892 F2d 74 Henry v. Georgetown University Henry

892 F.2d 74

Bonnie HENRY; Ronald Henry, Individually; Ronald Henry,
next friend of Amber Henry, Todd Henry, Heather
Henry, and Bryan Henry, the minor
children of Ronald and Bonnie
Henry, Plaintiffs-Appellees,
v.
GEORGETOWN UNIVERSITY, d/b/a Georgetown University Dental
Clinic, d/b/a Georgetown University School of
Dentistry, d/b/a Georgetown University
Hospital, Defendant-Appellant,
and
United States of America Defendant.
Ronald HENRY, next friend of Amber Henry, Todd Henry,
Heather Henry and Bryan Henry, the minor children
of Ronald and Bonnie Henry, Plaintiff-Appellant,
and
Bonnie Henry; Ronald Henry, Individually, Plaintiffs,
v.
GEORGETOWN UNIVERSITY, d/b/a Georgetown University Dental
Clinic, d/b/a Georgetown University School of
Dentistry, d/b/a Georgetown University
Hospital, Defendant-Appellee,
and
United States of America, Defendant.

Nos. 87-3761, 87-3765.

United States Court of Appeals, Fourth Circuit.

Argued: Nov. 2, 1989.
Decided Nov. 30, 1989.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Jeremiah C. Collins (Eva M. Petko, Williams & Connolly; Sheila C. Zimmet, Georgetown University Hospital, on brief), for appellant.

William Jeffrey Olson (John S. Miles, Gilman, Olson & Pangia; William P. Harper Jr., Hardee, Hardee & Harper; Robert R. Smiley, III, Smiley & Mineo, on brief), for appellees.

Before ERVIN, Chief Judge, WILKINSON, Circuit Judge, and JACKSON L. KISER, United States District Judge for the Western District of Virginia, sitting by designation.

ERVIN, Chief Judge:

view counter
1

In this medical malpractice action Georgetown University appeals a jury award rendered against it for $1.1 million. The University claims that the district court erred as a matter of law in exercising personal jurisdiction over the school, and in denying the University access to the Virginia Medical Malpractice Review Board. Georgetown also asserts that the evidence presented at trial is insufficient to support the jury's finding that the University is liable for damages resulting from Mrs. Henry's negligently performed surgery at Bethesda Naval Hospital, as well as the finding that only $100,000 of damages was attributable to that surgery. The Henrys filed a cross-appeal, alleging error by the trial court in dismissing the Henry children's action for negligent infliction of emotional distress. We affirm the dismissal of that action. We also find that the district court properly exercised personal jurisdiction over Georgetown, but decline to address Georgetown's equal protection of the law claim, for the reasons hereinafter set forth. We further find that the evidence was sufficient to support the jury's finding of liability against the University, but that the jury's award and allocation of damages apparently resulted from an improper motive. We therefore affirm in part, reverse in part, and remand for a new trial on damages and other proceedings consistent with this opinion.

I.

Factual and Procedural Background

2

Bonnie and Ronald Henry individually, and Ronald Henry as next friend of Amber, Todd, Heather, and Bryan Henry, the minor children of Bonnie and Ronald Henry, filed this action against Georgetown University ("G.U.") in the United States District Court for the Eastern District of Virginia. Their complaint alleged medical malpractice, loss of consortium, and negligent infliction of emotional distress resulting from dental and medical care rendered Mrs. Henry between 1982 and 1984.

3

Ronald Henry's action for loss of consortium was dismissed by agreement, and the district court dismissed the Henry children's claim for negligent infliction of emotional distress. After G.U.'s attempts to transfer the case to the United States District Court for the District of Columbia failed, the case proceeded to trial in Virginia. The action against G.U., tried to a jury, was consolidated for trial with Mrs. Henry's nonjury action against the United States under the Federal Tort Claims Act. The action against the United States alleged medical malpractice in connection with jaw surgery performed at the Bethesda Naval Hospital. Mrs. Henry contended that G.U.'s liability included responsibility for the subsequent negligence of the United States in performing the jaw surgery. Prior to the trial, the United States conceded liability for negligence in performing the jaw surgery. Thus, Mrs. Henry and G.U. tried their case to a jury on both liability and damages, while the United States and Mrs. Henry tried their case to the court on the issue of damages alone.

