Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and 

Goodwyn, JJ., and Carrico, S.J. 

JAN PAUL FRUITERMAN, M.D., ET AL. 

v. Record No. 071894 OPINION BY JUSTICE CYNTHIA D. KINSER 

October 31, 2008 

JULIE GRANATA 

JOSEPH GRANATA 

v. Record No. 071897 

JAN PAUL FRUITERMAN, M.D., ET AL. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jonathan C. Thacher, Judge 

In these wrongful birth cases filed by the parents of twin 

daughters afflicted with Down syndrome, the circuit court 

sustained a jury verdict in favor of the mother. We will 

reverse that judgment because the evidence was insufficient as 

a matter of law to prove the element of proximate causation. 

With regard to the father’s case, the circuit court granted a 

motion to strike the evidence because the father failed to 

prove a physician-patient relationship. We will affirm that 

judgment. 

I. PROCEDURAL HISTORY 

Julie Granata and Joseph Granata (the Granatas) each filed 

a separate but identical motion for judgment in the circuit 

court, alleging that Jan Paul Fruiterman, M.D., Eleni SolosKountouris, M.D., and their professional corporation, Drs. 
Fruiterman and Solos-Kountouris, P.C. (collectively, the 

Doctors), undertook to provide obstetrical services and 

prenatal care to the couple, thereby establishing a physicianpatient relationship with both Julie and Joseph. The Granatas 

further alleged that the Doctors breached the standard of care 

by failing to provide Julie with information about first 

trimester testing known as chorionic villus sampling (CVS),1

which would have revealed that her twin fetuses were afflicted 

with Down syndrome. Additionally, the Granatas alleged that, 

if Julie had known about the condition of her fetuses during 

the first trimester, she would have elected to terminate the 

pregnancy. As a direct and proximate result of the Doctors’ 

alleged negligence, Julie and Joseph claimed damages for, among 

other things, mental and emotional distress, medical and 

hospital bills for the care of the twins, and lost family 

income. 

The two actions were tried together before the same jury. 

In motions to strike both at the close of the Granatas’ 

evidence and at the close of all the evidence, the Doctors 

argued, among other things, that the Granatas failed to prove 

 

1

 CVS is a procedure by which a sample of the chorionic 

villi, or placental tissue, is obtained from the expectant 

mother and the cells are tested for genetic disorders such as 

Down syndrome. CVS may be performed between the tenth and 

thirteenth week of a pregnancy. 

2 
by expert testimony to a reasonable degree of medical 

probability that, if Julie had undergone CVS testing, the 

result would have been positive for Down syndrome. The Doctors 

also asserted that Joseph failed to prove the existence of a 

physician-patient relationship. Therefore, they argued his 

claim was, at most, only derivative of Julie’s claim. 

The circuit court took all the motions to strike under 

advisement and elected to decide them, if needed, after the 

jury returned verdicts. In separate verdicts, the jury found 

in favor of Julie and awarded damages in the amount of 

$4,000,000. The jury also found in favor of Joseph and awarded 

$500,000 in damages. 

In post-trial motions, the Doctors renewed their motions 

to strike the Granatas’ evidence. They also asked the circuit 

court to set aside the jury verdicts and either enter judgment 

in their favor or grant them a new trial. The Doctors 

alternatively moved the circuit court to reduce the verdicts in 

accordance with the statutory cap for recoveries in medical 

malpractice actions pursuant to Code § 8.01-581.15. 

At the post-trial hearing, the Doctors presented the same 

arguments that they raised in the motions to strike the 

evidence. With respect to whether the Granatas proved by 

expert testimony that the results of CVS would have been 

positive for Down syndrome, the circuit court asked whether 

3 
“there was any evidence that if a CVS had been done it would 

have returned a positive result.” The Granatas acknowledged 

there was no such evidence in the record. Regardless, the 

circuit court overruled the Doctors’ motions and sustained the 

jury verdict in Julie’s favor. The court did, however, reduce 

the award to $1.6 million pursuant to Code § 8.01-581.15. 

With regard to Joseph, the circuit court granted the 

Doctors’ motion to strike and dismissed his case. In a letter 

opinion, the court concluded that, in the absence of an 

undertaking by Dr. Solos-Kountouris, Joseph was not a patient 

and could not reasonably have expected to be a patient as 

defined in Code § 8.01-581.1.2 The court explained, “[i]f 

someone who merely accompanied a patient on a visit to the 

patient’s physician was able to recover for emotional distress, 

the end result would be an extension of the physician’s 

liability beyond all reasonable or logical bounds.” 

