moved for summary judgment, arguing that the woman’s failure to designate an expert required dismissal. The doctor submitted an expert designation to address the extent to which a reasonably prudent family practice physician had a duty to review a patient’s prior chart and to what extent the doctor’s statements to the patient deviated from the standard of care.

 

The woman submitted an expert designation. The woman designated a licensed professional counselor as a prospective expert witness. The counselor’s report detailed the woman’s difficult childhood, history of sexual abuse, and history of sexual harassment. The counselor stated that the woman had been diagnosed with bipolar disorder and PTSD and that the woman’s symptoms worsened after the incidents with the doctor. The counselor did not offer any opinion expressing a conclusion that the doctor’s comments were a proximate cause of the worsening of the woman’s pre-existing conditions.

 

The Circuit Court of Rockingham County granted summary judgment to the doctor. The trial court held that the woman was required to designate an expert who could offer testimony that the doctor’s words were a proximate cause of the aggravation of the woman’s preexisting conditions.

 

The Superior Court of Virginia affirmed. The court held that the woman was required to designate an expert who could offer testimony that the doctor’s words were a proximate cause of the aggravation of the woman’s preexisting conditions.

 

The woman was required to designate an expert who could offer testimony that the doctor’s words were a proximate cause of the aggravation of the woman’s preexisting conditions. Addressing an issue of first impression, the court held that a plaintiff suffering from preexisting mental, emotional, or physical conditions must designate an expert who can testify that a physician’s statements were a proximate cause of the aggravation of such preexisting conditions. The court noted that, when there are pre-existing conditions, discerning the causal connection between the alleged malpractice and the patient’s resulting injuries is a complicated medical question that is not within the understanding of a layperson. The woman suffered from a number of debilitating preexisting conditions, including PTSD, fibromyalgia, depression, and radiculopathy. The woman alleged that the doctor’s statements caused these conditions to worsen. A lay jury was not equipped from common experience with the knowledge of what can cause the aggravation of complex preexisting medical problems like PTSD, fibromyalgia, depression, and radiculopathy. Consequently, expert testimony was required. The woman did not produce such an expert. Therefore, the trial court correctly dismissed the action.

 

The Superior Court of Virginia affirmed the trial court’s dismissal of the woman’s medical malpractice claim.

 

See: Summers v. Syptak, 2017 WL 3090238 (Va., July 20, 2017) (not designated for publication). 

 

 

REPRINTS & PERMISSIONS COMMENT