Pulliam v. Coastal Emergency Services of Richmond, Inc.

Present: Carrico, C.J., Compton, Hassell, Keenan, Koontz,
and Kinser, JJ., and Poff, Senior Justice

KARL B. PULLIAM, EXECUTOR OF THE
ESTATE OF ELNORA R. PULLIAM
OPINION BY
v. Record No. 980659 CHIEF JUSTICE HARRY L. CARRICO
January 8, 1999
COASTAL EMERGENCY SERVICES
OF RICHMOND, INC., ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D’Alton, Jr., Judge

In this appeal, we are called upon to consider again

the constitutionality of the medical malpractice cap

imposed by Code § 8.01-581.15. 1 We previously upheld the

constitutionality of the cap in Etheridge v. Medical Center

Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989). Two other

issues involving the cap become pertinent if we reaffirm

Etheridge. Because we conclude that the medical

malpractice cap does not violate any constitutional

guarantees, we will uphold the cap’s constitutionality and

reaffirm Etheridge.

In a motion for judgment filed below, the plaintiff,

Karl B. Pulliam, Executor of the Estate of Elnora R.

Pulliam, sought damages of $2,000,000 from the defendants,

Coastal Emergency Services of Richmond, Inc. (Coastal) and

1
Code § 8.01-581.15 provides that “[i]n any verdict returned
against a health care provider in an action for
malpractice[,] . . . the total amount recoverable for any
its agent, Dr. Thomas Anthony DiGiovanna (Dr. DiGiovanna),

for his alleged negligence in the death of Mrs. Pulliam. 2

The jury returned a verdict in favor of the plaintiff

against both defendants in the sum of $2,045,000, plus

interest from the date of Mrs. Pulliam’s death.

Upon motion of the defendants, the trial court reduced

the verdict to $2,000,000, the amount sued for, and,

applying the medical malpractice cap, further reduced the

verdict to $1,000,000 and entered judgment against both

defendants in that amount. Holding that prejudgment

interest is subject to the cap, the trial court disallowed

the jury’s award of interest running from the date of Mrs.

Pulliam’s death. We awarded the plaintiff this appeal.

The record shows that Coastal was created to provide

emergency physicians to staff emergency departments in

hospitals and that it contracts with hospitals for this

purpose. On October 27, 1989, Coastal contracted with

Southside Regional Medical Center (Southside Regional) in

Petersburg to provide “at least five Physicians . . . to

render professional and administrative services in

[Southside’s Emergency] Department on a full-time basis.”

injury to, or death of, a patient shall not exceed one
million dollars.”
2
It is a concession in the case that Coastal “is liable in
respondeat superior” for the negligence of Dr. DiGiovanna.

2
 Coastal recruits doctors to work in emergency

departments “from a number of avenues.” On October 12,

1994, Coastal contracted with Dr. DiGiovanna “to provide

services on and during the days and hours scheduled by

[Coastal]” and assigned him to Southside Regional.

The record shows further that about 3:55 a.m. on

December 15, 1995, Mrs. Pulliam arrived at the emergency

room of Southside Regional complaining of “legs aching.”

She had been diagnosed with influenza two days earlier in

the office of her private physician. At Southside

Regional, she was examined by Dr. DiGiovanna. About 5:00

a.m., Dr. DiGiovanna discharged Mrs. Pulliam after

prescribing a muscle relaxant and giving her printed

instructions on influenza and additional instructions

concerning bed rest.

Shortly after 11:00 a.m. the same day, Mrs. Pulliam

returned to the emergency room of Southside Regional

complaining of general weakness, particularly in her lower

extremities. Following a physical examination by Dr. Boyd

Roy Wickizer, Jr., Mrs. Pulliam was started on intravenous

fluids and subjected to a CT scan and a lumbar puncture. 3

Thereafter, she was transferred to the intensive care unit,

3
Dr. Wickizer was named originally as a defendant to the
plaintiff’s motion for judgment but was later nonsuited.

3
where her condition worsened. She was pronounced dead at

9:08 p.m. An autopsy revealed that the cause of death was

bacterial pneumonia and bacteremia. She was survived by

her husband, who is the executor of her estate, and a son.