4

The evidence introduced at trial showed that Mrs. Henry first sought treatment at G.U. in April 1982. She wanted to have three crowns on her upper front teeth replaced because she was unhappy with their appearance. During Mrs. Henry's first visit to G.U. for evaluations, it was noted that she had a congenitally deformed jaw. Her deformity resulted in a severe overbite, so that when Mrs. Henry closed her mouth the only teeth that touched were the last 3-4 on each side in the back. Combined with Mrs. Henry's habit of grinding her teeth, this deformity resulted in Mrs. Henry's back teeth being ground flat. Following their initial examination and x-rays, the dentists at G.U. determined that the dental work on Mrs. Henry's back teeth would have to be replaced. The parties developed a treatment plan under which Mrs. Henry's back dental work would first be replaced, and then the cosmetic work which Mrs. Henry wanted on the three front crowns would be performed.

5

Mrs. Henry underwent treatment by students and instructors in the G.U. Dental Clinic for approximately eighteen months, with much of the treatment involving adjustments of her bite by performing work on her back teeth. As the work progressed, however, Mrs. Henry became dissatisfied with the students and their work. She began to experience headaches, and pain, cracking, and popping in her jaw.

6

After discussing her complaints with the student treating her and Dr. LaVecchia, an instructor at G.U., Mrs. Henry was sent to the Dental Clinic's Occlusion Department. Mrs. Henry was treated by Dr. Neff, the head of the department, who directed her to wear an occlusal1 splint to help her regain comfort. Mrs. Henry was also dissatisfied with her treatment by the Occlusion Department. She complained of pain when the students adjusted the splint, of difficulty eating when wearing the splint, and frustration at the amount of time involved in her treatment.

7

In January 1984, Mrs. Henry met with the Dean of the Dental Clinic, Dr. Carl Caplan. After that meeting, Dr. Caplan agreed to Mrs. Henry's demands that her treatment be completed by nonstudents at G.U.'s expense. Mrs. Henry was sent to Dr. Hal Brown, an instructor at the clinic, who treated Mrs. Henry in his private practice. Dr. Brown noted deficiencies with specific dental restoration performed on Mrs. Henry's back teeth, and recommended that she see several specialists for further evaluation, including consultation to determine "if treatment of her anterior open bite was advisable or desired in that case by Mrs. Henry."

view counter
8

Before Dr. Brown referred Mrs. Henry to anyone for evaluation of her open bite, one of her crowns came loose, and Mrs. Henry sought treatment at Bethesda. During this visit Mrs. Henry was seen by Dr. Finori, who suggested that she see oral surgeons about correcting her bite. Dr. Finori told Mrs. Henry that the work performed on her back teeth at G.U. was "putting the cart before the horse," and that he would recommend having her open bite surgically corrected first. Based on this recommendation, Mrs. Henry consulted with Dr. Wilhelm of the Bethesda Oral Surgery Department, who advised her to undergo jaw surgery to correct her bite. Specifically, Dr. Wilhelm recommended orthognathic surgery known as a Le Forte I osteonomy. Mrs. Henry then asked Dr. Brown to refer her to another oral surgeon for a second opinion. Dr. Brown referred her to Dr. Reynolds, Chairman of the Oral Surgery Department at Georgetown. Dr. Reynolds examined the x-rays of Mrs. Henry taken at Bethesda and agreed that orthognathic surgery was a "good option" for her.

9

After deciding to go forward with the surgery, Mrs. Henry arranged for it to be performed at Bethesda. Mrs. Henry anticipated returning to G.U. after the surgery for completion of the dental work. Dr. Brown arranged with the Naval surgeons to leave a space at the back of Mrs. Henry's mouth to allow for the reconstruction of her back teeth.

