HEATHER HARRIS v. MICHAEL DIMATTINA, M.D., ETC., ET AL.; ROBERT E. CUMBERLAND v. O. RILEY BOONE, M.D., ET AL.
Record No. 941410; Record No. 941923
Supreme Court of Virginia
September 15, 1995
Tara M. McCarthy (Slenker, Brandt, Jennings & Johnston, on brief), for appellees. Record No. 941410
Amicus Curiae: (Benjamin W. Glass, III, on brief), in support of appellant. Record No. 941410
Robert H. Hovis, III, for appellant. Record No. 941923
Tara M. McCarthy (Slenker, Brandt, Jennings & Johnston, on brief), for appellee John H. Cook, III, M.D. Record No. 941923
Gerald R. Walsh (James E. Fagan, III, on brief), for appellees O. Riley Boone, M.D.; Thomas J. Gates, M.D., and Loudoun Surgical Associates, Ltd. Record No. 941923
JUSTICE KEENAN delivered the opinion of the Court.
In these appeals of judgments entered in medical malpractice actions, we consider whether the trial courts erred in sustaining pleas of the statute of limitations. The parties in both cases agree that the two-year limitation of
Prior to its amendment in 1993, former
No action may be brought for malpractice against a health care provider unless the claimant notifies the health care provider in writing . . . prior to commencing the action. . . . The claimant or health care provider may within sixty days of such notification file a written request for a review by a medical malpractice review panel. . . . No actions based on alleged malpractice shall be brought within ninety days of the notification by the claimant to the health care provider and if a panel is requested within the period of review by the medical review panel.
Effective July 1, 1993, that section was amended to delete the requirement that a notice of claim be filed prior to filing a malpractice action against a health care provider. Acts 1993, ch. 928. Before its repeal effective July 1, 1993, Acts 1993, ch. 928, former
The giving of notice of a claim pursuant to § 8.01-581.2 shall toll the applicable statute of limitations for a period of 120 days from the date such notice is given, or for 60 days following the date of issuance of any opinion by the medical review panel, whichever is later.
Although these appeals involve common questions of law, their procedural histories differ substantially. Therefore, we describe them separately.
HARRIS v. DIMATTINA
Heather Harris alleged that she suffered damages from medical malpractice occurring on July 15, 1991. On July 13, 1993, Harris mailed a notice of claim, pursuant to former
Harris filed her motion for judgment on October 26, 1993. DiMattina then filed a motion to dismiss, arguing that Harris‘s claim was barred by the two-year statute of limitations.
CUMBERLAND v. BOONE
Robert E. Cumberland alleged that he was injured during surgery performed on November 27, 1990, and during follow-up care continuing through January 9, 1991. He filed a notice of claim on December 2, 1992, alleging medical malpractice committed by O. Riley Boone, M.D., Thomas J. Gates, M.D., Loudoun Surgical Associates, Ltd., John H. Cook, III, M.D., Russell McDow, M.D., and Loudoun Hospital Center (collectively, Boone). Thereafter, certain defendants requested a medical malpractice review panel. The review panel hearing was held on September 10, 1993, and the panel rendered its opinion on that date.
On November 4, 1993, Cumberland filed a motion for judgment against Boone, who filed a special plea asserting that Cumberland‘s action was barred by the two-year statute of limitations. Boone argued that, under
PROCEDURAL PROVISIONS
To resolve these appeals, we first must determine whether the statutory provisions at issue are procedural or substantive in nature. This distinction is central to our inquiry, because
In Morrison v. Bestler, 239 Va. 166, 387 S.E.2d 753 (1990), we described the notice of claim and the tolling provisions as procedural in nature. We stated that
[t]he Virginia General Assembly has enacted certain procedures for the prosecution of [medical malpractice claims]. These procedures include the notice of claim, a waiting period for filing suit, the right to a malpractice review panel prior to a court proceeding, use of the opinion of the panel, and extensions of statutory filing limitations under certain conditions. . . . . All these procedural requirements . . . were formulated to provide the defendant with adequate notice of the nature of the claim, to assist the parties in case preparation, and to encourage settlement prior to trial.
