*1 Karl B. Pulliam, Executor Elnora R. Pulliam
Estate Emergency Richmond, Inc., et al. Services Coastal
Record No. 980659 8, 1999 January Hassell, Koontz, JJ., Carrico, Keenan, Kinser, Present: C.J., Compton, Poff, Senior Justice *5 Cuthbert, Broaddus, H. Charles Jr. Cuthbert (Margaret on briefs), for appellant. Getchell, Broaddus;
E. (William Duncan Jr. G. P. McMe- Joseph namin; Woods, McGuire, Robert L. Katrina C. Hodges; Randolph; Boothe, Battle & brief), on for appellees.
Amicus Curiae: of Trial Lawyers Association America (Mark Mandell; White, brief), S. R. on in Jeffrey support appellant.
Amici Curiae: Brain Association Campaign Virginia; Injury Smolla, brief), A. on Virginia (Rodney support appellant. Curiae: Amicus C. (John Trial Association Virginia Lawyers Jeffries, Jr., brief), on support appellant.
Amici Curiae: The Medical Protective MMI Company; Compa- nies, Inc.; (Rod- MCV Eastern Medical School Physicians; Virginia Adams; Newsome; Scher; K. Kelvin L. Anne G. LeClair ney Ryan, brief), on support appellees. (Allen C. Society Curiae: The Medical
Amicus Rolfe; Graham; III; Hunton & Wil- Elena Robert M. Marie Goolsby, liams, brief), in support appellees. (Sherman American Tort Reform Association
Amicus Curiae: *6 Schwartz; Behrens; Astilla; E. A. Crowell Victor Mark Lissa Joyce; brief), & on in of Moring, support appellees. (Mark Earley, of L.
Amicus Curiae: Commonwealth Virginia General; E. Senior Assistant Gen- Attorney Attorney Gregory Lucyk, eral, brief), of on in support appellees. Association; Vir- & Healthcare
Amici Curiae: Virginia Hospital Association; Commerce; of Health Care Chamber ginia Virginia Association; National Federation of Indepen- Manufacturers Virginia Krebs-Markrich; (Julia John E. Coffey; dent Business/Virginia Greeson; Thomas, brief), Hazel in of Thomas W. & on support appellees. Insur-
Amici Curiae: The Insurance Doctors Reciprocal; (Judith (Risk ance B. William Henry; Retention Reciprocal Group) Jr.; Hancock, brief), O. & in Quirey, Crews support appellees. CHIEF JUSTICE of the CARRICO delivered Court. opinion
In this
we are called
to consider
the constitu-
appeal,
again
of the
Code
tionality
malpractice cap imposed
§8.01-
in
581.15.1 We
constitutionality
previously upheld
cap
v. Medical Center
against interest from plus date Mrs. Pulliam’s death. defendants, motion of the the trial court reduced verdict Upon $2,000,000, and, for, the amount sued the medical mal- applying $1,000,000 further reduced the practice cap, verdict and entered both defendants judgment against in amount. Holding pre- interest is judgment subject trial court disallowed the cap, jury’s award interest from the date of Mrs. running Pulliam’s death. We awarded the plaintiff this appeal.
The record shows that Coastal was created to provide emergency to staff physicians it emergency departments hospitals 27, 1989, with contracts this On October hospitals purpose. Coastal contracted (South- with Southside Medical Center Regional side Petersburg “at least five . . Regional) provide Physicians . to render professional administrative services [Southside’s on a full-time basis.” Emergency] Department Coastal recruits doctors to work in emergency “from departments number avenues.” On October Coastal contracted with *7 Dr. “to DiGiovanna services on and during and provide days hours scheduled by and him to Southside assigned [Coastal]” Regional.
The record shows further that about 3:55 a.m. on December Pulliam Mrs. arrived at the emergency room Southside Regional She had been complaining “legs aching.” diagnosed with influenza two earlier in the office of her days private physician. At Regional, Southside she was examined Dr. DiGiovanna. by About a.m., Dr. 5:00 DiGiovanna Mrs. after Pulliam discharged prescribing relaxant influenza muscle and her giving instructions printed and additional bed instructions rest. concerning after 11:00 a.m. the day, same Mrs. Pulliam returned
Shortly room of Southside emergency Regional general complaining weakness, her lower extremities. particularly Following physical Wickizer, Jr., examination Dr. Mrs. Pulliam was started Boyd Roy on intravenous fluids and a CT scan and a lumbar subjected to punc- Thereafter, unit, ture.3 she was transferred to intensive care where her condition worsened. She was dead at 9:08 An pronounced p.m. revealed that the cause of death was bacterial and autopsy pneumonia but was later nonsuited. Dr. Wickizer was named originally as a defendant to the plaintiff’s motion for judgment husband, the executor of her bacteremia. She was survived who estate, her and a son. Medical Malpractice Cap.