10

The surgery was performed in November 1984. Following the operation, Mrs. Henry began to experience severe physical problems, including headaches, spontaneous and prolonged nosebleeds, difficulty in breathing, and severe muscle spasms in her face. Attempts by Bethesda to remedy these problems failed and, in March 1985, Bethesda informed Mrs. Henry that the surgical procedure had failed, that her jaws had relapsed, and that the surgery would have to be redone. Mrs. Henry then elected to seek further treatment in her hometown of Pittsburgh, Pennsylvania. In May 1986 Dr. Guy Catane of Pittsburgh correctly redid Mrs. Henry's jaw surgery. Following this second surgery, Mrs. Henry continued to experience pain and popping in her jaw. As a result, in December 1986 Mrs. Henry underwent jaw surgery for a third time. This surgery, known as bilateral temporomandibular joint ("TMJ") surgery, was also performed by Dr. Catane. The procedure involved removing the disk from each of Mrs. Henry's TMJ joints. After this surgery the severe thumping in Mrs. Henry's jaw ceased, as did the pain she had experienced in her neck and arms. As a result of the TMJ surgery, however, Mrs. Henry will develop osteoarthritis in her TMJ joints at an accelerated pace.

11

The direct medical testimony at trial included that of four treating physicians as well as two experts who had reviewed the case. Dr. Catane testified that the jaw pain Mrs. Henry experienced after the Bethesda surgery, as well as the TMJ surgery he performed, were the direct result of errors made by the Bethesda surgeons. Dr. Catane testified specifically as to what those errors were, and how they resulted in the excessive bleeding, the TMJ pain, and the need for the additional surgical procedures.

12

Dr. LaVecchia testified that Mrs. Henry's jaws were "asymptomatic" when she first sought treatment at G.U. in 1982, and that her condition changed during her treatment at the University.

13

Drs. Wilhelm and Bowen, two of the three Bethesda surgeons, were called as witnesses by the United States. Dr. Wilhelm testified that there was nothing G.U. did or did not do that caused a need for the Bethesda surgery, and that the surgery was performed to correct Mrs. Henry's open bite. Dr. Brown also testified that the Bethesda surgery was an elective procedure performed to address the malocclusion with which Mrs. Henry was born.

14

Dr. Gruendel, an oral surgeon and a specialist in maxillofacial prosthetics, testified that he believed Mrs. Henry was too complex a patient to have been treated by students, and that a more comprehensive work up should have been done before Mrs. Henry's treatment began. He also testified that he believed the relationship of Mrs. Henry's joints and muscles of mastication were disturbed by the dental work done by Georgetown because that work was done too quickly. He further testified that proper treatment for the problems resulting from the dental work would have been to have Mrs. Henry wear an occlusal splint to regain comfort, and then redo the dental work if necessary.

15

Dr. Clarence Lindquist, an oral surgeon, testified that the type of surgery performed on Mrs. Henry is never needed as a result of problems related to dental work, but rather that those sorts of problems are directly addressed by adjusting or redoing the dental work. Thus, Dr. Lindquist testified that nothing G.U. did or did not do in performing the dental work could have caused a need for the Bethesda surgery. He further testified that only an open bite, a condition with which Mrs. Henry was born, is addressed by orthognatic surgery.

16

Responding to special interrogatories, the jury returned a verdict of $1.1 million against G.U. It found the University liable for the Bethesda surgery, but attributed only $100,000.00 of its verdict to damages arising from that surgery. The district court entered judgment against the United States for $371,115.63 plus costs, and against Georgetown for $1.1 million.

II.

Personal Jurisdiction

17

Georgetown argues that the district court lacked personal jurisdiction over the school. Peanut Corp. of America v. Hollywood Brands, 696 F.2d 311 (4th Cir.1982), requires a dual analysis when determining whether a court has personal jurisdiction under a long arm statute. First, the court must determine whether a statutory basis for the assertion of jurisdiction exists. If such a basis does exist, the court must then determine "whether the statutory assertion of personal jurisdiction is consistent with the Due Process Clause of the United States Constitution. 696 F.2d at 313.

18

While G.U. does not challenge the district court's exercise of jurisdiction on due process grounds, the University does challenge the court's finding that jurisdiction is appropriate under subsection 3 of the Virginia Long Arm Statute. That subsection provides for personal jurisdiction over a party who causes "tortious injury by act or omission in [Virginia]." Va.Code § 8.01-328.1(A).

