Injured During Surgery in Virginia? Who Pays When Someone on the Surgical Team Makes the Mistake
An operating room is a team. There is the surgeon, but there are also nurses, surgical assistants, anesthesia providers and technicians, and they often work for different employers. When one of them makes a mistake that leaves a patient permanently hurt, the first legal question is not whether something went wrong. It is who is legally responsible for it.
A decision issued on September 15, 2026 by the Court of Appeals of Virginia, About Women OB/GYN, P.C. v. Joyner, shows how Virginia answers that question, and how the way a case is set up from the start can decide which defendants have to pay.
What happened to the patient
The facts below are taken from the court's opinion, which views the trial evidence in the light most favorable to the patient, who won at trial.
In 2019, she had a scheduled robotic-assisted hysterectomy at a Northern Virginia hospital to treat painful uterine fibroids. Her gynecologist, employed by the practice About Women OB/GYN, operated the robotic arms from a console about ten feet from the table. At the bedside was a registered nurse and licensed surgical assistant employed by the hospital, who had worked with the surgeon for more than 30 years.
To remove the fibroids, the team used an electrified wire loop that cuts tissue and seals blood vessels when a foot pedal sends current through it. The surgeon directed placement; the nurse controlled the pedal. The first fibroid came out without a problem. As the team repositioned for the second, the surgeon saw that the loop was loose and he could no longer see its tip. Before he could adjust, the nurse activated the device. Either he misheard an instruction to fire or he stepped on the pedal by accident.
The current cut the main artery to the patient's left leg and her left ureter, outside the area being operated on. She bled heavily, went into shock, and went into cardiac arrest before the team resuscitated her. Then a second error followed: responding surgeons tied off the damaged vessel, misidentifying it as one that supplied the bladder. It was the artery to her leg, and tying it off cut off circulation. She needed emergency surgery to reconstruct the artery and restore blood flow.
The patient was left with permanent nerve and tissue damage in her leg. She walks with a cane and can no longer hike or ride horses. She developed bladder incontinence and cognitive difficulties, and the event worsened her post-traumatic stress disorder.
A Fairfax County jury awarded her $2.5 million. The trial court reduced the judgment to $2.35 million, Virginia's medical malpractice cap for that date. The jury also found the vascular surgeon and his practice liable, jointly with the gynecologist and his practice.
What the Court of Appeals decided
The surgeon's practice has to pay for the nurse's mistake. Everyone agreed that firing the device before it was secure and in view broke the standard of care. The fight was over who answered for it. The patient's case against About Women OB/GYN was that the practice was vicariously liable for its "employees and agents," and the trial court let the jury decide whether the hospital-employed nurse was acting as the practice's agent under the direction of its surgeon. The Court of Appeals let that verdict against the practice stand. The practice's argument that the complaint had not properly raised the theory was waived because its appeal brief never developed it, and its argument that the theory needed expert proof failed, for the reason below.
No expert was needed to prove the nurse was careless. Virginia malpractice cases almost always require expert testimony that the provider broke the standard of care. There is a narrow exception when the negligence is something a jury can judge using common sense. The court held, "narrowly, under the unique facts presented," that this case fit the exception: a jury needs no medical training to conclude that you do not activate a device built to cut and burn the human body before it is in place and before you are told to. The court listed earlier Virginia examples of the same exception, including a surgeon who left a hypodermic needle in a patient, a doctor who forgot to perform one of two scheduled surgeries, and a nursing home employee who left food alone with a resident known to choke.
The verdict against the surgeon personally was reversed. The patient's complaint accused the surgeon of his own negligence, but it never alleged that he was responsible for the nurse. Because the jury was nonetheless instructed that it could hold him liable for the nurse's acts, and there was no way to tell which theory the jury used, the court sent the claim against him back for further proceedings on his own conduct only. The judgment against his practice still stands.
One caution: the opinion is not designated for publication, so it does not bind other Virginia courts. It is still a clear picture of how Virginia's appellate court applies long-standing rules to a surgical injury.
Where the lines fall
| Question | What Joyner shows |
|---|---|
| A hospital-employed nurse made the error while working under the surgeon's direction. Can the surgeon's practice be held responsible? | It was here. The jury was allowed to decide whether the nurse was acting as the practice's agent, and the verdict against the practice was affirmed. |
| Does the patient always need an expert to prove the nurse was negligent? | Not when the error is within a jury's common knowledge, such as firing a cutting device before it is placed. The court called this a rare exception. |
| Can the surgeon personally be held liable for the nurse? | Only if the complaint pleads that theory. Here it did not, so that part of the verdict was reversed. |
| Can other doctors who make things worse also be liable? | Yes. The jury also found the vascular surgeon and his practice liable, jointly and severally. |
| Is the recovery capped? | Yes. Virginia caps the total recovery in a malpractice case, including medical bills and lost wages. The $2.5 million verdict became a $2.35 million judgment. |
What this means if you were hurt during surgery in Virginia
Look at everyone in the room, and who employed them. A surgical injury may involve a surgeon's practice, a hospital, an outside anesthesia group and other physicians who responded afterward. In Joyner, the verdict against the practice stood even though the nurse was on the hospital's payroll, on the theory that he was working under the practice's surgeon, and the jury also found a separate vascular surgery group liable. Identifying each responsible party matters in any serious case, and especially in Virginia, where the cap limits what can be collected.
The complaint has to say it. The verdict against the surgeon personally was lost not because the evidence was weak, but because the complaint never alleged that he was responsible for the nurse. Every theory of responsibility against every defendant needs to be in the pleading from day one.
Understand the cap before you value the case. Virginia's cap under Code § 8.01-581.15 applies to the entire recovery, not just pain and suffering, and the figure is fixed by the date of the malpractice. For malpractice on or after July 1, 2026, it is $2.75 million. We explain the full schedule in our post on Virginia's medical malpractice cap.
The rules are different next door. Maryland caps only non-economic damages in malpractice cases and leaves medical bills and lost wages uncapped (see our Maryland malpractice cap explainer). The District of Columbia has no cap at all, as we discussed in our post on a $4 million D.C. malpractice verdict. When surgery happens in one jurisdiction and a patient lives in another, where the case is brought can matter.
Talk to someone about your surgery
If you or someone in your family was seriously injured during an operation in Virginia, Maryland or the District of Columbia, the questions of who was in the room, who employed them and what went wrong are worth answering early, while records and memories are fresh.
Posey Lebowitz PLLC handles serious injury and medical malpractice cases in Virginia, Maryland and D.C. Call us at (202) 524-0123 or use our contact form for a free consultation.
This article is general information, not legal advice about your case.