A. Constitutionality of Medical Malpractice Cap.

The plaintiff’s assignment of error on this point

states that “[a]s a matter of law, the trial court erred in

failing to conclude that the cap on medical malpractice

awards is unconstitutional as applied to Coastal and to Dr.

DiGiovanna.” 4 In considering this assignment of error,

we adhere to the well-settled principle that all
actions of the General Assembly are presumed to
be constitutional. This Court, therefore, will
resolve any reasonable doubt regarding a
statute’s constitutionality in favor of its
validity. Any judgment as to the wisdom and
propriety of a statute is within the legislative
prerogative, and this Court will declare the
legislative judgment null and void only when the
statute is plainly repugnant to some provision of
the state or federal constitution.

Supinger v. Stakes, 255 Va. 198, 202, 495 S.E.2d 813, 815

(1998) (citations and interior quotation marks omitted).

4
We emphasize the “as applied” language of the plaintiff’s
assignment of error because, in oral argument, the
plaintiff contended that legislation adopted in 1994 adding
entities like Coastal to the definition of “[h]ealth care
provider” was facially invalid, and the assignment of error
does not permit that argument. Rule 5:17(c). Furthermore,
the argument is foreclosed because it was not made in the
trial court, in the plaintiff’s petition for appeal, or in
his appellate briefs. Rule 5:25.

4
 In Etheridge, we rejected challenges to the

constitutionality of the medical malpractice cap based upon

contentions that the cap “violates the Virginia

Constitution’s due process guarantee, jury trial guarantee,

separation of powers doctrine, prohibitions against special

legislation, and equal protection guarantee, as well as

certain parallel provisions of the Federal Constitution.”

237 Va. at 92, 376 S.E.2d at 527. The plaintiff makes the

same challenges here, but amplifies the arguments in

several respects. 5

It is clear that we cannot grant the plaintiff relief

without overruling Etheridge. Immediately, therefore, the

doctrine of stare decisis is implicated.

In Virginia, the doctrine of stare decisis is
more than a mere cliche. That doctrine plays a
significant role in the orderly administration of
justice by assuring consistent, predictable, and
balanced application of legal principles. And when a
court of last resort has established a precedent,
after full deliberation upon the issue by the court,
the precedent will not be treated lightly or ignored,
in the absence of flagrant error or mistake.

Selected Risks Ins. Co. v. Dean, 233 Va. 260, 265, 355

S.E.2d 579, 581 (1987) (emphasis added).

5
On brief, the plaintiff argues a claim not asserted in
Etheridge, i.e., that the cap “does not express its object
in its title [in violation of art. IV, § 12 of the
Constitution of Virginia].” However, the plaintiff did not
raise this point in the trial court or in the petition for
appeal, and we will not consider it now. Rule 5:25.

5
 The inquiry becomes, therefore, whether flagrant error

or mistake exists in the Etheridge decision. The plaintiff

contends that such error does exist and, therefore, that

“[t]he doctrine of stare decisis should not deter this

Court from reversing Etheridge.”

The plaintiff argues that the medical malpractice cap

is unconstitutional on each of seven independent grounds.

We will consider these grounds seriatim.

1. Right to Trial by Jury.

Article I, § 11 of the Constitution of Virginia

provides “[t]hat in controversies respecting property, and

in suits between man and man, trial by jury is preferable

to any other, and ought to be held sacred.” In Etheridge,

we noted that, at the time the Constitution was adopted,

the jury’s sole function was to resolve disputed facts,

that this continues to be a jury’s sole function, 6 and that

the jury’s fact-finding function extends to the assessment

of damages. 237 Va. at 95-96, 376 S.E.2d at 529. We

stated, however, that “[o]nce the jury has ascertained the

facts and assessed the damages, . . . the constitutional

mandate is satisfied [and thereafter], it is the duty of

6
In Speet v. Bacaj, 237 Va. 290, 296, 377 S.E.2d 397, 400
(1989), and Supinger v. Stakes, 255 Va. 198, 205, 495
S.E.2d 813, 815 (1998), we reaffirmed the proposition that