The Doctors and Joseph filed separate appeals from the 

respective judgments of the circuit court. With regard to the 

Doctors’ appeal, the dispositive issue is whether Julie proved 

through expert testimony to a reasonable degree of medical 

probability that, if CVS testing had been conducted, the result 

 

2

 During the hearing on the Doctors’ post-trial motions, 

Joseph stipulated that the verdict in his favor against Dr. 

Fruiterman should be set aside because he had no interaction 

with Dr. Fruiterman on certain relevant dates. 

4 
would have shown the chromosomal abnormality associated with 

Down syndrome. Joseph assigns two errors to the circuit 

court’s judgment. He first claims the court erred in ruling 

that he failed to prove a physician-patient relationship with 

Dr. Solos-Kountouris or her professional corporation. Second, 

Joseph asserts that the court erred in failing to find that 

Dr. Solos-Kountouris undertook to provide health care to him by 

advising about genetic testing. 

We will now present the relevant facts and then address 

the issues raised in each appeal, starting with the Doctors’ 

appeal. 

II. DOCTORS’ APPEAL 

A. Relevant Facts 

In February 2002, Julie met with Dr. Solos-Kountouris for 

pre-conception counseling and a gynecological examination. Dr. 

Solos-Kountouris discussed the risks associated with conceiving 

a child when the mother is past the age of 35, in particular 

the risk of having a fetus with a chromosomal abnormality.3 

According to Dr. Solos-Kountouris, she emphasized the 

 3

 Julie was 37 years of age at the pre-conception 

appointment with Dr. Solos-Kountouris. 

5 
importance of screening tests, including CVS and amniocentesis,4

and explained how such procedures are performed, the risks 

associated with them, and the time frame during a pregnancy 

when the mother can undergo the tests. 

Julie’s testimony about the initial appointment differed 

from that of Dr. Solos-Kountouris. Julie stated that Dr. 

Solos-Kountouris discussed and recommended only amniocentesis. 

Julie testified about how she explained to Dr. Solos-Kountouris 

that, since amniocentesis is performed 16 to 18 weeks into the 

pregnancy, she felt the pregnancy would be too far along to 

terminate if the procedure revealed an abnormality. According 

to Julie, after the first trimester she would feel and look 

pregnant, and “it’s a baby, not a fetus” at that point. To 

Julie, “anything past the first trimester is . . . when my 

responsibility is to manage the pregnancy.” 

Julie further testified that Dr. Solos-Kountouris told her 

amniocentesis was the “only way” to determine whether a fetus 

has a chromosomal abnormality. Moreover, Julie insisted that 

no one at the Doctors’ office mentioned CVS during either her 

initial appointment or her subsequent appointments. 

 

4

 During amniocentesis, a large needle is inserted into the 

amniotic sac and a small amount of the fluid is removed. The 

cells in the fluid are then tested to determine certain genetic 

disorders, such as Down syndrome. Amniocentesis is not 

performed earlier than the sixteenth week of a pregnancy. 

6 
Soon after the pre-conception counseling visit, Julie 

became pregnant and returned to the Doctors in March 2002 to 

confirm her pregnancy. At that appointment, she saw Dr. 

Fruiterman, who, like Dr. Solos-Kountouris, recommended that 

Julie undergo amniocentesis. According to Julie, she again 

rejected amniocentesis because, in her view, it is performed 

too far along in the pregnancy. 

Throughout her pregnancy, Dr. Fruiterman and Dr. SolosKountouris also recommended that Julie receive genetic 

counseling. Despite their recommendations, Julie never 

attended genetic counseling. Additionally, she never underwent 

amniocentesis, despite a positive alpha-fetoprotein blood test 

result in June 2002. The result signaled that the fetuses had 

a high risk for Down syndrome. In September 2002, Julie gave 

birth to identical twin girls, both of whom are afflicted with 

Down syndrome. 

