Fraud in Medical Malpractice

December 5, 2023

Fraudulent behavior in the context of a medical malpractice case is not unheard of. However it is unusual. The court addressed such an issue in the case of Dell v. French, 38 Va. Cir. 91 (1995)

On December 21, 1991 Mrs. Dell was involved in an auto crash. In the early morning of December 22, 1991 Dr. French, neurosurgeon, mistakenly operated on the left side of Mrs. Dell’s brain. The right side was the part of the brain that was injured.

On December 23, 1991 a colleague of Dr. French’s performed a second surgery to correct the initial injury caused to the left side by the mistaken surgery.

On January 6, 1992 Dr. French attempted the first reduction of the right-sided subdural hematoma which presumably is the surgery that should have been performed on December 22, 1991.

Neither Dr. French nor anyone at the hospital notified the Dell family of the original surgical error. In contrast on December 27, 1991 Dr. French met with the family and advised them in a manner that was incomplete and misleading and was alleged by the plaintiff to cover up the fact of the initial surgical error and the injury it caused.

Fraud In Medical Malpractice

Application of the Cap

The case came before the court on a demurrer. A demurrer is a challenge to the sufficiency of the pleadings. In a demurrer the facts that are stated in the original suit papers are taken as admitted solely for purposes of ruling on whether or not the pleading itself is sufficient to allow the case to proceed forward.

The court held that the purposeful misrepresentation of material facts which may be fraud is not encompassed within the definition of medical malpractice. Peterson v. Fairfax Hospital, 31 Va. Cir. 50 (1993) However the nondisclosure of material facts alone may be encompassed within the definition of medical malpractice.

In the Peterson case, the court looked at the case of Hagan v. Antonio, 240 Va. 347 (1990) In addition the court noted that a rape or a robbery could never be medical malpractice. Such actions could never arguably be classified as an inseparable part of the examination or treatment.

Fraud In Medical Malpractice-Part of the Treatment?

In the Dell case, the court agreed with the plaintiff. That is to say the purposeful misrepresentation could never be classified as an inseparable part of the examination or treatment of the patient. Therefore it was not subject to the medical malpractice cap.

Reach Out to an Experienced Medical Malpractice Lawyer in the DMV Area

Brien Roche

Brien A. Roche has been an attorney since 1976. Mr. Roche is admitted to practice in Virginia, the District of Columbia, and Maryland. In addition to his busy law practice, Mr. Roche is also a published author of several books & articles relating to the practice of law.

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