19

The district court found that Georgetown's "continued treatment" of Mrs. Henry through phone calls and letters to Virginia constituted the tortious acts required by subsection 3. The University argues that such contact does not amount to an act under the statute.

20

We decline to decide whether jurisdiction was proper on this ground, however, because it appears to us that on its face subsection 1 of the Long Arm Statute provides a basis for exercising jurisdiction over the school. That subsection provides for personal jurisdiction over a party "Transacting any business in the Commonwealth." Va.Code § 8.01-328.1(1).

21

Subsection (A)(1) provides that a defendant transacting any business in the Commonwealth of Virginia is amenable to process for any cause of action arising from such business. This court pointed out in Peanut Corp. of America v. Hollywood Brands, supra, that § 8.01-328.1 is to be read as broadly as due process permits. In that case the Court was dealing with subsection (1), and it stated, "Paragraph (1) of the statute extends the court's personal jurisdiction to encompass all nonresidents who transact any business within Virginia so long as the cause of action asserted arises from the nonresident's transaction of business." Id. at 313-314 (emphasis in original).

22

G.U. solicits business in Virginia by regularly advertising in the Fairfax Journal, the Arlington Journal, and the Washington Post. G.U. also advertises its services in the Northern Virginia Yellow and White Pages. In view of these facts the district court found that "Georgetown has regularly advertised and offered its services to residents of the Washington, D.C. metropolitan area, including residents of Northern Virginia."

23

Georgetown transacts business in Virginia in that for a number of years the University has had affiliation agreements with two Virginia hospitals. An affiliation program means that G.U.'s medical and dental students, working as residents, treat patients at the Arlington and Fairfax Hospitals. Under the agreements these Virginia hospitals compensate G.U. for the medical services of G.U. medical and dental personnel rendered in Virginia. Through this business transaction Georgetown is able to provide necessary training and experience for its medical students and residents, and the Virginia hospitals receive the extra medical services they require.

24

Therefore, in our opinion subsection (1) of the Virginia Long Arm Statute is the proper section with which to exercise personal jurisdiction over Georgetown, and it is not necessary to consider other subsections of that statute.

25

Furthermore, in light of the extensive activities carried on in Virginia by Georgetown, it is certainly not unfair to subject it to suit in Virginia. United States v. Douglas, 626 F.Supp. 621, 624 (E.D.Va.1985).

III.

Medical Malpractice Review Board

26

The Virginia Medical Malpractice Review Act provides that, if a defendant so elects, a medical malpractice claim must be considered by a Review Panel before a suit may be brought in court. Va.Code Ann. §§ 8.01-581.1, et seq. In preparation for their hearing before the panel, the parties are allowed discovery in accordance with the state rules of civil procedure. Va.Code Ann. § 8.01-581.4. At the hearing the panel may hear any evidence, testimonial or otherwise, that would be admissible in state court. Id. The panel issues a decision in which it finds that the evidence does or does not support a conclusion that the health care provider failed to comply with the appropriate standard of care, and if so whether the failure proximately caused the alleged damages. Va.Code Ann. § 8.01-581.7. The opinion is admissible as evidence in any action subsequently brought in a court of law, and either party may call panel members as witnesses at trial. Va.Code Ann. § 8.01-581.8.

27

The option of proceeding before a panel is available only to those defendants who are health care practitioners licensed by Virginia. See Va.Code Ann. §§ 8.01-581.1, 8.01-581.2. Georgetown claims that the state's refusal to allow the University a hearing before a panel, because the hospital is not licensed by Virginia, violates its fourteenth amendment right to equal protection of the law.

28

The district court refused to decide G.U.'s equal protection claim, stating that, even if the statute did deny G.U. equal protection, the court could not "rewrite" the law to allow the University access to a review panel. If the statute did violate the Equal Protection Clause, the court would have to strike the law in its entirety. Thus, the trial court concluded, even if G.U. prevailed on its equal protection claim, the University could not be afforded the remedy it sought--access to a review panel. For this reason the district court found that G.U.'s challenge to the statute presented no case or controversy which it could rule on.