At trial, Julie insisted that, if the Doctors had advised 

her about the availability of CVS either before or during the 

first trimester of her pregnancy, she would have undergone the 

test. Julie stated she would not have bonded with her fetuses 

before the test could have been performed. She further 

testified that, if the test result had been positive, meaning 

her twin fetuses were afflicted with Down syndrome, she “would 

have to have had a double abortion.”

7 
The Granatas presented testimony from two medical expert 

witnesses. The first witness, John Williams, III, M.D., an 

expert in the field of obstetrics and gynecology, testified to 

the standard of care for an obstetrician to inform his patients 

about the availability of CVS. In forming his opinions, 

Dr. Williams relied upon medical literature, one of which 

described amniocentesis and CVS as “definitive diagnostic 

test[s].” 

During cross-examination, Dr. Williams admitted that there 

is a possibility of receiving a false result from CVS, but 

claimed such a result is “extremely rare.” When asked if there 

are instances of positive CVS results that have been disproved 

by later tests indicating a fetus is normal, Dr. Williams 

explained that there are occasions when there is a “mixture of 

normal and abnormal cells, and in that situation better than 90 

percent of the time the fetus is not affected.” He also stated 

that about 1-in-100 patients would require a follow-up 

amniocentesis to “sort things out” after receiving a positive 

CVS. At no time during his testimony did Dr. Williams state 

his opinion as to whether CVS would have been positive for Down 

syndrome if Julie had undergone that test. 

Similarly, the Granatas’ other medical expert witness, 

Ronald J. Wapner, M.D., also an expert in the field of 

obstetrics and gynecology, expressed no opinion on that 

8 
particular issue. Dr. Wapner, like Dr. Williams, acknowledged 

that one of the risks associated with undergoing either CVS or 

amniocentesis is the possibility of having “false positives and 

false negatives, and sometimes information that just won’t be 

interpretable at all.” 

One of the Doctors’ witnesses, Mary E. D’Alton, M.D., who 

testified as an expert in the field of obstetrics and 

gynecology, stated there is a problem in using CVS in the case 

of twin fetuses because of the potential for “crosscontamination . . . between the placentas” or two samples from 

only one fetus. Thus, in her opinion, a 1-in-20 chance exists 

that a CVS in a pregnancy with twin fetuses will provide mixed 

information, thereby requiring further testing such as 

amniocentesis. Additionally, Dr. D’Alton testified that there 

is a “potential for misdiagnosis with CVS that is not there 

with amniocentesis.” 

B. Analysis 

In addressing the Doctors’ challenge to the sufficiency of 

the evidence to prove that, if Julie had undergone CVS, the 

result would have shown the chromosomal abnormality associated 

with Down syndrome, we apply established principles of 

appellate review. A plaintiff who is “[a]rmed with a jury 

verdict approved by the trial court, . . . stands in ‘the most 

favored position known to the law.’ ” Bitar v. Rahman, 272 Va. 

9 
130, 137, 630 S.E.2d 319, 323 (2006) (quoting Ravenwood Towers, 

Inc. v. Woodyard, 244 Va. 51, 57, 419 S.E.2d 627, 630 (1992)). 

When a trial court has refused to strike a plaintiff’s evidence 

or to set aside a jury verdict, the well-established standard 

of appellate review requires this Court to determine whether 

the evidence presented at trial, taken in the light most 

favorable to the plaintiff, was sufficient to support the jury 

verdict in favor of the plaintiff. Id. at 141, 630 S.E.2d at 

325-26. We will not set aside a trial court’s judgment 

sustaining a jury verdict unless it is “plainly wrong or 

without evidence to support it.” Code § 8.01-680; see also

Bitar, 272 Va. at 137, 630 S.E.2d at 323. 

In Julie’s wrongful birth case, as in any medical 

malpractice action, one of the elements that a plaintiff must 

prove is “a causal connection between the breach of duty and 

any claimed injury or damage.” Naccash v. Burger, 223 Va. 406, 

414, 290 S.E.2d 825, 829 (1982); see also Bryan v. Burt, 

254 Va. 28, 34, 486 S.E.2d 536, 539–40 (1997) (“[A] plaintiff 

must establish not only that a defendant violated the 

applicable standard of care, and therefore was negligent, the 

plaintiff must also sustain the burden of showing that the 

negligent acts constituted a proximate cause of the injury.”); 

Brown v. Koulizakis, 229 Va. 524, 532, 331 S.E.2d 440, 446 

(1985) (same). 