Id. at 172-73, 387 S.E.2d at 757. See also Hewitt v. Virginia Health Servs. Corp., 239 Va. 643, 645, 391 S.E.2d 59, 60 (1990). In accord with this explanation, we hold that former
Because
Harris argues that, pursuant to
No new law shall be construed to repeal a former law, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture, or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture, or punishment so incurred, or any right accrued, or claim arising before the new law takes effect; save only that the proceedings thereafter had shall conform, so far as practicable, to the laws in force at the time of such proceedings . . . . (Emphasis added.)
We apply the above language in the context of our holding that the statutory provisions at issue are procedural in nature. Since Harris acquired no vested right in these procedural statutes, their repeal or amendment did not operate to repeal or in any way affect any act done, any right accrued, or any claim arising under the former law. Moreover, Harris retained her substantive right of action against DiMattina after the 1993 enactments took effect. Thus, the first part of
Instead, since we are dealing with purely procedural provisions, we look to the language highlighted above, which addresses the effect that a new law has on the proceedings in a case. This language sets forth the general rule that such proceedings shall conform to the law in effect on the date the proceedings are conducted. In Harris‘s case, the proceedings conformed to the terms of the 1993 enactments, which were in force at the time the trial court ruled on DiMattina‘s motion to dismiss. Thus, we conclude
This exception is set forth in
[A]ll provisions of this title shall apply to causes of action which arose prior to the effective date of any such provisions; provided, however, that the applicable law in effect on the day before the effective date of the particular provisions shall apply if in the opinion of the court any particular provision (i) may materially change the substantive rights of a party (as distinguished from the procedural aspects of the remedy) or (ii) may cause the miscarriage of justice. (Emphasis added.)
Harris argues that, pursuant to
Under
We first examine whether application of the 1993 enactments materially changed any of Harris‘s substantive rights. As used in
We next consider whether a miscarriage of justice resulted from the trial court‘s failure to apply the law in effect on June 30, 1993. Harris argues that she relied on Turner and Baker in following the statutes in effect on the date her cause of action arose. Therefore, she contends that dismissal of her action resulted in a miscarriage of justice, because she acted in accordance with the law expressed in those cases. We disagree, because the holdings in those cases are inapposite to the issue before us.
In Turner, we held that the defendant professional corporation was not a “health care provider,” as defined by the 1986 version of former
In contrast, Harris did not have a vested right in the application of former
Harris‘s reliance on Baker is based on a footnote in that opinion which states, “Because the alleged negligence in this case occurred prior to the effective date of the [1982] amendment [to
First, neither party in Baker argued that the 1982 amendment applied to that case. The trial court‘s judgment order was entered in September 1981, well before the date of the legislative enactment amending the statute. Id. at 10, 307 S.E.2d at 235. Thus, the issue whether the new provisions applied was not before the trial court or this Court and was not part of our holding in that case.
Second, the holding in Baker is wholly unrelated to the present issue. We addressed only the question whether the words “toll the applicable statute of limitations,” as used in former
Finally, we agree with the trial court‘s observation that Harris could have filed a motion for judgment instead of a notice of claim on July 13, 1993, a date within the original two-year limitation period. Therefore, we hold that the trial court did not abuse its discretion in failing to find that Harris suffered a miscarriage of justice, and that the court did not err in sustaining DiMattina‘s plea of the statute of limitations and in dismissing Harris‘s action.
CUMBERLAND
We turn now to consider whether Cumberland‘s case falls within the statutory exception of
Cumberland argues that the trial court abused its discretion under
In response, Boone asserts that Cumberland cannot claim that application of the repeal provision left him no opportunity to preserve his rights by filing suit. Boone argues that Cumberland could have filed his motion for judgment beginning July 1, 1993, within the unexpired time remaining on the statute of limitations, and that application of the repeal provision does not result in a miscarriage of justice. Citing Starnes v. Cayouette, 244 Va. 202, 211-12, 419 S.E.2d 669, 674-75 (1992), Boone contends that he, rather than Cumberland, would suffer a miscarriage of justice if Boone is denied his right to rely on the repeal provision and its effect on the running of the statute of limitations. We disagree with the conclusion urged by Boone.
