MARISSA R. SIMPSON, AN INFANT, WHO SUES BY HER FATHER AND NEXT FRIEND v. DAVID ROBERTS, ET AL.
Record No. 121984
Supreme Court of Virginia
January 10, 2014
JUSTICE DONALD W. LEMONS
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE, William D. Broadhurst, Judge
PRESENT: All the Justices
OPINION BY
In this appeal we consider whether the Circuit Court of the City of Roanoke (“trial court“) erred when it held that Marissa R. Simpson (“Simpson“) was a patient of Dr. David Roberts (“Dr. Roberts“) and that her claim arose under Virginia‘s Medical Malpractice Act,
I. Facts and Proceedings Below
Simpson filed a motion for judgment in 2003, by her father and next friend, Christopher Simpson, against Dr. Roberts, Dr. J. Bradley Terry, and Southwest Virginia Physicians for Women, Inc. (collectively referred to as the “defendants“).1 Simpson alleged that as a result of the defendants’ negligence, she was born with serious and permanent injuries. In her motion for judgment, Simpson asserted that her claims were common law claims for medical malpractice because the treatment in question was not covered under the Act. Simpson demanded $10 million in damages.
The defendants filed a demurrer, arguing that the motion for judgment failed to state a cause of action for common law medical malpractice, failed to state why it was not covered by the Act, and that the ad damnum exceeded the statutory cap under the Act. A hearing on the demurrer was held on August 11, 2005, where Simpson clarified that she was only alleging her claim against Dr. Roberts was not covered by the cap. Simpson argued that at the time Dr. Roberts breached the standard of care, she was not a “natural person” because she had not yet been born, and therefore was not a “patient” as defined by the Act. She argued that because Dr. Roberts only treated her while she was in utero, he never had a doctor-patient relationship with her, and therefore she could bring a common law cause of action against him. Dr. Roberts argued that once Simpson was born alive, she became his patient and this claim was covered by the Act. The trial court sustained the demurrer and allowed Simpson to file an amended pleading.
Simpson filed an amended motion for judgment2 asserting two alternative counts against the defendants: one for medical malpractice under the Act, and one for common law medical malpractice against Dr. Roberts and his employer. The defendants filed their responsive pleadings, including another demurrer to the common law claim. However, the trial court never formally adjudicated this demurrer and the parties treated the claim as though the trial court‘s ruling on the demurrer was unchanged. Simpson then filed a second amended complaint, adding a claim against another party who is not involved in this appeal. The second amended complaint did not alter any of the allegations against Dr. Roberts and his employer. The case proceeded to trial on the second amended complaint.
A multi-day jury trial was held in May 2012. The evidence presented demonstrated that Simpson‘s mother, Marsha, was referred to Dr. Roberts by her family doctor during the third trimester of her pregnancy because she had developed gestational diabetes. Dr. Roberts performed amniocentesis to determine whether Simpson‘s lungs were mature enough to induce early labor. When Dr. Roberts performed the procedure, bleeding occurred. Dr. Roberts then turned Marsha‘s care over to his partner, Dr. Terry, and was not involved in any further care of Marsha or Simpson. Complications arose from the unsuccessful amniocentesis. Dr. Terry performed a caesarean section later that day to deliver Simpson. Simpson was born with damaged kidneys and cerebral palsy. The jury returned a $7 million verdict in Simpson‘s favor against Dr. Roberts, Dr. Terry, and Southwest Virginia Physicians for Women, Inc.
The trial court held a hearing on the motion to reduce the verdict and heard argument from the parties. At the conclusion of the hearing, the trial court held that the cap applied. The trial court further held that Simpson was Dr. Roberts’ patient, because at the time she was born alive, she became a “patient” under the Act. A final order was entered on August 21, 2012, awarding Simpson $1.4 million, the amount to which she was entitled under the cap.
Simpson timely filed her appeal to this Court, and we awarded her an appeal on the following assignments of error:
- The trial court erroneously ruled that the child was a patient of Dr. Roberts; and that her claim arose under the Medical Malpractice Act and was subject to the statutory cap on damages.