10 
Although the issue of proximate causation is normally a 

question of fact for the jury to determine, a court may decide 

the issue “when reasonable persons could not differ.” Jenkins 

v. Payne, 251 Va. 122, 128, 465 S.E.2d 795, 799 (1996); accord

Hadeed v. Medic-24, Ltd., 237 Va. 277, 285, 377 S.E.2d 589, 593 

(1989). Expert testimony is generally required to establish 

not only the appropriate standard of care and a deviation from 

the standard, but also “ ‘that such a deviation was the 

proximate cause of the claimed damages.’ ” Perdieu v. 

Blackstone Family Practice Ctr., Inc., 264 Va. 408, 420, 

568 S.E.2d 703, 710 (2002) (quoting Raines v. Lutz, 231 Va. 

110, 113, 341 S.E.2d 194, 196 (1986)); accord Bitar, 272 Va. at 

138, 630 S.E.2d at 323. 

In the case before us, Julie claimed the Doctors breached 

the standard of care by failing to inform her about the 

availability of CVS either prior to or during her pregnancy. 

She further alleged that, if she had known about CVS at a time 

during the pregnancy when she could have had the test, she 

would have done so and would have terminated her pregnancy if 

the result had been positive for Down syndrome. 

Julie, however, did not prove to a reasonable degree of 

medical probability that, if she had undergone CVS, the result 

would have shown the chromosomal abnormality indicative of Down 

syndrome. None of Julie’s medical expert witnesses opined 

11 
about what the result of CVS would have been if Julie had 

undergone the procedure. Moreover, the Granatas acknowledged 

before the circuit court that no such evidence existed in the 

record. Thus, Julie failed to establish that the Doctors’ 

breach of the standard of care was a proximate cause of the 

wrongful birth of her twin daughters. 

Julie, nevertheless, contends Dr. Williams’ testimony, 

read from medical literature that classified CVS as a 

“definitive diagnostic test,” provided the requisite proximate 

cause. Julie argues on appeal that the term “definitive” means 

CVS results would have been positive if she had undergone the 

procedure. We are not persuaded by her argument. The term 

“definitive” means “serving to supply a final answer, solution, 

or evaluation and to end an unsettled unresolved condition.” 

Webster’s Third New International Dictionary 592 (1993). The 

term does not signify that a certain answer will be provided; 

it indicates only that some answer will be ascertained. 

Because her twin daughters unquestionably have Down 

syndrome, Julie also contends she is entitled to an inference 

that if she had undergone CVS, the result would have been 

positive for Down syndrome. This is so, according to Julie, 

because in CVS, the laboratory technician has only to count the 

number of chromosomes to determine whether there is an extra 

12 
copy of chromosome 21, meaning the presence of Down syndrome. 

Again, we do not agree. 

This wrongful birth case is not one of those “rare 

instances” in which expert testimony is not required to prove, 

among other things, that breach of the standard of care was a 

proximate cause of the claimed damages. Beverly Enterprises 

Virginia, Inc. v. Nichols, 247 Va. 264, 267, 441 S.E.2d 1, 3 

(1994); see also Coston v. Bio-Medical Apps. of Va., 275 Va. 1, 

5, 654 S.E.2d 560, 562 (2008). Whether the result of CVS would 

have been positive for Down syndrome if Julie had undergone 

that procedure is not a matter within the common knowledge and 

experience of a jury. See Perdieu, 264 Va. at 420–21, 568 

S.E.2d at 710–11. Furthermore, the Granatas’ evidence from 

their medical expert witnesses showed that many patients 

require a follow-up amniocentesis after receiving a positive 

CVS. The Granatas, through their medical experts, also 

presented evidence about the risks of false positive and false 

negative results with CVS. 

Thus, we conclude that the circuit court erred in refusing 

to set aside the jury verdict in Julie’s favor.5 The judgment 

was without evidence to support it. Code § 8.01-680. 

 5

 In light of our decision, we will not address the 

Doctors’ other assignments of error. 