A. Constitutionality of of error on this states that assignment point plaintiff’s law, to conclude that the trial court erred failing a matter of “[a]s as applied awards is unconstitutional on medical cap malpractice In this assignment and to Dr. DiGiovanna.”4 considering Coastal error, all actions of the we adhere to well-settled principle are to be This General constitutional. Assembly presumed therefore, Court, doubt will resolve reasonable regarding of its statute’s in favor constitutionality validity. Any judgment as a statute to the wisdom is within legis- propriety lative this Court will declare the legislative prerogative, null and void when statute is judgment only plainly repug- nant to some of the state or federal constitution. provision Stakes, 198, 202, Supinger (1998) S.E.2d (citations and interior omitted). marks quotation Etheridge, rejected challenges constitutionality based contentions that cap due “violates Constitution’s trial process guarantee, jury doctrine, guarantee, separation powers prohibitions against special certain legislation, well as equal protection guarantee, parallel the Federal Constitution.” Va. at 376 S.E.2d at provisions here, makes but the same challenges amplifies in several arguments respects.5 clear that relief
It is we cannot without grant therefore, the doctrine of stare Etheridge. overruling Immediately, decisis is implicated. Coastal
*8 oral because error late However, express we will [4] [5] We briefs. On argument, does not to the definition of brief, emphasize its it was not consider the Rule 5:25. object the not made in the trial permit the plaintiff in its the “as plaintiff it now. did not raise title argues “[h]ealth applied” argument. contended that Rule [in violation of 5:25. claim not asserted this court, language care Rule point provider” 5:17(c). legislation the in the trial court or art. plaintiff’s petition IV, § was plaintiff’s Furthermore, facially adopted Etheridge, 12 of assignment the Constitution invalid, in 1994 the the for i.e., argument appeal, petition that the and the adding of error or in his assignment is foreclosed entities appeal, because, Virginia].” “does not appel like in
10
In the doctrine of more Virginia, stare decisis is than a cliche. doctrine mere That role in the significant plays consistent, administration orderly justice by assuring pre- dictable, and balanced And application legal principles. when a court of last resort has established a after precedent, court, full deliberation the issue will precedent not be treated ignored, absence lightly flagrant error or mistake. Dean, 579, 260, 265,
Selected Risks Ins. v. Va. Co. 355 S.E.2d (1987) added). (emphasis becomes, therefore, The inquiry error or flagrant whether mistake exists in Etheridge decision. The contends that such and, therefore, error does exist doctrine stare decisis “[t]he should deter this Court from reversing Etheridge.” that the medical is plaintiff argues unconsti- malpractice cap tutional each of seven will grounds. We consider independent these seriatim. grounds
1.
to Trial
Right
by Jury.
I,
Article
11 of the
Constitution of
provides
in controversies
and in suits
respecting property,
between
“[t]hat
man,
other,
man and
trial
is
be
jury
preferable
ought
held
In Etheridge,
sacred.”
we noted
at the
time
Constitu
tion was
sole function was
resolve
adopted,
jury’s
disputed
facts,
function,6
that this
to be a
continues
sole
and that the
jury’s
function extends to
assessment of
jury’s fact-finding
damages.
95-96,
stated, however,
11 trial. Id. the to a concluded, right jury infringe the does not 97, at 529.7 at however, “erred Etheridge by the Court in says,
The plaintiff I, includes the 11 mandate of Article that the to conclude failing after a a jury of awarded damages by the amount to receive right connection, cites two recent the In this plaintiff trial.” proper jury Court decisions. Supreme 208, 1210 118 S.Ct. 523 U.S. County, Prince William Hetzel Fourth Circuit set for the
(1998),
States Court Appeals
the United
had
for
the
damages
plaintiff
excessive a
verdict
jury
aside as grossly
remanded the case
The Fourth Circuit
in district court.
been awarded
a
for
lesser
the
and the entry
judgment
for recalculation of
award
for a new
motion
court granted
plaintiff’s
amount. The district
then
the defendant’s petition
Fourth Circuit
granted
trial. The
Court
retrial. The
the scheduled
Supreme
mandamus and stayed
reversed,
had
a remittitur
the Fourth Circuit
imposed
holding
“cannot be
trial and that this action
of a new
without
option
211,
S.Ct.
Feltner v. Columbia
Columbia, a
an action
(1998),
by
copyright
involved
S.Ct. 1279
Feltner,
owner,
that continued
the owner of television stations
against
A
terminated their licenses.
to broadcast
after Columbia
programs
or statu
actual
seeking
damages
statute
Columbia the
gave
option
“as the court consid
the latter
in an amount
tory damages,
permitted
345,
at
Columbia chose
523
at
118 S.Ct.
ers
U.S.
just.”
trial,
the district
a
for a
which
jury
route and made
statutory
request
jury
v. Forbes & Co. Southern Cotton Oil
Forbes
However,
that “the
This
to settle
of the
statement
and the constitutional
Va.
satisfied.
. . . that would warrant
and we reaffirm it.
parties.
has ascertained
is the conclusion we drew in
parties
court.” This is the statement
questions
plaintiff
Thereafter,
linchpin
in
This law is announced by
[Forbes},
become a
S.E.2d at 529
same
criticizes
it is the
fact,
paragraph,
guaranty
taken out of
question
reasoning
jury
facts
duty
(citations omitted).
...
when
majority
Etheridge and assessed the
does not
court also said this:
the Forbes of the court
law,
of the
context and
in
the facts are ascertained the law
finding
Co.,
the court or
Forbes
and there is no
apply.”