29

The lower court's attempt to duck this question by declaring it nonjusticable constitutes clear error. Indeed, Mrs. Henry does not seriously contend that G.U.'s challenge presents no case or controversy. Had the district court found that the statute violated equal protection, it could have properly extended the statute to allow G.U. access to a review panel. See Heckler v. Mathews, 465 U.S. 728, 729, 104 S.Ct. 1387, 1388, 79 L.Ed.2d 646 (1984) ("when the 'right invoked is that to equal treatment,' the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class."). The question of whether the statute should be struck altogether, or whether the class of beneficiaries should be extended, depends upon what is "more in keeping" with the intended legislative scheme. Id., 465 U.S. at 129, 104 S.Ct. at 1388.

30

This argument would continue, it is clear from the face of the statute that the primary goal of the laws was to insure the availability of health care to the residents of Virginia.2 The legislature's concern was that health care providers continue to practice in Virginia. We question whether affording access to review panels only to those health care providers licensed by the state is a rational means of effectuating that purpose. Indeed, the logical method of insuring the availability of medical care to Virginia residents would seem to be to make available the review panel option to all health care providers who treat Virginia residents. In short, Virginia's distinction between health care providers licensed by Virginia and those licensed by other entities would have difficulty surviving even minimal scrutiny.

31

A strong "fairness" argument could be made that once a state has exercised long arm jurisdiction over an entity, that entity is entitled to equal protection under that state's laws with respect to those activities which provide the premise for jurisdiction. Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976). Under the peculiar facts of this case, however, and in light of the fact that the Commonwealth of Virginia has not been afforded any opportunity to defend the constitutionality of Virginia's Malpractice Review Act, we find it unnecessary to address this issue.

32

Another reason for declining to pass upon the constitutionality of the Virginia Act lies in the argument, perhaps not fully articulated by the parties, but lurking in the background, that the Act has no application in this factual setting. This argument would run as follows:

33

The tort committed by Georgetown was committed in the District of Columbia. That is where all of the treatment was performed and advice was given. Virginia follows the traditional conflict of laws rule that the substantive law of the place of the wrong governs the rights and remedies of the parties. McMillan v. McMillan, 219 Va. 1127, 253 S.E.2d 662 (1979). Thus, the Virginia federal court hearing this case on the basis of diversity jurisdiction was bound to apply the substantive law of the District of Columbia. Consequently, if the Malpractice Act is substantive, as distinguished from procedural, it would have no application in this case, and Georgetown would not be entitled to invoke it. Critical to this analysis is the determination that the Malpractice Act is substantive rather than procedural. While the Malpractice Act has some procedural aspects to it, it is an integrated scheme, the purpose of which is to alter and define the substantive rights and remedies that govern the parties to a medical malpractice dispute. This interpretation is supported by this Court's analysis in DiAntonio v. Accomack Hospital, 628 F.2d 287 (4th Cir.1980), and, by implication, this Court's recent decision in Boyd v. Bulala, 877 F.2d 1191 (4th Cir.1989).

34

If a Virginia licensed health care provider had committed a tort in the District of Columbia, and the injured plaintiff subsequently had filed suit in the State of Virginia, the argument continues, the Virginia health care provider would not be entitled to the panoply of procedures nor the damages cap that the Malpractice Act provides because the Virginia court would be obliged to apply the substantive law of the District of Columbia. Under this approach the correct application of the Malpractice Act would result in the consistent treatment of all defendants, whether the defendants are Virginia health care providers or out-of-state health care providers. Under this analysis, the out-of-state health care providers would have no basis for an equal protection claim, unless an out-of-state health care provider commits a tort in Virginia and is denied the benefits of the Malpractice Act.

35

We do not need to choose between these two conflicting interpretations of this issue, however. Even if Georgetown was entitled to invoke the provisions of the Medical Malpractice Review Act, a ruling we expressly decline to make at this time, we are persuaded that the school has suffered no harm in this case by being denied access to such a panel. We decline to afford Georgetown the opportunity to retry the issues of liability or damages before such an administrative body. We see no reason to believe that such a review panel would have helped the school, nor do we understand how any useful purpose would be served by delaying the retrial on damages which we require while the parties proceed under the Act. We note that any decision by such a panel is not binding upon a jury, but is merely a piece of evidence to be considered in conjunction with all of the other information presented to the trier of fact. Va.Code Ann. § 8.01-581.8. In this particular case, the evidence of Georgetown's negligence was substantial. Assuming arguendo that the panel would have found favorably towards the University on the issue of negligence, we do not believe that such a finding would have affected the jury's decision. Georgetown was able to present its own well-qualified experts at trial, each of whom testified that the school was not responsible for Mrs. Henry's jaw surgery. In view of the other evidence, the jury chose to disbelieve this testimony. By the same token, there was no doubt that Mrs. Henry sustained serious injuries and was entitled to recover substantial damages. The primary controversy concerned not the amount of damages but how to apportion them between the University's treatment of Mrs. Henry and the Bethesda surgery. Even assuming that a review panel plays a meaningful role in ascertaining and allocating damages, we fail to see how favorable findings by the review panel on either liability or damages would have made a difference in this trial's outcome. Furthermore, we view the suggestion that a review panel should now intervene as somewhat akin to trying to "unscramble an egg." We conclude that if error occurred in this respect it was, on these facts, harmless, and entitles Georgetown to no relief on this appeal.

IV.

Sufficiency of the Evidence of Liability

36

Georgetown argues that the evidence presented at trial was insufficient to prove that the University's negligence proximately caused the Bethesda surgery. Under Virginia law, questions of proximate cause are left to the jury. See Griffin v. Shively, 226 Va. 491, 315 S.E.2d 757 (1984); Meeks v. Hodges, 226 Va. 206, 306 S.E.2d 879 (1983). Generally, as long as a jury's verdict is supported by competent evidence it cannot be disturbed on appeal. See Dozier v. Morrissette, 198 Va. 37, 92 S.E.2d 366 (1956); Allen v. Brooks, 203 Va. 357, 124 S.E.2d 18 (1962). In proximate cause cases, jury verdicts may be overturned by courts only where the evidence presented is such that "reasonable minds could not differ" about the outcome. Graddy v. Hatchett, 353 S.E.2d 210, 212, 233 Va. 65 (1987). See also Meeks, supra, 306 S.E.2d 879.

37

The evidence at trial demonstrated that Mrs. Henry went to G.U. seeking cosmetic work on three of her front teeth. Instead of simply performing this work as requested, G.U. recommended that Mrs. Henry first undergo treatment on her back teeth. At that time Mrs. Henry suffered no jaw pain despite having lived her entire life with a congenitally deformed jaw. The evidence at trial established that some of this work was negligently performed. As a result of this negligent work Mrs. Henry experienced pain and suffering and sought treatment at Bethesda. The Bethesda doctors told Mrs. Henry that the work on her back teeth would essentially be for naught unless she underwent surgery to correct her open bite. An oral surgeon at G.U. confirmed that such surgery was probably advisable in order to correct that bite. Mrs. Henry then proceeded with that surgery, which was negligently performed.

38

Given this series of events, the jury could have concluded that G.U.'s treatment led to the surgery, because if the University had simply done the cosmetic work requested by Mrs. Henry, or had it correctly performed the work on her back teeth, Mrs. Henry never would have undergone the negligent jaw surgery or the TMJ surgery. Because there is ample evidence which the jury could have relied on in following this logic and reaching its conclusion, we are not at liberty to reverse its finding.

39

We also note that, despite Georgetown's contentions to the contrary, the question of whether the University is liable for damages arising from the TMJ surgery was properly submitted to the jury. Dr. Catane testified that the TMJ surgery, and the permanent injury resulting from that surgery, were the direct result of Bethesda's negligence in performing the orthognathic surgery. It was for the jury to decide whether that TMJ surgery had a sufficient causal connection to G.U.'s negligence that the University should be held liable for it.

V.

Damages Award

40

The question of an improper jury verdict is subject to the review of the trial judge, in the first instance, and substantial weight must be given to his discretion in reviewing the evidence. The trial court's decision, however, is subject to reversal where, based upon the relevant evidence, the jury award was obviously the product of an improper motive. See Virginia Railway Co. v. Armentrout, 166 F.2d 400, 407-08 (4th Cir.1948); Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 200-201 (4th Cir.1982). The University argues that, given the relevant evidence, the finding that $1 million of damages was attributable solely to the negligence of the University, with only $100,000 resulting from the negligently performed Bethesda surgery, resulted from an improper jury motive.

41

The trial court upheld the jury's findings with respect to damages, stating that the allocation might be explained by the fact that the jury found G.U.:

42

was the most liable party because they were the but for cause. If Georgetown had not embarked on an improper treatment plan and disrupted Mrs. Henry's bite, she would not have needed surgery from Bethesda.

43

Secondly, the jury may have found Georgetown more liable for Mrs. Henry's pain and suffering because they caused her more emotional distress [because of their callous treatment of Mrs. Henry].

44

While both of these reasons may explain the jury's feeling that G.U. should pay more than the United States, they do not explain the finding that only $100,000 of the damages resulted from the Bethesda surgery. This finding is particularly curious, not only because of the evidence introduced at trial describing in some detail exactly what pain and suffering resulted from the surgery, but also because of the jury's finding that G.U. was liable for the damages arising from that surgery. This finding meant that no matter how the jury allocated the damages among the various medical causes, G.U. was going to pay all of those damages. The jury's obvious disregard for the evidence in allocating damages, therefore, appears to be a deliberate effort to ensure that the court would make Georgetown pay the bulk of the money awarded to Mrs. Henry. In this sense, the jury's findings are the improper result of prejudice against the University. For this reason, we remand the case for a new trial on the amount of damages sustained by Mrs. Henry as well as the question of what portion of those damages were attributable to the University's treatment of Mrs. Henry and what portion resulted from the Bethesda surgery.

VI.

Henry Children's Cause of Action

45

The district court's dismissal of the Henry children's claim for the negligent infliction of emotional distress was proper in light of this court's decision in El-Meswasi v. Washington Gas Light Co., 785 F.2d 483 (4th Cir.1986). That decision held that the law of Virginia, as set forth by the Virginia Supreme Court in Hughes v. Moore, 197 S.E.2d 214, 219-20 (1973), allows only one who was in the zone of physical danger created by the defendant's alleged negligence to recover for the infliction of emotional distress. 785 F.2d at 488. The Henry children, obviously, were not in this zone, and therefore are not entitled to maintain their action.

VII.

Conclusion

46

For the reasons set forth herein, we affirm the district court's exercise of personal jurisdiction over Georgetown and its dismissal of the Henry children's cause of action. We also affirm the jury's finding that the University was liable for the Bethesda surgery. We decline to rule upon Georgetown's equal protection claim because we find that even if it was error for the district court to fail to rule on the applicability of the Virginia Medical Malpractice Review Act, the error was harmless.

47

Finally, finding that the jury's allocation of damages resulted from undue prejudice against the University, we remand this case for a new trial on the issue of damages.

48

AFFIRMED IN PART, REVERSED IN PART, REMANDED IN PART.

1

An occlusal splint is a plastic wafer, placed between the upper and lower jaws, for the purpose of allowing disturbed mastication muscles to relax

2

When the Medical Malpractice Review Act was originally enacted the bill passed by the legislature stated:

Whereas, the General Assembly has determined that it is becoming increasingly difficult for health care providers of the Commonwealth to obtain medical malpractice insurance with limits at affordable rates in excess of $750,000, and

Whereas, the difficulty, cost and potential unavailability of such insurance has caused health care providers to cease providing services or to retire prematurely and has become a substantial impairment to health care providers entering into Practice in the Commonwealth and reduces or will tend to reduce the number of young people interested in or willing to enter health care careers; and

Whereas, these factors constitute a significant problem adversely affecting the public health safety and welfare which necessitates the imposition of a limitation on the liability of health care providers in tort actions commonly referred to as medical malpractice cases.

Act of April 9, 1976, Ch. 611, 1976 Va.Acts of Assembly 784.