13 
III. JOSEPH’S APPEAL 

A. Relevant Facts 

With regard to the questions whether Joseph proved a 

physician-patient relationship with Dr. Solos-Kountouris and if 

not, whether Dr. Solos-Kountouris nevertheless undertook to 

provide Joseph with health care, Joseph acknowledges that he 

must rely on the events that transpired during Julie’s April 

19, 2002 appointment to establish that Dr. Solos-Kountouris 

owed him a duty of care. Joseph testified that he first 

accompanied Julie to the Doctors’ office on that date and 

conceded at trial and before this Court that all the alleged 

negligence occurred on or before April 19, 2002. Therefore, we 

focus on the facts surrounding Julie’s April 19, 2002 

appointment. 

In that regard, Joseph provided the only relevant 

testimony.6 During his direct examination, the following 

exchange occurred: 

Q. [Counsel for the Granatas] I direct your 

attention then, Mr. Granata, specifically to the date 

of April 19th. Do you recall anything at all that 

was significant? 

A. [Joseph] I do. April 19th was the first 

time I went to the doctor with Julie. It was at the 

 6

 Julie’s testimony confirmed that Joseph accompanied her 

to the April 19th appointment but provided no specific 

information concerning any interaction between Dr. SolosKountouris and Joseph. Dr. Solos-Kountouris did not mention 

Joseph in connection with the April 19th appointment. 

14 
Burke office. I remember going in the office and 

waiting in a chair next to Julie. 

We filled out some paperwork. We also filled 

out a genetic screening questionnaire, and then they 

came to get Julie and I started to walk back to be 

with her for the exam, and they asked me to wait 

outside until they would call me at a later time. 

Q. What happened then when they brought you 

back? 

A. I went back. Dr. Sol[o]s, myself and Julie 

were discussing her pregnancy. I remember discussing 

the genetic questionnaire. I remember when Julie was 

filling out the questionnaire my nephew had something 

called Prader-Willi, and Julie was writing down that 

it was a form of Down syndrome, and I remember 

telling her I don’t think it’s a form of Down 

syndrome. 

I wouldn’t put it there in a spot where it had, 

I guess, any genetic Down syndrome-related children 

or relatives. We spoke about that genetic screening 

sheet for a while. I remember the doctor mentioning 

amniocentesis. I remember that we talked about if the 

twins were in one egg or in two sacs . . . . 

Q. Can you tell us what Dr. Sol[o]s told the 

two of you when she was discussing the genetic 

screening form[?] 

A. When we were discussing the genetic 

screening form, I remember her asking some questions 

about my nephew, about my ethnicity. If there was 

any other history in my family background that had 

any kind of genetic disorder. 

Q. Why were you there at the appointment with 

Julie? 

A. Well, because I was – you know, we were a 

family. That was part of what we were going through 

together. This was my children as well. 

Q. What recommendations, if any, did Dr. 

Sol[o]s make to the two of you? 

15 
A. Again, I believe she recommended 

amniocentesis, and I believe she recommended a 

geneticist. 

Q. Let me ask you specifically if you can tell 

us whether or not the word “CVS” was mentioned by 

her. 

A. I never heard that word ever until after the 

twins were born. 

. . . . 

Q. Let me ask [w]hat was your reason for being 

there to discuss these issues? 

A. Because I was an active participant in the 

pregnancy. I wanted to support Julie, and I was 

seeking guidance from her doctors. 

Joseph gave the following relevant testimony during crossexamination: 

Q. [Counsel for the Doctors] When you attended 

the visit on April 19th, 2002, that was conducted by 

Dr. Sol[o]s-Kountouris, was advanced maternal age 

discussed? 

A. [Joseph] Yes. When I was in the room there 

was a portion of the time when I was outside. When I 

was invited into the room to discuss the 

questionnaire, that was certainly a topic that was 

discussed as well as the twins being a potentially 

high-risk pregnancy because of those things. 

Q. So the risks were discussed of this 

pregnancy? 

A. That’s correct. 

Q. You also, I think, indicated to us Dr. 

Sol[o]s-Kountouris discussed the possibility or 

recommended amniocentesis at that time; is that 

correct? 

16 
A. That’s correct . . . she also said there was 

plenty of time, but she wanted to put it out there so 

we had an opportunity to consider it. 

. . . . 

Q. Did Dr. Sol[o]s-Kountouris also talk to you 

about genetic counseling at that time? 

A. I remember the conversation about genetic 

counseling. I don’t remember specifically back and 

forth – it was during the time we were actually 

discussing the genetic questionnaire, and I remember 

questions about my nephew. I remember questions 

about my ethnicity. 