Etheridge majority
130 Va.
a verdict
that attracted the
given
damages,
We think this
Id.
apply
for its
judge.”
a broad
controversy
108 S.E.
the law to the facts.”
accordance
interpretation
...
cites: “The
court denied. The trial awarded a total Columbia judge $8,800,000, Amendment, and Feltner the Seventh appealed. Applying reversed, the Supreme Court the statute was holding although silent on the “the Seventh Amendment to a subject, provides right trial, determination right which includes a to a jury jury amount of Id.8 statutory damages.”
The that these two decisions his plaintiff says conclu support sion that the medical violates his to a malpractice cap right jury trial. Hetzel, We do not on the agree. relying plaintiff attempts equate that, remittitur the with medical malpractice since cap argues remittitur the of a without new trial the option violates Seventh trial, Amendment to a of the likewise vio right jury application cap However, lates to a trial. the Virginia’s initial right jury plaintiff’s is because remittitur and the are not premise faulty cap equivalent Remittitur, and do not come into under the same play circumstances. additur, as well as is utilized after a court has determined only that has not received a fair and trial. party proper jury Supinger, 203, however, at 815. The cap, only after a applied has had the benefit of trial. In the latter situa proper jury tion, trial, there right is no to a new and the constitutional mandate has been satisfied. There, reliance on Feltner is also plaintiff’s misplaced.
the Court dealt with whether Columbia was entitled to a primarily trial even it to seek jury though statutory elected The Court damages. the concluded that Columbia had right jury trial because the common law afforded owners causes of action for copyright infringe ment, and tried these actions were before The Court juries. recog that nized Seventh Amendment . . . not to com applies only “[t]he action, mon-law causes also of but to ‘actions to enforce brought are statutory that to common-law of rights analogous causes action decided in the ordinarily law courts in late 18th English century, to those heard or courts of admi opposed customarily equity ” Feltner, 523 U.S. at Court ralty.’ 118 S.Ct. 1284. The did not address the of a the validity cap recovery damages.
Furthermore, it not Court while does that has appear Supreme addressed the of the validity issue state it has noted statutory caps, the decisions of circuit on the See two courts Gas appeals subject. Humanities, Inc., (1996) v. Center perini 518 U.S. 429 n.9 highly state courts, instructive in but says acknowledges defining Supreme that the Seventh Amendment does not scope Court decisions right to a interpreting jury trial in Seventh Amendment litigation apply in state procedures courts. are 1989), (3rd v. F.2d 1161-65 Cir. Omitowoju, Davis (citing Bulala, (4th 1989), F.2d Cir. as instances Boyd have that district court application courts of held where appeals verdict, cases, does not violate statutory post diversity state caps Amendment). the Seventh Virginia’s dealt with v. Bulala
Boyd directly had that this Court decided Noting recently cap. assertions, alia, inter against of the constitutionality cap
upheld Circuit held it denies the trial Fourth right by jury, Constitution, in Etheridge our decision with respect F.2d at binding.” 877 was “absolutely of trial under the Seventh
Concerning right jury Amendment, is not reasoning the Fourth Circuit followed our that it of the of the to determine the con the role but jury legislature legal However, factual Id. Cir Fourth sequences jury’s findings. cuit this additional reason for assigned upholding validity an assertion it violated of trial against right by jury:
It is axiomatic that the Constitution does forbid by now creation of new the abolition old ones rights, recognized *11 law, to common attain a by legislative object. permissible Indeed, the district court conceded that a legislature’s outright cause of abolition of a action would not violate seventh a amendment. If a abolish cause of legislature may completely think action of trial it violating right by jury, without limit for a of recoverable cause may damages permissibly as action well. (citations omitted).
Id. at 1196 interior marks quotation Furthermore, the rule a not more recover plaintiff may ad to a dam than amount of an damnum clause is akin cap Yet, the in this court’s case has trial ages. challenged plaintiff $2,045,000 $2,000,000, to the amount reduction his verdict jury for, and a sued it is doubtful that such would meet with challenge success.
Nor can it be in addition to a cause abolishing disputed action, a a action cause of legislature may extinguish impo limitations, of a for two from the date example, years sition statute death in the case of an action for death. Code 8.01- wrongful § it to enact a statute of limita 244. If is a permissible legislature a cause action tions barring recovery particular completely 14
without of trial it should be impinging upon right by jury, per- missible for the legislature a limitation impose amount of recovery well.
The courts of other states have
medical
upheld
malpractice
against assertions
violate the
to a
caps
they
right
trial. John
jury
Inc.,
son St.
v. Vincent
404
Hospital,
(Ind. 1980);
N.E.2d
601-02
Edmonds,
(Md. 1992);
v.
Murphy
601 A.2d
118
v. New
English
Center, Inc.,
1989).
Medical
England
(Mass.
N.E.2d
331-32
cites several
out-of-state cases
declaring
unconstitutional,
caps
but we find them
inapposite.