- The trial court erroneously reduced the verdict based on the Medical Malpractice Act.
II. Analysis
A. Standard of Review
The issues whether Simpson is a patient within the meaning of the Act and whether the health care which was provided or should have been provided is covered by the Act are questions of statutory interpretation. Well-established principles guide our review of such questions. Issues of statutory interpretation are pure questions of law that this Court reviews de novo. Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007). When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Id. We must give effect to the legislature‘s intention as expressed by the language unless a literal interpretation of the language would result in a manifest absurdity. Id. If a statute is subject to more than one interpretation, this Court must “apply the interpretation that will carry out the legislative intent behind the statute.” Id.
B. Legislative History
The origin of Virginia‘s Medical Malpractice Act is well-documented. In 1976, the General Assembly determined that the increase in medical malpractice claims was directly affecting the cost and availability of medical malpractice insurance, and that without such insurance, health care providers could not be expected to continue providing medical care for the Commonwealth‘s citizens. Etheridge v. Medical Center Hospitals, 237 Va. 87, 93, 376 S.E.2d 525, 527 (1989). Because of this threat to medical care services, the General Assembly enacted the Virginia Medical Malpractice Act. Id.
The General Assembly took the unusual step of including a preamble of the Act, in which it explained the need and reasons for the legislation. We are aided in our understanding of legislative intent by the unusually explicit statement of legislative purpose in the preamble. See Bulala v. Boyd, 239 Va. 218, 227, 389 S.E.2d 670, 674 (1990). The preamble states:
Whereas, the General Assembly has determined that it is becoming increasingly difficult for health care providers of the Commonwealth to obtain medical malpractice insurance with limits at affordable rates in excess of $750,000; and
Whereas, the difficulty, cost and potential unavailability of such insurance has caused health care providers to cease providing services or to retire prematurely and has become a substantial impairment to health care providers entering into practice in the Commonwealth and reduces or will tend to reduce the number of young people interested in or willing to enter health care careers; and
Whereas, these factors constitute a significant problem adversely affecting the
public health, safety and welfare which necessitates the imposition of a limitation on the liability of health care providers in tort actions commonly referred to as medical malpractice cases[.]
1976 Acts ch. 611.
One component of the Act is the statutory cap on damages in any verdict returned against a health care provider, which is set out in
C. Definition of Patient/Application of Cap
There are several terms defined in the Act that are applicable to our analysis here. A “patient” is defined as:
[A]ny natural person who receives or should have received health care from a licensed health care provider except those persons
who are given health care in an emergency situation which exempts the health care provider from liability for his emergency services in accordance with § 8.01-225 or 44-146.23.
[A]ny tort action or breach of contract action for personal injuries or wrongful death, based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient.
[A]ny act, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient‘s medical diagnosis, care, treatment or confinement.
Simpson argues that, at the time Dr. Roberts injured her, she was a fetus and therefore did not meet the definition of a “patient” because she was not yet a “natural person.” This Court has consistently followed the rule that a fetus is part of the mother, and injury to the fetus is injury to the mother. If the fetus is never born alive, the fetus never develops a legal claim, but the mother may recover for the physical injury and mental suffering associated with a stillbirth.4 Modabar v. Kelley, 232 Va. 60, 66, 348 S.E.2d 233, 236-37 (1986). However,
if the child is born alive, the child may bring a claim for the injury suffered in utero.
In Kalafut v. Gruver, 239 Va. 278, 283-84, 389 S.E.2d 681, 684 (1990), we held that “a tortfeasor who causes harm to an unborn child is subject to liability to the child, or to the child‘s estate, if the child is born alive.” This is often referred to as the “conditional liability rule.” Id. at 284, 389 S.E.2d at 684. We explained that
the test is not, as defendant implies, whether the decedent could have maintained a personal injury action at the time of defendant‘s negligence or, stated differently, whether a fetus can maintain a tort action at the time it is injured in utero. Rather, the statutory test is whether, had death not ensued, the person could subsequently have maintained a personal injury action. Clearly, the answer to that question is in the affirmative in the case of a live birth.