At the time Cumberland gave his notice of claim, former
We believe that application of the repeal provision to Cumberland‘s case would disrupt this carefully balanced statutory scheme and subject Cumberland to the disadvantage of the former notice of claim requirement, while denying him the intended compensatory benefit of the former tolling provisions. We conclude that such a result would constitute a miscarriage of justice.
As we stated in Baker, former
Although the General Assembly could have enacted a saving clause in its repeal of the tolling provisions, we do not believe that its failure to do so requires a different result.
This duty is not dependent on the presence of a saving clause in the new provision of law; in fact, the need to exercise this statutory duty is most plainly manifest in a case such as this, when no saving clause was enacted to preserve the original statutory balance. Therefore, we hold that a plaintiff who has given a notice of claim prior to July 1, 1993, pursuant to former
We also disagree with Boone‘s contention that Starnes v. Cayouette is contrary to our holding here. In Starnes, we held that the defendant had an enforceable right to rely on a statute of limitations which had expired before passage of legislation redefining the accrual date of a cause of action for sexual misconduct. 244 Va. at 204-05, 212, 419 S.E.2d at 670, 675. Unlike the defendant in Starnes, Boone did not acquire any such property right prior to the effective date of the repeal provision. Thus, application of former
For these reasons, we will affirm the trial court‘s judgment in favor of DiMattina, and we will reverse the trial court‘s judgment in favor of Boone and remand that case for further proceedings consistent with this opinion.
Record No. 941410 - Affirmed.
Record No. 941923 - Reversed and remanded.
JUSTICE LACY, dissenting in part.
Although Cumberland was precluded from filing a motion for judgment during the effective dates of the repealed provisions, that restriction was lifted on July 1, 1993. No longer was Cumberland required to wait until the medical malpractice review panel issued its decision before he could file his motion for judgment. After July 1, 1993, the only remaining restriction was that Cumberland file his motion for judgment within the two-year period allowed by the statute of limitations. The repealed statute had suspended the running of the limitation period. Baker v. Zirkle, 226 Va. 7, 13, 307 S.E.2d 234, 237 (1983); Dye v. Staley, 226 Va. 15, 18, 307 S.E.2d 237, 238-39 (1983). Therefore, the period available to Cumberland in which to file a motion for judgment was that which remained on his limitation period on the date he filed his notice of claim. Thus, Cumberland had 38 days from July 1, 1993 to file a motion for judgment against Dr. Cook and three days to file against Dr. Boone, Dr. Gates, and Loudoun Surgical Associates, Ltd. Although Cumberland could have filed his motion for judgment within the appropriate limitation period, he did not.
The failure of a litigant to institute his lawsuit prior to the expiration of the statute of limitations cannot be considered a miscarriage of justice. Nor is it a miscarriage of justice for a litigant to be required to comply with a limitation period that has been shortened or altered by the legislature, when, as here, no substantive rights are affected. The Constitution of Virginia postpones the effective date of all newly enacted legislation for several months.
Furthermore, not only was Cumberland able to pursue his claim in a timely manner once the “disadvantages of the former notice of claim requirement” were removed, he was not deprived of the “intended compensatory benefit of the former tolling provisions” as the majority concludes. Cumberland did receive the benefit of the tolling provisions from December 2, 1992, the date of his notice of claim, until July 1, 1993. Therefore, I cannot agree with the majority‘s assertion that Cumberland would be subjected to manifest injustice if required to comply with the current procedural provisions.
Finally, I do not think the circumstances of Harris and Cumberland are sufficiently distinguishable to justify the disparate treatment the majority has imposed upon them. The sole factual difference between the claimants is that Harris did not file a notice of claim before July 1, 1993. Nevertheless, prior to July 1, 1993, both Harris and Cumberland were denied direct access to the courts to pursue their tort claims; they were both subject “to the disadvantage of the former notice of claim requirement.” As of July 1, 1993, however, both were relieved of this disadvantage and were free to file a motion for judgment. Harris had 12 days to file before the statute of limitation for her claim expired. Cumberland had 38 days left to file against Dr. Cook and 3 days left to file against the remaining defendants. Accordingly, both Harris and Cumberland could have filed timely motions for judgment after July 1, 1993. Neither did and, therefore, both claims should be barred.