Ass’n,
(Ala. 1991),
Moore v. Mobile Infirmary
opposed Tenold respect jury. Co., (Or. 1993); P.2d Weyerhaeuser v. St. Francis Guzman (Cir.Ct. No. Hosp., 1998). 97-CV-007107 Milwaukee Wis. County We both disagree with decisions. we advert to the summary, plaintiff’s argument, supra, I,
that “the mandate of Article 11 includes the to receive the right *12 amount of a awarded a We damages by jury after trial.” proper point out, however, that “the trial secures no other jury guarantee rights than those at that existed common law the common law never [and] a to a full in tort.” 237 Va. at recognized right recovery Etheridge, 96, 376 at S.E.2d 529 Duke Power Co. v. Carolina Environ (citing Inc., 59, (1978), mental U.S. n.32 and Study 438 88-89 Group, 448, 452, Sutherland, 425 Adm’r 111 S.E.2d Phipps follows, therefore, does cap It that the medical (1959)). malpractice to trial right by jury. not impinge upon
2. Special Legislation. IV, that 14 of the provides Article Constitution local, or enact special, private General shall not Assembly any “[t]he association, or . . (18) law . [granting private corporation, or immunity.”9 or right, privilege, individual exclusive any special held laws be noted that we had Etheridge, may we previously small, a the class be though may made to to class even only, apply reasonable, the law is arbitrary, classification is and provided all in class distinction. Va. made to without apply persons if at at 533. We also noted that the classification 376 S.E.2d bears a and substantial relation to the to be object sought reasonable it will constitutional challenge. survive accomplished, special-laws Id. out in the Medical
We then pointed enacting Malprac Act, tice the General after careful deliberate Assembly, study, had determined health care faced providers increasing difficulty $750,000, in obtaining coverage affordable excess malpractice thus the number of available to serve Vir such reducing providers citizens. We also out that the General had ginia’s Assembly pointed determined that this affected significant adversely public problem health, and welfare necessitated the limi safety, imposition tation of health care medical liability providers malprac 102-03, tice at actions. Id. S.E.2d
We observed that General had decided Assembly cases should not exceed damage awards medical malpractice $750,000 (now $1,000,000), and stated that the limitation applied to all and all medical Id. health care providers malpractice patients. was not S.E.2d at 533. We found the classification to the that it bore a reasonable and substantial relation arbitrary, all to be and that it applied persons object sought accomplished, we con without distinction. Id. belonging Accordingly, class did against cluded that the not violate the legislation prohibition spe cial Id. legislation.
Constitution of leges.’ office ” However, as has no Virginia and also contends that application its to this prohibition points type out, against this case. 237 Va. at clause is ‘exclusive intended separate “violates Article to shield emoluments or against at 532. I, § heredity 4 of the privi *13 we
When the this get plaintiff’s arguments subject, encounter considerable Aside from an difficulty. “as applied” argu- ment involving Coastal which we will consider the only, shortly, stated oral there plaintiff during argument were two reasons that the statute the medical constituted imposing malpractice cap special legislation. reason, said,
The first
the
is set forth in the dissent in
plaintiff
Nevitt,
Inc. v.
Hospital System,
Va.
S.E.2d 10
Fairfax
(1995),
case
a
a
involving
but an
special legislation question
issue
the interaction
concerning
between medical malpractice cap
8.01-35.1,
and Code
which
that the amount
provides
§
recovered
one tortfeasor
be
against
shall
reduced
the amount
in settle-
by
paid
ment
another
In the
by
tortfeasor.
which
dissent
portion
upon
relies,
dissenters accuse the
using
majority
statute,
itas
interacts
in
malpractice cap,
with
release
a
manner
to its
“foreign
justifi-
constitutional
purpose
consequent
cation of
affordable medical
Id.
fostering
insurance.”
600,
The second reason for plaintiff’s constitutes saying cap spe- cial is based a legislation statement made in a report prepared the State in Commission 1975 on “Medical Corporation Malprac- tice Insurance in Virginia.” This as an was attached exhibit to report Senate Document which consists of the 1976 interim of a report created Commission to legislatively Study Costs Administra- tion of Health (1976 Care Services. 3 House and Senate Documents Session). On of its page 92 the State Commission report, Corporation fact, stated: “In existing evidence indicates several of the more $500,000 solutions a (e.g., recovered) limit on amount popular will not reduce the cost of in a malpractice premiums jurisdiction $250,000.” like where or awards settlements seldom exceed This said oral proves, does during argument, not bear a reasonable and substantial relation object sought and, therefore, be constitutes accomplished special legislation. with these two is that difficulty they first surfaced arguments oral during argument before this Court. do not They appear below, record or his plaintiff’s petition appeal, appellate briefs. we will not consider them. Rule 5:25. Consequently, “as Coastal plaintiff’s applied” argument concerning stems from the fact the General amended Assembly Code 8.01-581.1 new entities to the definition of adding care as follows: provider,” “[h]ealth liability limited (vi) company partnership, corporation, which state-operated facility, other entity, except health care which provider licensed or engages employs care health services. renders primarily no contained that the 1994 amendment argues
The plaintiff
*14
therefore,
and,
that it fails the test that a statu
statement
purpose
scheme,
rela
bear a
and substantial
as
must
reasonable
tory
applied,
to be
the
by
legislation.
to
object sought
accomplished
the
tionship
inference, however,
Assembly
that the General
There is a reasonable
the
the
the amendment to serve
same
as
purpose
original
intended
i.e.,
“a remedy
to
malpractice
provide
enactment of the
cap,
mal
social
the
of medical
unavailability
problem,
perceived
affordable rates.”