. . . . 

Q. And you participated in the completion of 

the genetic screening sheet on the April 19th visit? 

A. Could you define what you mean by 

“completion.” Did I help fill it out? Yes. 

Q. You provided input to that form? 

A. Yes. 

In addition to Joseph, two of the Granatas’ expert 

witnesses, Dr. Williams and Dr. Wapner, provided testimony 

relevant to the issues in Joseph’s appeal. They opined about 

the relationship between an obstetrician and a father. Dr. 

Williams did not consider a husband to be an obstetric patient 

because there is no treatment or service of an obstetrical or 

gynecological nature that can be provided to a male individual. 

Dr. Williams, however, did state that when a physician takes 

care of a pregnant woman, the physician is “taking care of a 

couple[, s]o in that case the husband is not specifically an OB 

17 
patient, but we’re taking care of the family.” According to 

Dr. Williams, when a husband accompanies “his wife as the 

husband,” they are “entitled to receive information regarding 

care of the pregnancy as well.” Dr. Wapner stated, “[W]hen 

you’re counseling about genetic risks to a fetus you are 

counseling the couple which includes – the woman and – and the 

man.” Finally, Dr. Williams acknowledged that, if the term 

“medical care” is defined as the “giving of advice,” then a 

husband should receive medical care. 

B. Analysis 

Although the circuit court granted the Doctors’ motion to 

strike the evidence in Joseph’s case, it did so after the jury 

had returned a verdict in his favor. Regardless, the standard 

of appellate review is the same: whether the evidence viewed in 

the light most favorable to the plaintiff is sufficient to 

sustain a jury verdict in favor of the plaintiff. Bitar, 272 

Va. at 141, 630 S.E.2d at 325-26. 

The decision as to whether a physician-patient 

relationship exists “is a question of fact, turning upon a 

determination whether the patient entrusted his treatment to 

the physician and the physician accepted the case.” Lyons v. 

Grether, 218 Va. 630, 633, 239 S.E.2d 103, 105 (1977). “A 

physician’s duty arises only upon the creation of a physician–

patient relationship; that relationship springs from a 

18 
consensual transaction, a contract, express or implied, general 

or special.” Id.; accord Washburn v. Klara, 263 Va. 586, 590, 

561 S.E.2d 682, 685 (2002) (“[T]he physician-patient 

relationship is a consensual one.”) (citing Pugsley v. 

Privette, 220 Va. 892, 899, 263 S.E.2d 69, 74 (1980)); see also

Harris v. Kreutzer, 271 Va. 188, 198, 624 S.E.2d 24, 30 (2006); 

Didato v. Strehler, 262 Va. 617, 626, 554 S.E.2d 42, 47 (2001). 

Joseph first argues he meets the definition of the 

term “patient” as defined in Virginia’s Medical 

Malpractice Act, (the Act), Code §§ 8.01-581.1 through -

581.20:1, and therefore, Dr. Solos-Kountouris owed him a 

duty of care as a patient. In relevant part, the term 

“ ‘[p]atient’ means any natural person who receives or 

should have received health care from a licensed health 

care provider.” Code § 8.01-581.1. Under the Act, the 

term “ ‘[h]ealth care’ means any act, professional 

services in nursing homes, or treatment performed or 

furnished, or which should have been performed or 

furnished, by any health care provider for, to, or on 

behalf of a patient during the patient’s medical 

diagnosis, care, treatment or confinement.” Code § 8.01-

581.1. 

Relying on these definitions and the testimony of Dr. 

Williams and Dr. Wapner, Joseph contends that a 

19 
physician’s advice about genetic testing constitutes 

“health care” under the Act and that Dr. Solos-Kountouris’ 

failure to advise about the availability of CVS was an 

“act . . . which should have been . . . furnished.” 

Code § 8.01-581.1. Continuing, Joseph asserts he was a 

person who should have received information from Dr. 

Solos-Kountouris about CVS and was, therefore, a 

“patient.” 