Id. at 285, 389 S.E.2d at 684-85.
We applied this rule in the context of a medical malpractice action in the case of Bulala, 239 Va. 218, 389 S.E.2d 670, which was decided the same day as Kalafut. In Bulala, we considered whether a child, born alive, who was injured during labor, was a “patient” of the obstetrician who should have
In Castle v. Lester, 272 Va. 591, 636 S.E.2d 342 (2006), we reaffirmed our previous ruling in Bulala, holding that “when [a] defendant-doctor‘s negligence caused the child, though born alive, to be seriously impaired.... the mother and child were both ‘patients’ of the defendant, each of whom was entitled to a separate statutory damage cap under the Virginia Medical Malpractice Act.” 272 Va. at 602, 636 S.E.2d at 347 (citation omitted).
Simpson attempts to distinguish her situation from that in Bulala by arguing that Dr. Roberts was never intended to deliver her or to provide her with health care at any point in her life. She contends that his only role was to conduct amniocentesis, which occurred before she was a person and a “patient” under the Act. The facts of the case and this Court‘s precedent, however, do not support Simpson‘s position.
As we stated in Kalafut, the test is not whether Simpson could have maintained a personal injury action at the time of Dr. Roberts’ negligence or, stated differently, whether a fetus can maintain a tort action at the time an injury is suffered in utero. 239 Va. at 285, 389 S.E.2d at 684-85. Rather, the statutory test is whether, if death does not ensue, a person could subsequently have maintained a personal injury action. Id. In Kalafut and Bulala, our answer to that question was in the affirmative in the case of a live birth.
The evidence presented at trial was that the amniocentesis was performed, at least in part, for Simpson‘s benefit to determine whether her lungs were developed enough that she could be safely delivered. When Dr. Roberts performed this procedure, he was providing health care to Simpson and her mother. If Simpson had never been born alive, her mother would have been able to recover for the physical and emotional injuries associated with a stillbirth. However, once Simpson was born alive, she became a natural person under the Act. Upon birth, she became a patient of Dr. Roberts under the Act and had her own claim against Dr. Roberts. Under the Act, her claim for negligence included health care provided in utero consistent with the statutory definition. Our holding in Castle is applicable here: Dr. Roberts’ negligence in performing the amniocentesis “caused the child, though born alive, to be seriously impaired.... the mother and child were both ‘patients’ of the defendant, each of whom was entitled to a separate statutory damage cap under the Virginia Medical Malpractice Act.” Castle, 272 Va. at 602, 636 S.E.2d at 347 (citation omitted).
Under this Court‘s holdings in Bulala, Castle, and Kalafut, Simpson became a “patient” when she was born alive. Having determined that Simpson became a patient, we look to the statutory definition of “health care” to determine whether her claim falls within the Act. The definition of “health care” is sufficient to encompass the medical services and procedures that Roberts provided or should have provided while Simpson was in utero. Interpreting this statute in any other manner would be contrary to the clear legislative intent expressed by the General Assembly to have the statutory cap apply “[i]n any verdict returned against a health care provider in an action for malpractice.”
III. Conclusion
We will affirm the judgment of the trial court that Virginia‘s statutory cap on damages applies to Simpson‘s cause of action against the defendants in this case.
Affirmed.
MARISSA R. SIMPSON, AN INFANT, WHO SUES BY HER FATHER AND NEXT FRIEND v. DAVID ROBERTS, ET AL.
Record No. 121984
Supreme Court of Virginia
January 10, 2014
JUSTICE McCLANAHAN, concurring.
I concur in the judgment of the Court because I agree the Act applies to Simpson‘s claim against Dr. Roberts. However, I would hold that Simpson became a “patient” as defined by the Act when Dr. Roberts performed the amniocentesis – the date she received the alleged negligent treatment.
