PRESENT: All the Justices
MARISSA R. SIMPSON, AN INFANT, WHO SUES BY HER FATHER AND NEXT FRIEND OPINION BY v. Record No. 121984 JUSTICE DONALD W. LEMONS JANUARY 10, 2014 DAVID ROBERTS, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE William D. Broadhurst, Judge
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, Code §§ 8.01-581.1 et seq. ("Act"), and was
subject to the Act's statutory cap on damages, Code § 8.01-
581.15.
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
1 Simpson also sued Dr. Leslie E. Badillo and Carilion Healthcare Corporation; however, those parties are not involved in this appeal. 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 judgment 2 asserting two
alternative counts against the defendants: one for medical
2 Simpson filed her amended motion for judgment on September 25, 2005, prior to the amendment of Part Three of the Rules of 2 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
Court, effective January 1, 2006, providing that "[a] civil action shall be commenced by filing a complaint in the clerk's office." Rule 3:2(a). Her second amended pleading, filed on May 30, 2006, was styled as a "Second Amended Complaint." 3 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 defendants filed a motion to reduce the jury verdict
pursuant to Virginia's statutory cap under the Act. Simpson
filed an opposition to this motion and a motion asking the trial
court to reconsider its previous ruling sustaining the
defendants' demurrer on Simpson's common law cause of action
against Dr. Roberts and Southwest Virginia Physicians for Women,
Inc. 3
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:
3 Simpson agreed that the statutory cap applied to her verdict against Dr. Terry. Her argument that the cap does not apply is limited to Dr. Roberts and his employer. 4 1. 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.
2. 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
5 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
6 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 Code § 8.01-581.15. The purpose of the statutory cap
is to provide a "security blanket" to health care providers and
their insurers, to know what limits in coverage should be
carried and to keep insurance available and affordable. Gen.
Assem. J. Subcomm. Studying Virginia's Medical Malpractice Laws,
Interim Report, H. Doc. No. 21, at 12 (1985). The General
Assembly determined that the cap on recovery was an appropriate
means of addressing the problem described in the preamble.
Bulala, 239 Va. at 227-28, 389 S.E.2d at 675. It is clear that
the intent of the legislature was to have the statutory cap
apply "[i]n any verdict returned against a health care provider
in an action for malpractice." Code § 8.01-581.15.
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
7 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.
Code § 8.01-581.1. Malpractice is defined as:
[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.
Id. Health care is defined as:
[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.
Id.
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,
4 The amendments to Code § 8.01-50(B)&(C) effected by Acts 2012, ch. 725 were not in effect at the time this cause of action arose. 8 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 been present at her delivery. Id. at 229, 389
S.E.2d at 675-76. In Bulala, the defendant doctor failed to
arrive at the hospital in a timely fashion to monitor the mother
9 during her labor and was not present for the delivery. The baby
suffered asphyxia which caused severe birth defects. Id. at
223, 389 S.E.2 at 672. We held that the baby and the mother
were each entitled to a separate cap under the Act because once
the baby was born alive she became a "person" and met the
definition of a "patient" under the Act. Id. at 229, 389 S.E.2d
at 675-76. The baby was entitled to her own separate damages
because at the moment of live birth, she became a patient who
should have received care from the defendant doctor. Id.
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.
10 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
11 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
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." Code § 8.01-581.15. "[E]very statute is to be
read so as to promote the ability of the enactment to remedy the
mischief at which it is directed." Bulala, 239 Va. at 227, 389
S.E.2d at 674 (citations and internal quotation marks omitted).
Simpson's interpretation of the Act potentially would expose
health care providers who treat pregnant women to unlimited
liability. Such a result would be contrary to what the General
12 Assembly intended when it passed the Act, and we decline to
accept her construction of the statute.
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.
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."
Code § 8.01-581.1. "Health care" is defined as treatment
performed or which should have been performed "on behalf of a
patient during the patient's medical diagnosis, care, treatment
or confinement." Id. (emphasis added). Therefore, the Act
13 intends, and indeed assumes, that the physician-patient
relationship exists when the treatment is, or should have been,
rendered. This conclusion is compelled by basic principles
governing the physician-patient relationship under which "[a]
physician's duty arises only upon the creation of a physician-
patient relationship." Didato v. Strehler, 262 Va. 617, 626,
554 S.E.2d 42, 47 (2001) (quoting Lyons v. Grether, 218 Va. 630,
633, 239 S.E.2d 103, 105 (1977)). There is no language in the
Act indicating that the General Assembly intended its definition
of "patient" to relate back to treatment rendered prior to the
creation of the physician-patient relationship and, thus, prior
to the existence of any duty.