237 Va. at
Etheridge,
insurance at
practice
J.,
(Russell,
at 536
dissenting).
376 S.E.2d
Brownlee, 253
also
that in
argues
plaintiff
Schwartz
(1997),
827
the
Va.
482 S.E.2d
we said that
purpose
the Medical
Act was to enable licensed
enactment of
Malpractice
to
at
health care
secure medical
insurance
providers
malpractice
to
rates and that it “would not
extend
purpose
affordable
serve
to non-health care
Id. at
the protection
cap
providers.”
this,
at 832. From
the
because
argues
to
a licensed health
extension of the
Coastal is not
care provider,
cap
to
Coastal does not bear
reasonable and substantial relationship
to be
the medical
sought
by
cap,
object
accomplished
amendment, therefore,
legislation.
constitutes special
care
in
was limited to licensed health
language
But
Schwartz
because,
occurred,
at
time the
in
providers
injury
Schwartz
care
We noted
to licensed health
only
providers.
was
cap
applicable
enacted,
amendment had
but
out that
that the 1994
been
pointed
n.3,
at
Id.
injury.
enactment occurred subsequent
n.3.
stated it would not serve the
S.E.2d at 830 While we
purpose
to
to non-health
the medical
extend its
malpractice cap
protection
no
care
care
entities like Coastal are
non-health
longer
providers,
and,
them,
as a result of the 1994 amendment
providers
con-
is
And
added
under its
statement
now irrelevant.
it
bemay
to be covered
Regional,
tract with Southside
Coastal is required
$1,000,000
insurance with limits of at least
per
liability
professional
$3,000,000
has
annual
so Coastal
a direct
aggregate,
occurrence
interest in the
availability
professional liability insurance
afford-
able rates and fits within the
class
is intended to
cap
protect.10
remainder of
“as
con-
plaintiff’s
argument is
applied”
fined to the
that the medical
proposition
concentrates
malpractice cap
the costs
those whose
are
solely upon
losses
while
greatest
identify-
class,
“a
elite
described
ing
as ‘health care
specific
providers,’
which it accords
special privileges
immunities that are
given
no other tortfeasors in this Commonwealth.” And the
indi-
cates his agreement with the dissent in
the General
acted
it
Assembly
arbitrarily
so that
did not
restricting
cap
to “all
and all
apply
plaintiffs
defendants
of their identi-
regardless
ties.”
Va.
Etheridge, 237
The difficulty with the plaintiff’s argument with the dissent in Etheridge, that both much greater place empha sis the classes affected than the real upon test for whether a statute withstands a determining special-laws challenge. relevant, course, Classifications are and should be given consider ation determining whether act legislative constitutes particular But the real special legislation. test “for statutes under the challenged special-laws Constitution prohibitions is that they *15 ‘a must bear reasonable and substantial relation to the object sought ” to be the Benderson accomplished by legislation.’ Development Sciortino, 136, 147, 751, Co. v. 236 Va. (1988) 372 S.E.2d 757 Haddon, 979, 991, 516, Mandell v. 202 (quoting Va. 525 And, (1961)). while we think that the classification involved in this reasonable, case is not the arbitrary, that medical malpractice cap is made to to the all within a apply class without persons particular distinction, “the for and the of necessity reasonableness classification are for the If state of facts be primarily questions legislature. can it, conceived . . . that reasonably would sustain that state of facts at occurrence indirect ered” entities which rendered health care vider” numerous unlicensed entities which than and which wealth. 237 shall be covered 1994 amendment “obligated [10] [11] Coastal also The dissenters in obligating interest primarily [it] Va. to ensure that Coastal $3,000,000.00 at agreed to 110, Code professional render health care services. availability to [376] in its contract with Southside provide § 8.01-581.1, S.E.2d the annual were liability Physicians of such insurance at affordable rates. the concerned aggregate.” coverage 537. This concern should which added to the definition insurance services employ were covered that itself. Even Coastal concedes with limits but were the Medical Regional engage by malpractice so, not licensed health care of at that “each of [its] Physicians this Malpractice be licensed in allayed, gives that least this “[h]ealth Coastal at least an $1,000,000.00 insurance,” Act left “uncov however, provision this Common providers care rather only pro per the
19
Ex’rs v.
be assumed.” Martin’s
enacted must
time the law was
77,
603, 612-13,
(1920).
Commonwealth,
80
102 S.E.
126 Va.
however,
Here,
have to assume a set of facts
we do not
as
The actual facts were
cap.
the medical malpractice
would sustain
concluded
careful
Assembly
[after
“The General
Etheridge:
stated
costs of
malpractice
study]
escalating
and deliberate
insurance were substantial
of such
availability
insurance and the
health,
Vir
and welfare of
safety,
adversely affecting
problems
facts,
these
S.E.2d at 528. Given
citizens.”