The Act‘s definitions of “patient” and “health care” focus on whether and when treatment is, or should have been, performed by a health care provider, not on when the patient has a cause of action – an entirely separate issue. Specifically, the Act defines “patient” as “any natural person who receives or should have received health care from a licensed health care provider.”
Although the term “natural person” is not defined in the Act, I believe the General Assembly intended to include children in utero who are treated by a health care provider within the meaning of “patient” without regard to whether a cause of action may be brought by the child against such physician at the time treatment is rendered.
Notably, in 2012, the General Assembly amended the wrongful death statute to recognize that an action may be brought against a tortfeasor for the wrongful death of a child in utero. Addressing actions for “fetal death” brought under the Virginia Medical Malpractice Act, the General Assembly stated that “where the wrongful act that resulted in a fetal death also resulted in the death of another fetus of the natural mother or in the death or injury of the natural mother, recovery for all damages sustained as a result of such wrongful act shall not exceed the limitations on the total amount recoverable for a single patient for any injury under § 8.01-581.15.” 2012 Acts ch. 725 (enacting
Although the majority holds it is immaterial whether Simpson was a patient at the time she was treated by Dr. Roberts, our precedent leaves no doubt that the determination of whether a physician-patient relationship exists is made with reference to the time that treatment is, or should have been, rendered. For example, in Fruiterman v. Granata, 276 Va. 629, 668 S.E.2d 127 (2008), we required the father in a wrongful birth action to show the existence of a physician-patient relationship at the time the treatment was, or should have been, rendered. As we stated, “[t]he question whether [the father] had a physician-patient relationship with [the physician],
In Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1990), this Court recognized the necessity of finding the existence of a physician-patient relationship when treatment was, or should have been, rendered. In determining whether the child in Bulala was entitled to the benefit of a separate cap, the Court held that the child was a patient and entitled to a separate cause of action “because she was a ‘natural person’ who, at the instant of birth, received or ‘should have received’ health care from defendant.” 239 Va. at 229, 389 S.E.2d at 676. The Court‘s holding was consistent not only with the Act‘s requirement that a physician-patient relationship exist when treatment is, or should have been, rendered, but also with the well-established principle that a physician‘s duty to a patient arises upon the creation of that relationship. See
In my view, the majority improperly extrapolates into the definition of “patient” this Court‘s test for determining when a cause of action arises in tort for injuries to a child in utero. In Kalafut v. Gruver, 239 Va. 278, 283-86, 389 S.E.2d 681, 684-85 (1990), this Court recognized that a tortfeasor will be subject to liability for harm caused to an unborn child when that child is born alive.2 Applying the language of Virginia‘s wrongful death statute, the Court explained that under the language of the statute, the test is “whether, had death not ensued, the person could subsequently have maintained a personal injury action.” Id. at 285, 389 S.E.2d at 684-85.3 In adopting a cause of action for harm to unborn children, the Court stated that “we have drawn the line between nonliability and liability for prenatal injury at the moment of live birth of the child.” Id. at 284, 389 S.E.2d at 684. The test adopted by the Court in Kalafut, while determinative of when a cause of action for prenatal injury
utero is a “patient” under the Virginia Medical Malpractice Act.4
Furthermore, there is no language in the Act that would evidence an intent by the General Assembly that this Court‘s evolving treatment of the legal status of a child in utero should be incorporated into its definitions of “patient” and “health care,” both of which focus on whether and when treatment is, or should have been, rendered, not on when the patient has a cause of action for negligent treatment.
For these reasons, I would hold that Simpson became a “patient” of Dr. Roberts when he performed the amniocentesis. At that time, the physician-patient relationship was created, which in turn, gave rise to Dr. Roberts’ duty. Therefore, the Act and its statutory cap on damages applied to Simpson‘s claim. Accordingly, while I depart from the majority‘s rationale, I concur with the Court‘s decision to affirm the judgment of the trial court.