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. Code § 8.01-2 defines "person" to
"include individuals, a trust, an estate, a partnership, an
association, an order, a corporation, or any other legal or
commercial entity." Therefore, the definition of "patient"
should properly be understood to mean natural human beings as
distinguished from artificial entities.
14 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 Code § 8.01-50(C)). Thus, in recognizing actions for
fetal death under the Act, the General Assembly assumed that an
unborn child was a "natural person" for purposes of the
definition of "patient," without finding it necessary to amend
the definition of "patient" under the Act.
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
15 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],
however, turns solely on the facts surrounding [the date health
care was provided to the mother]." Id. at 644, 668 S.E.2d at
136. This was so based on the "language included at the end of
the definition of 'health care,' referring to any act or
treatment which should have been furnished 'during the patient's
medical diagnosis, care, treatment or confinement.'" Id. at
643, 668 S.E.2d at 135. (quoting Code § 8.01-581.1) (emphasis in
original). See also Gonzalez v. Fairfax Hosp. System, Inc., 239
Va. 307, 310, 389 S.E.2d 458, 459 (1990) (Plaintiff received
"health care" within the meaning of the Act because "[t]he
alleged negligent acts occurred while [plaintiff] was receiving
treatment as a patient.") (emphasis added).
In Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1976), 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
16 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 Code § 8.01-581.1; Didato,
262 Va. at 626, 554 S.E.2d at 47. 1
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
1 In Bulala, we were asked to determine whether the limitation of damages provided for in Code § 8.01-581.15 applied individually to the mother and her infant daughter or overall to both plaintiffs when the damages arose from the same act or acts of medical malpractice. See Bulala, 239 Va. at 222, 389 S.E.2d at 671-72. There was no dispute that the Act applied to the daughter's claim. Rather, the issue was whether the daughter was entitled to her own individual cap or whether her claim fell within the mother's statutory cap. In that context, we explained that "at the moment of live birth, the child became the patient of [Dr. Bulala]," the physician responsible for the delivery of the child. Id. at 229, 389 S.E.2d at 676. Because the child alleged negligence against Dr. Bulala arising from his failure to provide care at her birth, we were not asked, and indeed it was unnecessary, to determine whether an unborn child may be deemed a "patient" of a health care provider where the health care provider was not obligated to provide treatment at the time of birth. Rather, the disagreement in Bulala "existed . . . as to whom was a proper plaintiff," and not as to whether the child's claim alleged malpractice within the meaning of the Act in the first place. See Castle v. Lester, 272 Va. 591, 603, 636 S.E.2d 342, 348 (2006).
17 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 will lie, has no bearing on whether a child in
2 Despite recognizing a cause of action for injuries to unborn children who are born alive, the Court nevertheless refused to abandon its view that "in tort litigation . . . an unborn child is a part of the mother until birth." Modaber v. Kelley, 232 Va. 60, 66, 348 S.E.2d 233, 236-37 (1986); see Kalafut, 239 Va. at 284-85, 389 S.E.2d at 684-85. The Court's retention of this view, however, did not vitiate the duty owed by a tortfeasor to a child in utero, the breach of which may give rise to a cause of action in tort. Likewise, it did not vitiate the duty owed by a physician to a child in utero, the breach of which may give rise to a cause of action for medical malpractice. Instead, the duty owed by a physician to a child in utero is based on whether a physician-patient relationship has been created and cannot arise absent the existence of such relationship. 3 The wrongful death statute now provides a cause of action for the wrongful death of a child in utero. See Code § 8.01-50(B), added by 2012 Acts ch. 725.
18 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.
4 The majority relies upon Bulala for the proposition that the Act's definition of "patient" depends on when a cause of action exists. As stated previously, the issue in Bulala was whether the child was entitled to a separate cause of action and statutory cap on damages. Because she alleged negligent treatment at her birth, the Court was necessarily focused on her status as a patient at birth. To the extent the Court incorporated into the definition of "patient" the test it adopted in Kalafut for determining when a cause of action exists for prenatal injury, I believe Bulala should be clarified.