Commonwealth v. Bakke

620 S.E.2d 107, 46 Va. App. 508, 2005 Va. App. LEXIS 371
CourtCourt of Appeals of Virginia
DecidedSeptember 27, 2005
Docket2351044
StatusPublished
Cited by15 cases

This text of 620 S.E.2d 107 (Commonwealth v. Bakke) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Bakke, 620 S.E.2d 107, 46 Va. App. 508, 2005 Va. App. LEXIS 371 (Va. Ct. App. 2005).

Opinions

JAMES W. BENTON, JR., Judge.

The Workers’ Compensation Commission awarded benefits and expenses under the Virginia Birth-Related Neurological Compensation Act, Code §§ 38.2-5009 through 38.2-5021, to Michele Bakke and Jonathan Bakke, parents and next friends of Jenna Marie Bakke. The Commonwealth of Virginia, Virginia Birth-Related Neurological Injury Compensation Program, and the Virginia Birth-Related Neurological Injury Compensation Program Board (collectively designated “the Program”) contend the commission erred (1) in applying the Act’s rebuttable presumption that the infant’s injury is a birth-related neurological injury, (2) in finding that some of the physicians were the most qualified to evaluate the timing of the infant’s injury, (3) in concluding that evidence was insufficient to rebut the presumption, and (4) in finding that the [513]*513Program failed to prove a specific non-birth-related cause of the injury. We affirm the commission’s award.

I.

During her pregnancy, Michele Bakke received a diagnosis of HELLP syndrome (hemolysis, elevated liver enzyme levels and low platelet count) and preeclampsia. Because of the life-threatening dangers to Bakke and her child associated with these conditions and because of Bakke’s low platelet count, physicians delivered her child by cesarian section without labor. At her birth on September 2, 1999, the infant’s gestational age was estimated to be twenty-nine weeks. She weighed .885 kilograms and was 33 centimeters long. The medical records indicate the infant had “NO RESPIRATION” at delivery and was intubated immediately. A handwritten note included -within the delivery records shows that she “did make some resp effort.” At that time, the infant’s Apgar score was five. Five minutes after birth, her Apgar score was seven. When the infant was admitted to the neonatal intensive care unit, a note indicated her condition as “responsive in severe respiratory distress.” The infant’s chest x-ray report indicated “WHITE OUT LUNGS,” and the infant was put on a ventilator, where she remained for a month. The discharge summary noted diagnoses for twelve diseases or conditions.

The medical records from the period of the infant’s birth to her discharge from the hospital on December 7, 1999 are extensive. Likewise, the commission’s record contains extensive testimony, reports, and other documents from physicians regarding the infant’s condition at birth and later. In two succinct sentences, the commission addressed the nub of the issue in this case:

The medical professionals who have evaluated [the infant’s] medical history disagree regarding when and how [she] actually sustained the injury causing her cerebral palsy. While Dr. [James T.] Christmas and the members of the [medical panel] who reviewed [the infant’s] case have opined that [she] did not sustain an injury during the course [514]*514of her labor, delivery, resuscitation or immediately after her birth, Dr. [J. Peter] VanDorsten, Dr. [Daniel] Lefton, Dr. [M. Elizabeth] Latimer and Dr. [Marcus C.] Hermansen have all opined that [she] was injured around the time of her birth.

In a lengthy opinion, the commission reviewed in detail the medical evidence and found that the more persuasive opinions were rendered by those physicians who opined that the damage to the infant’s brain was caused at birth. The Program contends that the commission’s reasoning is flawed and that the award should be reversed.

II.

The Virginia Birth-Related Neurological Injury Compensation Act provides compensation to families whose infants suffer “birth-related neurological injuries” caused by a participating physician or a participating hospital. Code §§ 38.2-5000 to 38.2-5021. A “birth-related neurological injury” is defined as follows:

[I]njury to the brain or spinal cord of an infant caused by the deprivation of oxygen or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period in a hospital which renders the infant permanently motorically disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be cognitively evaluated, cognitively disabled.

Code § 38.2-5001. Thus, to satisfy this statutory definition the following four factors necessarily must be established:

(1) The infant sustained “an injury to the brain or spinal cord” that was “caused by deprivation of oxygen or mechanical injury.”
(2) The injury occurred “in the course of labor, delivery or resuscitation necessitated by a deprivation of oxygen or mechanical injury that occurred in the course of labor or delivery, in a hospital.”
(3) The injury rendered the infant “permanently motorically disabled and (i) developmentally disabled or (ii) for infants [515]*515sufficiently developed to be cognitively evaluated, cognitively disabled.”
(4) Such disability caused “the infant to be permanently in need of assistance in all activities of daily living.”

Central Virginia Obstetrics & Gynecology Assoc., P.C. v. Whitfield, 42 Va.App. 264, 273, 590 S.E.2d 631, 635-36 (2004) (quoting Code § 38.2-5001) (footnote omitted).

III.

Initially, we address the Program’s contention that the commission “err[ed] in applying the presumption set forth in ... Code § 38.2-5008.” We conclude that this claim lacks merit.

“The legislature, recognizing the difficulty in proving when, but not whether, such an injury was sustained, enacted a presumption to assist potential claimants in obtaining benefits.” Wolfe v. Virginia Birth-Related Neuro. Injury Comp. Pgm., 40 Va.App. 565, 578, 580 S.E.2d 467, 473 (2003). This presumption is described by the statute as follows:

A rebuttable presumption shall arise that the injury alleged is a birth-related neurological injury where it has been demonstrated, to the satisfaction of the Virginia Workers’ Compensation Commission, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury, and that the infant was thereby rendered permanently motorieally disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be cognitively evaluated, cognitively disabled.

Code § 38.2-5008(A)(1). “Once the presumption applies, the burden of proof shifts to the party opposing the presumption to disprove elements two and four[, as listed in Part II above], and thereby establish ‘that the injuries alleged are not birth-related neurological injuries within the meaning of the chapter.’ ” Whitfield, 42 Va.App. at 273, 590 S.E.2d at 636 (quoting Wolfe, 40 Va.App. at 578, 580 S.E.2d at 474 and Code § 38.2-5008(A)(1)).

[516]*516On its review, the commission ruled that the deputy commissioner “concluded that the medical evidence predominated in establishing that the presumption provided in Code § 38.2-5008 applies to [the infant’s] case and the program has not requested review of that finding.” Credible evidence in the record supports this ruling.

The deputy commissioner found,

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Bluebook (online)
620 S.E.2d 107, 46 Va. App. 508, 2005 Va. App. LEXIS 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bakke-vactapp-2005.