Virginia Judge Says Medical Malpractice Law Does Not Apply to Sexual Abuse Claims

Article

Most of the claims of sexual abuse and other mistreatment made in a lawsuit by dozens of former patients of a Virginia children`s hospital can move forward, a judge has ruled, rejecting arguments that many of the allegations were time-limited under the state`s medical malpractice law.

Judge Bradley Cavedo issued the ruling Aug. 14 in favor of most of the dozens of plaintiffs who are suing publicly traded health care company Universal Health Services Inc. and its co-defendants. His decision came two weeks after a hearing on the matter in Richmond Circuit Court, where attorneys for UHS, related corporate entities and the doctor at the center of many of the allegations urged him to whittle down the claims.

“I think it is an incredibly important decision but ultimately a decision that we expected and anticipated would go this way,” said Kevin Biniazan, an attorney for the plaintiffs, all former patients of the Cumberland Hospital for Children and Adolescents east of Richmond.

The lawsuit was filed in October 2020 by 20 plaintiffs and later amended to add about two dozen more. The former patients at the New Kent County facility make a range of claims, including: sexual or physical abuse, negligence, and the falsification of medical records and diagnoses to prolong their stays.

According to court records, 37 of the plaintiffs specifically allege they were touched inappropriately by Dr. Daniel Davidow, the facility`s former longtime medical director, during medical examinations. Attorneys for Davidow, who is facing separate criminal charges but has not been convicted of a crime, have denied the allegations.

The parties in the matter before Cavedo were at odds, in part over whether allegations of sexual misconduct in a medical setting should be covered under the malpractice law’s two-year statute of limitations, or the 20-year window laid out in a statute dealing with childhood sex abuse claims. UHS and its co- defendants argued that the vast majority of plaintiffs had waited too long to bring their claims.

But Cavedo found that the malpractice law doesn`t apply “as there is no basis in health care or malpractice that would include the sexual assault as alleged by plaintiffs.”

“The factual allegations of the plaintiffs’ pleadings address conduct unrelated to any health care or professional service that Cumberland and its staff — including Doctor Davidow — should have rendered to each plaintiff individually,” he wrote.

Cavedo did rule that two plaintiffs, identified only as J.L.E. and K.T., were time-barred from bringing their claims, saying they should have done so earlier.

Biniazan said he planned to file Monday for reconsideration of Cavedo`s decision regarding J.L.E and K.T.

Joseph Farchione, an attorney representing the hospital and UHS, said the judge`s ruling and potential next steps by his clients were under consideration.

“We are in the process of reviewing our options, and at this point, no decision has been made,” he wrote in an email.

Attorneys representing Davidow in the civil suit did not respond to emailed requests for comment.

Attorney Mike Herring of McGuireWoods, who previously served as Richmond`s top prosecutor, argued the case before Cavedo for UHS of Delaware, a subsidiary of UHS Inc.

In asking Cavedo to pare back the claims, he said the General Assembly has carved out exceptions to the Virginia Medical Malpractice Act`s statute of limitations, such as in cases involving cancer and the discovery of foreign objects. But he added: “The General Assembly has never excluded claims for sexual assault.”

In court documents, the plaintiffs` attorneys said the defendants were adopting an “extreme position.”

Alleged sexual abuse of a minor should never be argued to be the same as medical malpractice, Biniazan said in court.

The lawsuit, which has previously survived an attempt by the defendants to have it tossed, has been set for a jury trial next September, court records show.

Davidow —who served as the medical director for Cumberland Hospital from 1996 until 2020, according to court records — appeared in a New Kent County court Monday for a status hearing. A judge set a five-day trial for April on the charges he faces: two counts of aggravated sexual battery and two counts of object sexual penetration, all felonies.

Biniazan has said the charges are connected to allegations raised by two of his clients.

Davidow was accompanied Monday by around a dozen supporters. His attorney, Craig Cooley, said they were a mix of family and professional connections and noted that they attended voluntarily, not because they were summoned. He otherwise declined comment and said Davidow would have no comment.

Scott Renick, the New Kent County commonwealth`s attorney, is handling the case after the office of Virginia Attorney General Jason Miyares voluntarily handed off its jurisdiction last year. The move surprised some legal observers, as Miyares has repeatedly sought to expand the role of his office in criminal prosecutions.