Here, of the medical is that the effect argument and his son violation take the property beneficiaries of Mrs. statutory constitutional As provisions. these Pulliam, and his son “had property the argument goes, in the full measure of the verdict.” jury’s interest Snyder In Hess Hunt Corp., v. Va. We disagree. (1990), challenge constitutionality
S.E.2d 817
we considered
8.01-250,
which,
a statute of
expiration
Code
repose
§
time,
all
remedy
‘not
but also
only
legal
a fixed
“extinguishes
action,
as
those which
later accrue
well
including
may
causes of
”
Id. S.E.2d at 819 (quoting
those
accrued.’
already
Co., 32, 37,
United States Gypsum
School Board was
(1987)). The
to Code
8.01-250
challenge
S.E.2d
327-28
*16
limb,
life,
due
or
without
process
that it
property
deprived persons
XIV,
1
Constitu
of amend.
United States
of law in violation
§
Hess,
52,
I,
We that it is when only due of the has arisen that it is subject protection or a claim 54, at at We said further clause. 240 Va. 392 S.E.2d 821. process 20 “Code a 8.01-250 does not disturb vested a right, ‘[njobody has ”
vested right continuance of the rules of the common law.’ Id. Illinois, 113, Munn v. (citing (1877)). 94 U.S. we Continuing, stated that “the fourteenth amendment does not forbid a legislature from old abolishing rights recognized the common law in to by order attain a permissible legislative Id. at at objective.” S.E.2d 821. we Finally, said that “if a legislature can abolish a cause of action for a legitimate legislative it also purpose, may a prevent cause of action from arising by a statute of enacting for such repose a Id. purpose.”
This rationale with force applies equal here. The plain tiff’s cause of action for death wrongful had not accrued time was imposed recoveries in medical cases. One cannot obtain a interest in a property cause of action that has not accrued, and there was to nothing General prevent Assembly from limiting remedy, so far as unaccrued causes action are concerned, to attain a permissible legislative without objective run afoul of the ning “taking” clauses the Federal and State Constitu tions. we find no Accordingly, violation of the clauses in “taking” this case.
4. Due Process.
Protection.
Equal
In oral argument, the
combined these two
sub
jects
to convince
attempted
the Court that it should
an
apply
intermediate level of
rather than the
scrutiny,
lower-level rational
test,
basis
in our due
process
equal
protection analysis
However,
medical malpractice
we ruled in
cap.12
due
or
process
equal protection
rational basis test
analysis,
unless
fundamental
or
applies
right
class is affected. 237
suspect
97, 103,
atVa.
21
and
race
are those based upon
that
classifications
further
suspect
alienage,
that
based upon gender,
and
classifications
origin
national
scrutiny
a level of
between
are entitled to receive
and illegitimacy
n.7,
at
376 S.E.2d
and the rational basis test. Id.
strict scrutiny
Here, however,
or
class
right
suspect
n.7.
no fundamental
the medical malpractice cap.
affected
by application
enunciated
we are of
Accordingly,
opinion
and
rational basis test continues
the correct
that the
scrutiny
level
has
for
whether there
determining
to
the
standard
proper
provide
case involving
a
due
or
in a
equal
been denial of
process
protection
from
medical
The rational basis test is satisfied
malpractice cap.
has a reason
legislation
a due
if the
standpoint
challenged
process
a
or
arbitrary
able relation to
and is
discrimina
proper purpose
or,
id. at
from an
stand
tory,
equal protection
if the
could
have concluded that
reasonably
point,
legislature
classification would
state
challenged
legitimate
promote
purpose,
id. at
We think that the medical the test malpractice cap passes standards, against when these constitutionality judged primarily A(2) the reasons enunciated in Part regard of this previously opinion hold that the has Accordingly, we ing special legislation. suffered no denial of due from process equal protection applica tion of verdict in this case. jury however, that, stated in oral even if the argument, rational test there still be denial of due basis would applies, process reasons, case for based protection this two one equal upon Nevitt, dissent Inc. v. and the System, supra, Hospital Fairfax other in Senate Document No. concerning statement upon But, of the medical for its intended efficacy malpractice cap purpose. we noted A(2) arguments in Part of this based opinion, Nevitt statement cannot be consid- dissent and Senate Document ered were for the first time Rule 5:25. because raised they appeal.
6. Powers. Separation of Judiciary. Province of related, them Because these two are we will discuss subjects vio- together. malpractice cap plaintiff argues lates the and also doctrine invades separation powers province of the judiciary. challenge Etheridge, rejecting powers separation Constitution, VI, 1 of the out under art. pointed §
the General
Assembly, subject
provisions relating
power
Court,
of this
determine
jurisdiction
has “the
the origi-
power
nal and
appellate jurisdiction
courts of the Commonwealth.”
IV,
atVa.
Accordingly,
that the
has the
to
legislature
power
or
a
provide, modify,
repeal
remedy.