Joseph’s argument, however, ignores the language 

included at the end of the definition of “health care,” 

referring to any act or treatment which should have been 

furnished “during the patient’s medical diagnosis, care, 

treatment or confinement.” Code § 8.01-581.1 (emphasis 

added). As already noted, only the events that occurred 

during Julie’s April 19, 2002 appointment are relevant to 

the question whether Dr. Solos-Kountouris diagnosed, cared 

for, or treated Joseph, in addition to Julie, on that 

date. The facts surrounding the appointment, viewed in 

the light most favorable to Joseph, show that Joseph 

accompanied Julie to the Doctors’ office, assisted Julie 

in filling out the genetic screening questionnaire, and 

responded to questions from Dr. Solos-Kountouris about his 

family background as to genetic disorders. Joseph was 

excluded from the initial portion of Julie’s appointment 

20 
with Dr. Solos-Kountouris and was, in Joseph’s words, 

“invited into the room to discuss the questionnaire.” 

Although Dr. Solos-Kountouris discussed and/or 

recommended amniocentesis and genetic counseling, the 

evidence demonstrates her “diagnosis, care, [or] 

treatment” on that day was directed to Julie, not to 

Joseph. Code § 8.01-581.1. In other words, there is no 

evidence that Joseph “entrusted his treatment to [Dr. 

Solos-Kountouris] and the physician accepted the case.” 

Lyons, 218 Va. at 633, 239 S.E.2d at 105; cf. Gray v. 

INOVA Health Care Servs., 257 Va. 597, 599-600, 514 S.E.2d 

355, 356 (1999) (physician had no duty of care to the 

mother of a patient because the mother was not the 

physician’s patient upon whom the procedure was being 

performed and any negligence was a breach of duty to the 

patient, not the mother); Bulala v. Boyd, 239 Va. 218, 

230, 389 S.E.2d 670, 676 (1990) (stating that “the father, 

of course, was not the [obstetrician’s] ‘patient,’ within 

the meaning of the Act”); Dehn v. Edgecombe, 865 A.2d 603, 

615 (Md. 2005) (“A duty of care does not accrue purely by 

virtue of the marital status of the patient alone; some 

greater relational nexus between doctor and patient’s 

spouse must be established.”). 

21 
Furthermore, Joseph and Julie did not allege that the 

Doctors breached the standard of care by failing to advise 

them as a couple about genetic counseling or to recommend 

genetic screening tests that either Joseph alone or both 

of them would need to undergo. Instead, they asserted that 

the Doctors breached the standard of care by failing to 

inform Julie about the availability of CVS during the 

first trimester of her pregnancy. Obviously, Julie is the 

only person who could consent to and undergo that 

procedure. Information about CVS was not an “act . . . 

which should have been . . . furnished” to Joseph. Code 

§ 8.01-581.1. 

The medical expert witnesses’ testimony about what 

constitutes health care does not alter our conclusion. In the 

context of a pregnancy, a husband may be entitled to receive 

such information about a fetus’ risk of having genetic 

abnormalities. The question whether Joseph had a physicianpatient relationship with Dr. Solos-Kountouris, however, turns 

solely on the facts surrounding the April 19, 2002 appointment. 

See Lyons, 218 Va. at 633, 239 S.E.2d at 105. 

Thus, we conclude the evidence, as a matter of law, was 

insufficient to show “a consensual transaction giving rise to a 

physician-patient relationship and a duty to perform the 

service contemplated.” Id.; see also Harris, 271 Va. at 199-

22 
200, 624 S.E.2d at 30-31 (finding a limited physician-patient 

relationship exists in the context of a Rule 4:10 examination 

because the physician expressly consents to the relationship 

when he agrees to conduct the examination and the patient’s 

consent is implied); Prosise v. Foster, 261 Va. 417, 423, 544 

S.E.2d 331, 334 (2001) (refusing to impose a duty of care on an 

on-call physician in a teaching hospital in the absence of 

proof that the doctor agreed to accept responsibility for the 

care of the patient). 

Relying on this Court’s decision in Didato, Joseph next 

argues that even in the absence of a physician-patient 

relationship, Dr. Solos-Kountouris undertook to provide health 

care to him and was thus required to act in accordance with the 

standard of care. See Code § 8.01-581.20. In Didato, we noted 

the legal principle that “one who assumes to act, even though 

gratuitously, may thereby become subject to the duty of acting 

carefully, if he acts at all.” 262 Va. at 628, 554 S.E.2d at 

48 (quoting Nolde Bros. v. Wray, 221 Va. 25, 28, 266 S.E.2d 

882, 884 (1980)). The Court concluded the plaintiffs had “pled 

sufficient facts which, if proven at trial, would permit the 

finder of fact to conclude that the defendants assumed the 

duty” to provide health care. Didato, 262 Va. at 629, 554 

S.E.2d at 48. Additionally, we rejected “[t]he defendants’ 

contention that they could not assume a duty to a non-patient 

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to comply with the standard of care in Code § 8.01-581.20.” 

