# Naccash v. Burger

> Supreme Court of Virginia · April 30, 1982 · 223 Va. 406

URL: https://www.frixlaw.com/law-library/cases/9598134

## Case

- **Full name:** Edmund P. Naccash, M.D. v. Joseph Burger, Et Al.
- **Court:** Supreme Court of Virginia
- **Decided:** April 30, 1982
- **Citations:** 223 Va. 406; 290 S.E.2d 825; 1982 Va. LEXIS 220
- **Precedential status:** Published
- **Opinion:** Dissent by Compton
- **Judges:** Carrico, Cochran, Poff, Compton, Thompson, Stephenson
- **Cited by:** 126 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9598134

## How later opinions describe it (automated extraction)

- concluding plaintiffs’ emotional distress was “direct result of wrongful conduct”; “it would be wholly unrealistic to say that the [plaintiffs] were mere witnesses to the consequences of the tortious conduct involved in this case”
- holding that the evidence supporting the fourth factor, power of control, was sufficient to support the jury’s finding that a master-servant relationship existed between a physician and a laboratory technician
- holding that, in a misdiagnosis case, where the misdiagnosis was a breach of duty and caused an actionable injury, the victims are entitled to damages that are the “reasonable and proximate consequences,” which a reasonable person could have foreseen
- finding that a laboratory owed a duty of reasonable care to the plaintiffs in the handling of blood withdrawn for Tay-Sachs testing on grounds different from § 323
- recognizing cause of action for wrongful birth in Virginia, which, though novel, involved an application of traditional tort principles of negligence to be evaluated by the courts and not the legislature

## Opinion text

COMPTON, J.,
dissenting in part.
I would allow recovery of the expenses incident to burial of the child and thus would affirm the judgment of the trial court without modification.
*422 In excising the costs of the child’s funeral and grave marker from the expenses allowed, the majority employs inconsistent reasoning. It is illogical, for the majority to say that expenses of care and treatment due to the wrongful birth are recoverable and in the same breath deny recovery of the burial expenses, when without the wrongful birth there would have been no death, necessitating the expense of burial.
In my opinion, the jury properly was allowed to determine whether, in the language of the damage instruction given in this case, the funeral expenses “proximately resulted” from the defendant’s negligence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9598134. Public record. Not legal advice.