This rationale with force and it should be applies equal sufficient to of the dispose plaintiff’s arguments concerning separa tion of and the powers province but judiciary, plaintiff VI, He that art. disagrees. says 5 of the Constitution of Virginia § establishes that “the not the the rules judiciary, legislature, makes to applicable verdicts.” jury brief, VI,
On plaintiff art. quotes providing § this Court has “the to make authority rules ... governing prac tice and to be used in procedures the courts of the Common However, wealth. . . .” what the has omitted at end this VI, is of quotation crucial The text art. full importance. § reads as follows: Corn! Supreme shall have the make gov- to rules authority the course of and the to
erning appeals practice procedures Commonwealth, be used in the courts of the but such rules shall, shall not be in with the as the general law same conflict time, time to be Assembly. established General from added.) addition, 8.01-3, (Emphasis is listed in Code which § VI, cross-reference art. this Court following while provides § a “may of rules and a prepare system of practice system pleading and the . forms of . . process, Assembly General time may, [t]he from time, law, general any enactment a or annul modify, rules or the case adopted pursuant amended to this section [and in] a variance between rule and an of the General any enactment as to effect give shall be construed so such variance Assembly added.) enactment.” such (Emphasis
Thus, concerning arguments no merit in the plaintiff’s we find Accordingly, judiciary. powers province separation reject arguments. B. Care Provider. Health Part of this Code 8.01-581.1 A(2) opinion, As noted in § defines care include: provider” “[h]ealth or
(vi) limited liability a corporation, partnership, company other which state-operated facility, entity, except care and which health engages provider primarily employs renders health care services. does contends that the malpractice cap to Coastal because the to health care
apply cap applies only providers in the trial record evidencing is nothing simply “[t]here services,’ an Coastal renders health care essential ‘primarily compo- ” The nent of definition of ‘health care provider.’ 8.01-581.l’s more than “a plaintiff says specialized type that Coastal nothing service.” employment placement
However, that different the evidence shows Coastal was quite from an service. Coastal’s senior vice- employment placement that to president emergency testified Coastal was created provide to and that staff of physicians emergency hospitals departments “[i]s . . . what it in fact does.” Regional obligated
Coastal’s contract with Southside Coastal at least five to render and adminis- provide physicians “professional a full- services in on trative Emergency] Department [Southside’s ... a Coastal that time basis 24 hours week.” day, days agreed direct and all services supervise would physicians and educational emergency department, programs, per- participate form functions. Coastal also information teaching agreed provide of emergency to Southside needs Regional regarding budgetary administrative and of tasks. a number other department perform addition, of its designate In the contract Coastal to one required Direc- as its to be “the Chief/Medical physicians, serving employee, This duties were to overall “provide tor of doctor’s Department.” of the emergency medical direction in continuing operation” of and that the safety appropriateness “assure department, quality, evaluated,” care in the patient are and “see that Department per- formance is in accordance with” contract. The Physicians contract “entitled to bill for services patients professional [Coastal] rendered The Physicians.” contract that Coastal’s provided fees would be and independent Southside that Regional’s charges neither Coastal nor the physicians would receive any compensation from Southside for Regional services rendered pursuant contract.
Coastal owns no emergency room and facility equipment Instead, no employs support such as personnel nurses or technicians. it enters into with contracts and them their for ser- physicians pays case, vices. Dr. DiGiovanna’s his contract that pro- stipulated fessional services would be medical institu- provided designated tions that Coastal would a set fee each for hour pay during which he services provided to the contract. pursuant law, plaintiff says a matter of the trial court erred in concluding Coastal carried its it burden proving pri marily renders health care services within the meaning the defini tion care provider” 8.01-581.l(vi). Code We dis “[h]ealth § with the agree plaintiff. contract between Coastal and Southside Regional clearly provided rendering health care services in Southside Regional’s room. Coastal is cre emergency corporation ated to provide emergency physicians to staff emergency departments for the hospitals health services in purpose care such rendering A departments. can act its corporation only officers through Commonwealth, 594, 600, agents. Greenberg v. S.E.2d (1998). It ais concession in the case Dr. DiGiovanna Coastal, was agent it was in this that he rendered capacity health care services to Mrs. Pulliam in the room of South- emergency side Regional December 1995. In our all the opinion, forego established least an ing facie case that Coastal was prima entity “which renders health care primarily services” within the meaning of the definition of care in Code 8.01- provider” “[h]ealth therefore, 581.1(vi). err, The trial court did holding Coastal had carried burden its of proof.
C. Prejudgment Interest. As noted the from date allowed interest the previously, jury death, Mrs. Pulliam’s but the trial the on the court disallowed award that is ground interest prejudgment subject The this was error. cap. plaintiff says
25 8.01-581.15, under Code The out § plaintiff points to, of, or death shall any injury patient total amount recoverable that not interest is one million dollars. plaintiff says not exceed and, death, Ins. Co. v. Nationwide Mut. “for” such or injury quoting 700, that (1975), argues 214 the plaintiff 215 Va. S.E.2d 129 Finley, not an element of law on is interest the allows judgments “[t]he in the money but a award for ‘damages’ statutory delay payment 702, 214 at 131. due.” Id. at S.E.2d Finley with the involved postjudgment
We disagree plaintiff. Douthat, 130; 701, Ins. Dairyland at 214 at Co. v. interest. Id. S.E.2d 627, 632, 799, (1994). And we said 449 S.E.2d that is “an distinction between Dairyland prejudg there important 631, at S.E.2d at ment interest and interest.” Id. postjudgment distinction,” continued, 801. this we “is principle “Underlying to the plain that interest is make ‘[p]rejudgment normally designed be recov damages sought tiff whole and is the actual to part ” ered.’ 486 U.S. Ry. Morgan, Id. Monessen Southwestern (quoting 330, contrast,” said, is (1988)). “In we interest “postjudgment an statutory delay element of but is a award for damages, at at due.” Va. 449 S.E.2d actually payment money the basis of a distinguish Dairyland attempts that concession made there to be sought charged “pre- parties an Id. at damages.” interest is element judgment compensatory that this concession elimi- says 801. The plaintiff nated need for this to reach that issue.” “the Court Douthat,
It made in but this is true that such concession was ... holding Court made interest distinctly “prejudgment recovered,” actual to be id. damages sought part for the If holding. S.E.2d at and we cited Monessen authority this Court’s then interest is part was holding, prejudgment to, of, or death “the total amount recoverable for any injury 8.01-581.15, subject of Code within patient,” meaning if the medical of one million dollars. But any ques- malpractice cap be tion remains about the will eliminated holding, question our affirmance of the trial court’s in all judgment respects.
D. Conclusion. conclusion, has cited in note that been of this Court without indication sixteen subsequent opinions bench, bar, or error mistake exists flagrant public we said in what significance decision. This underscores *21 Moore, 409, v. Myers (1963), 204 Va. S.E.2d case involv- ing Water and Sewer Authorities constitutionality Act:
The reason for the is that in well principle [stare decisis] ordered it society is for to know what their important people are, legal not rights only under constitutions legislative but enactments also defined by and when judicial precedent, have conducted their they affairs in reliance thereon they ought not to have their decree rights swept away judicial when a later other date be conceived to attack grounds may the con- stitutionality of a statute. is This true where especially property rights are involved. Under the Act Authorities numerous districts have improvement been created and financed in reli- ance it pronouncement this Court that is free from decisis, constitutional Thus the doctrine stare objections. one of the most in the of our important structure principles law, should here with all its force. apply Id. at 131 S.E.2d
Affirmed. HASSELL, JUSTICE with whom JUSTICE KEENAN JUSTICE KOONTZ join, concurring.
I believe result reached majority compelled by absence of sufficient record this appeal. IV, Article Section of the Constitution of Virginia provides, local, that: General part, shall not enact Assembly any “[t]he spe- cial, or law . . private . associa- [granting any corporation, private tion, or individual or exclusive or immu- any special right, privilege, Const, IV, IV, 14(18). Va. art. nity.” Const., sec. Article Section Va.
provides, pertinent part: section, “In all cases . . enumerated . preceding General shall general enact laws. law Assembly general Any shall be to amendment or but the amendment or subject repeal, thereof shall not partial operate indirectly repeal directly enact, of, shall not have the effect of enactment a special, or local law. private, association, be or individual shall
“No private corporation, law, nor from of any general the operation specially exempted be benefit suspended a general operation shall law’s association, or individual.” corporation, private laws does against pro The constitutional prohibition special King Neurological Injury Compen hibit classifications. legislative 404, 409, (1991). sation Program, Rather, be “natural that such classifications prohibitions require *22 reasonable, Dev. Benderson and and occasion.” appropriate 751, 140-41, Sciortino, 136, (1988); 372 S.E.2d Co. v. 236 Va. 409, 410 242 Va. at S.E.2d King, 979, Haddon, 121 S.E.2d
In Mandell v. 202 Va.
(1961), we observed that: must case determine each whether challenged [a act]
“[W]e makes an and the this ‘arbitrary separation,’ depends upon pur- and of the act and the circumstances pose subject particular and conditions its surrounding passage.
“The for and the reasonableness classifica- necessity tion are for the If of primarily legislature. state questions any it, can be facts conceived that would that reasonably support of time state facts at the the law was enacted must be assumed. [603,] . . . Martin’s Ex’rs v. Commonwealth [77,] 80, [(1920)]; S.E. Draheim & Cox v. Green ... 194 Joy, [1003,] 1009, [178,] [(1953)]. Va. 76 S.E.2d presump- that tion is the classification is reasonable and appropriate the act is constitutional unless on its illegality appears face.” conclude, Court, that
I can
based
the record before this
only
Code
does not contravene
constitutional
Virginia’s
8.01-581.15
pro-
§
hibition
The determinative issue
against special
legislation.
the
whether
statute as
reasonable and substantial
applied “bear[s]
the
relation to the
to be
sought
accomplished by
legislation.”
object
Mandell,
this
I with the agree rationale and decision that the medical majority’s malpractice contained in Code 8.01-581.15 does not recovery cap violate provision either the Constitution of the United States Constitution of I reach Virginia.* this conclusion without con the role sidering that stare decisis should this case. I write play sole separately my belief the medi purpose expressing cal creates an malpractice cap unwarranted in certain injustice situations.
The General has the Assembly responsibility protect health, welfare, citizens this Commonwealth safety However, through legislation. the medical appropriate works on those greatest individuals who are the hardship most severely care injured by health negligence providers. Nevertheless, I cannot be influenced such concerns when deciding of a I constitutionality statute. can challenged only express my *23 views with the that the General more hope Assembly will adopt method which to ensure the equitable of health care in availability this Commonwealth.
Inc., subject [*] also I is a to the medical malpractice “health care agree with the provider” majority’s under Code cap. decision § 8.01-581.1 Coastal Emergency and that prejudgment Services of Richmond, interest