NEGLIGENCE PER SE, NO WAY!

NEGLIGENCE PER SE IS NOT A COGNIZABLE CAUSE OF ACTION IN MEDICAL

NEGLIGENCE CASES.

Jodi B. Simopoulos: Negligence Per Se, No Way! Negligence Per Se is Not a Cognizable Cause
of Action in Medical Malpractice Cases, Journal of Civil Litigation, Vol XX 2008, 201

Pittenger v. Ruby Tuesday , Inc., No. M2006-00266-COA-R3CV, 2007 WL 935713

(Tenn. Ct. App. 2007)

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 patients 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 negli- gent 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 fac- tual determination of whether HNC complied with the Virginia Board of Health
regulations.

This scenario seems far-fetched, but in fact, some plaintiffs attorneys are em- ploying 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 duty to the plaintiff by considering the standard of
conduct by which the defen- dant 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 negli- gence 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, alleg- ing 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 deter- mining 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 neighbors pool.8 The defen- dants 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 within the class of individuals meant to be protected by the code, and the childs death
had been proximately caused by the defendants 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 citys benefit, rather than the traveling public, since the city
originally bore the responsibility of clear- ing 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 ad- dressed the
distinction between Johnson and Butler, and explained why al- lowing 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 ordi- nary 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
violation of Virginia statutory law, by selling alcoholic beverages to the intoxi- cated 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 actiona- ble 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 pub- lic 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 re- fused
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 ele- ments 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 physi- cian-patient relationship.22 [T]hat relationship springs from a consensual
trans- action, a contract, express or implied, general or special, and a patient is entitled to
damages resulting from a breach of a physicians duty.23

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 8.01-581.20(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 Com- monwealth, 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 rea- sonably 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 . . . . 24

In order to prove negligence, a plaintiff must establish that a defendant has vio- lated 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 persons 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 negli- gence 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 regu- lated matters such as training of medical staff
and abuse and neglect of the eld- erly.29 The plaintiff argued that the defendants alleged violation
of these statutes and regulations established negligence per se.30 The defendants de- murred,
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 de- murrers. The court
stated: