93 Va. Cir. 262
Fairfax Cir. Ct.2016Background
- Ashley Brown sued obstetrician Dr. Hunter S. Tashman and his practice for medical malpractice, alleging negligent care related to Rh alloimmunization that injured her and her third child; complaint filed July 24, 2014.
- Brown had an Rh-negative blood type and became sensitized (titer 1:64) after delivery of her second child in May 2009; Dr. Tashman administered one RhoGAM dose in 2009 but not a postpartum second dose.
- During Brown’s third pregnancy (prenatal care beginning Dec. 2011), tests in Jan. 2012 confirmed antibodies; expert testimony established fetal injury first occurred around March 2012 (16–20 weeks) when maternal immunoglobulins crossed the placenta.
- The child born July 26, 2012, suffered significant neonatal complications (anemia, respiratory distress, hyperbilirubinemia, etc.).
- Defendants filed a plea in bar arguing Brown’s claim was time-barred under Va. Code § 8.01-243(A) because the underlying negligent act occurred in 2009; Brown countered that the cause of action accrued at injury in March 2012 and that the continuing treatment rule tolled accrual through delivery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did the cause of action accrue for the 2009 failure to give RhoGAM? | Accrual: date injury sustained (March 2012); suit timely. | Accrual: injury arose at negligent act in 2009 so claim is time-barred. | Accrual occurred in March 2012 when fetal injury first occurred; statute did not begin to run in 2009. |
| Does the continuing treatment rule apply to toll limitations for the 2012 injury? | Yes — Dr. Tashman provided continuous prenatal care tied to Rh alloimmunization from date of injury through delivery. | No — any continuous treatment ended after 2009; the 2011–2012 pregnancy began a new course of treatment, so rule doesn’t revive earlier claims. | Continuing treatment rule applies from date of injury (March 2012) through delivery (at least July 26, 2012), so the claim is timely. |
| Was sensitization in 2009 itself an ‘‘injury’’ triggering accrual? | Sensitization alone is not the injurious event leading to actionable harm absent fetal compromise. | Same factual premise but argues accrual should be tied to earlier act. | Sensitization in 2009 was not the actionable injury; injury required subsequent pregnancy and placental transfer, which occurred in 2012. |
| Was there continuous, uninterrupted treatment from 2009–2012 for the same condition? | Brown argues she did not receive care from other physicians and treatment for the condition continued into 2012. | Tashman points to a cessation of Rh-related care after 2009 (contraception visits) and that a new pregnancy restarted treatment. | Treatment relevant to the 2009 alleged negligence ceased after 2009; but treatment for the 2012 injury was continuous from injury through delivery, invoking the continuing treatment rule for that period. |
Key Cases Cited
- Nunnally v. Artis, 254 Va. 247 (1997) (wrongful-conception context: no cause of action exists until pregnancy occurs; accrual tied to injury that actually exists)
- St. George v. Pariser, 253 Va. 329 (1997) (statute runs from date of actionable injury, which may be later than initial negligent act when condition subsequently worsens)
- Chalifoux v. Radiology Assocs. of Richmond, 281 Va. 690 (2011) (continuing treatment rule delays accrual until conclusion of course of treatment for a particular condition)
- Grubbs v. Rawls, 235 Va. 607 (1988) (continuing-treatment rule applies where there is a continuous and substantially uninterrupted course of treatment)