Jeff Charles Hammer, M.D. v. D.S., Crystal Senecal
67 Va. App. 388
| Va. Ct. App. | 2017Background
- D.S., born extremely preterm on Dec. 4, 2007, suffered neonatal distress (bradycardia, flaccidity) and required immediate resuscitation and prolonged NICU care; later diagnosed with spastic diplegic/mild cerebral palsy and borderline-to-mild cognitive impairment.
- Claimant (D.S. and mother) sued prenatal caregivers for medical malpractice; defendants (physicians) sought transfer to the Virginia Birth-Related Neurological Injury Compensation Act (the Act) process to obtain statutory immunity and fund compensation.
- Circuit court referred the case to the Workers’ Compensation Commission as required by statute; a three-physician panel (maternal-fetal medicine, neonatology, developmental pediatrics) examined records and reported that the neurological injury was present but attributable to prematurity/immature lungs, not oxygen deprivation during labor/delivery; panel also concluded claimant was not permanently in need of assistance for all activities of daily living.
- A deputy commissioner heard conflicting live testimony from experts, credited panel/obstetric testimony over defendants’ experts, and denied Act coverage; the full Commission unanimously affirmed, finding the statutory presumption applied but was rebutted (injury due to prematurity and claimant not permanently dependent for all ADLs).
- Defendants appealed, arguing (1) the Commission misinterpreted the timing language in Code § 38.2-5001 (scope of ‘‘resuscitation’’), and (2) the Commission erred in finding the evidence sufficient to rebut the statutory presumption and to prove the extent of disability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Proper temporal scope for "birth-related neurological injury" under Code § 38.2-5001 (when oxygen deprivation must occur) | The injury occurred from prematurity, not from oxygen deprivation during labor/delivery; statute should be read to require deprivation during labor/delivery or resuscitation necessitated by such deprivation | The statute allows coverage where resuscitation occurs in the immediate post-delivery period even if deprivation did not occur during labor/delivery; the 1999 retroactive sentence supports a broader timing | Court held the 2003 statutory language controls: deprivation must occur during labor/delivery (or resuscitation necessitated by deprivation that occurred in labor/delivery); the Commission’s interpretation was correct |
| 2) Sufficiency of evidence to rebut statutory presumption and to prove extent of lifelong dependence | Claimant and Fund: credible medical evidence (panel report and experts) shows injury from prematurity and that claimant will not be permanently dependent for all ADLs, thus rebutting presumption | Defendants: their experts showed oxygen deprivation during labor/delivery and permanent dependence, so Commission should have applied the Act and granted immunity | Court held Commission’s factual findings were supported by credible evidence (gave deference to Commission on conflicting expert opinions); presumption was rebutted and claimant not permanently dependent |
Key Cases Cited
- Central Virginia Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 42 Va. App. 264, 590 S.E.2d 631 (Va. Ct. App. 2004) (describes Act’s no-fault remedy and immunity framework)
- Wolfe v. Virginia Birth-Related Neurological Injury Comp. Program, 40 Va. App. 565, 580 S.E.2d 467 (Va. Ct. App. 2003) (explains statutory rebuttable presumption and burden shift)
- Berner v. Mills, 265 Va. 408, 579 S.E.2d 159 (Va. 2003) (affirms Commission’s exclusive jurisdiction to decide Act applicability)
- Rusty’s Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 510 S.E.2d 255 (Va. Ct. App. 1999) (establishes appellate deference to Commission findings of fact)
- Boyd v. Commonwealth, 216 Va. 16, 215 S.E.2d 915 (Va. 1975) (presumption that legislative amendment effects change in law)
Disposition: Commission affirmed; defendants’ petition for relief under the Act denied; case remains a malpractice action rather than Act claim.