Id.

As we recognized in Didato, a physician can, in certain 

circumstances, affirmatively undertake to provide health care 

to an individual, who prior to that moment was not the 

physician’s patient, and thereby assume the duty to comply with 

the applicable standard of care. But see Code § 8.01-225. 

Such a scenario is in contrast to the more traditional 

situation where the patient “knowingly and voluntarily seeks 

the professional assistance of the physician, and the physician 

knowingly agrees to treat the patient.” Kelley v. Middle Tenn. 

Emergency Physicians, P.C., 133 S.W.3d 587, 593 (Tenn. 2004). 

Nevertheless, in the former circumstance, the physician-patient 

relationship arises by implication because “the doctor takes 

affirmative action to participate in the care and treatment of 

a patient.” Sterling v. Johns Hopkins Hosp., 802 A.2d 440, 455 

(Md. Ct. Spec. App. 2002); see also Lownsbury v. VanBuren, 762 

N.E.2d 354, 360 (Ohio 2002) (“[A] physician-patient 

relationship, and thus a duty of care, may arise from whatever 

circumstances evince the physician’s consent to act for the 

patient’s medical benefit.”). 

In Didato, the trial court sustained the defendants’ 

demurrers, so we based our decision solely on the plaintiffs’ 

pleadings. 262 Va. at 630, 554 S.E.2d at 49. We have not had 

24 
the occasion before today to decide whether particular evidence 

adduced at trial was sufficient to prove a physician undertook 

to provide health care to a non-patient, thereby assuming the 

duty to comply with the standard of care. We agree with the 

holding in Jenkins v. Best, 250 S.W.3d 680, 693 (Ky. Ct. App. 

2007), requiring a physician to “personally engage[] in some 

affirmative act amounting to a render[ing of] services to 

another.” Id. at 693 (second alteration in original; internal 

quotation marks omitted); see also Stanley v. McCarver, 92 P.3d 

849, 853 (Ariz. 2004) (in the absence of the traditional 

physician-patient relationship, the court nevertheless imposed 

a duty of care because the physician undertook, for 

consideration, to interpret the patient’s x-rays); Dekens v. 

Underwriters Laboratories Inc., 132 Cal. Rptr. 2d 699, 702 

(Cal. Ct. App. 2003) (in applying the “negligent undertaking 

doctrine,” the actor “must specifically have undertaken to 

perform the task that he is charged with having performed 

negligently, for without the actual assumption of the 

undertaking there can be no correlative duty to perform that 

undertaking carefully”). 

Applying these principles to Joseph’s claim that Dr. 

Solos-Kountouris affirmatively undertook to provide him with 

health care, we again conclude the evidence was insufficient as 

a matter of law. As demonstrated by our prior discussion, 

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Joseph did not establish an affirmative act by Dr. SolosKountouris during the April 19, 2002 appointment that would 

amount to the rendering of health care to Joseph. See Jenkins, 

250 S.W.3d at 693. Thus, Dr. Solos-Kountouris assumed no duty 

to comply with the applicable standard of care with regard to 

Joseph. We therefore hold that the circuit court did not err 

in granting the Doctors’ motion to strike the evidence in 

Joseph’s case. 

IV. CONCLUSION 

We will reverse the judgment of the circuit court in the 

Doctors’ appeal. The evidence was insufficient as a matter of 

law to prove to a reasonable degree of medical probability that 

if Julie had undergone CVS, the result would have been positive 

for Down syndrome. 

We will affirm the judgment of the circuit court in 

Joseph’s appeal. The evidence was insufficient as a matter of 

law to prove that either he had a physician-patient 

relationship with Dr. Solos-Kountouris or Dr. Solos-Kountouris 

engaged in an affirmative act amounting to the rendering of 

health care. 

Record No. 071894 – Reversed and final judgment. 

 Record No. 071897 – Affirmed.

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