6
the court to apply the law to the facts.” Id. at 96, 376

S.E.2d at 529. The medical malpractice cap, we said, does

nothing more than establish the outer limits of a remedy;

remedy is a matter of law and not of fact; and a trial

court applies the remedy’s limitation only after the jury

has fulfilled its fact-finding function. Id. Hence, we

concluded, the cap does not infringe upon the right to a

jury trial. Id. at 97, 376 S.E.2d at 529. 7

a jury’s sole common law function is to resolve disputed
facts.
7
The plaintiff criticizes the Etheridge majority for its
interpretation of the opinion in W.S. Forbes & Co. v.
Southern Cotton Oil Co., 130 Va. 245, 108 S.E. 15 (1921).
The plaintiff says that “the linchpin of the reasoning of
the Etheridge majority [concerning trial by jury] was a
statement in [Forbes], taken out of context and given a
broad meaning never intended by the Forbes court.” This is
the statement in Forbes the plaintiff cites: “The province
of the jury is to settle questions of fact, and when the
facts are ascertained the law determines the rights of the
parties. This law is announced by the court or judge.”
130 Va. at 260, 108 S.E. at 20. However, in the same
paragraph, the Forbes court also said this: “If no . . .
evidence is offered . . . that would warrant a jury . . .
in finding a verdict in accordance therewith, then the
rights of the parties become a question of law, and there
is no controversy to be determined by a jury, and the
constitutional guaranty does not apply.” Id. at 261, 108
S.E. at 20 (emphasis added). This is the conclusion we
drew in Etheridge that attracted the plaintiff’s criticism:
“Once the jury has ascertained the facts and assessed the
damages, . . . the constitutional mandate is satisfied.
Thereafter, it is the duty of the court to apply the law to
the facts.” Etheridge, 237 Va. at 96, 376 S.E.2d at 529
(citations omitted). We think this conclusion was fully
justified, and we reaffirm it.

7
 The plaintiff says, however, that the Court in

Etheridge “erred by failing to conclude that the mandate of

Article I, § 11 includes the right to receive the amount of

damages awarded by a jury after a proper jury trial.” In

this connection, the plaintiff cites two recent Supreme

Court decisions.

In Hetzel v. Prince William County, ___ U.S. ___, 118

S.Ct. 1210 (1998), the United States Court of Appeals for

the Fourth Circuit set aside as grossly excessive a jury

verdict for damages the plaintiff had been awarded in

district court. The Fourth Circuit remanded the case for

recalculation of the award and the entry of judgment for a

lesser amount. The district court granted the plaintiff’s

motion for a new trial. The Fourth Circuit then granted

the defendant’s petition for mandamus and stayed the

scheduled retrial. The Supreme Court reversed, holding

that the Fourth Circuit had imposed a remittitur without

the option of a new trial and that this action “cannot be

squared with the Seventh Amendment.” ___ U.S. at ___, 118

S.Ct. at 1212.

Feltner v. Columbia Pictures Television, Inc., ___

U.S. ___, 118 S.Ct. 1279 (1998), involved an action by

Columbia, a copyright owner, against Feltner, the owner of

television stations that continued to broadcast programs

8
after Columbia terminated their licenses. A statute gave

Columbia the option of seeking actual damages or statutory

damages, the latter permitted in an amount “as the court

considers just.” ___ U.S. at ___, 118 S.Ct. at 1282.

Columbia chose the statutory route and made a request for a

jury trial, which the district court denied. The trial

judge awarded Columbia a total of $8,800,000, and Feltner

appealed. Applying the Seventh Amendment, the Supreme

Court reversed, holding that, although the statute was

silent on the subject, “the Seventh Amendment provides a

right to a jury trial, which includes a right to a jury

determination of the amount of statutory damages.” Id. 8

The plaintiff says that these two decisions support

his conclusion that the medical malpractice cap violates

his right to a jury trial. We do not agree. In relying on

Hetzel, the plaintiff attempts to equate remittitur with

the medical malpractice cap and argues that, since

remittitur without the option of a new trial violates the

Seventh Amendment right to a jury trial, application of the

cap likewise violates Virginia’s right to a jury trial.

However, the plaintiff’s initial premise is faulty because

8
The plaintiff acknowledges that the Seventh Amendment does
not apply to procedures in state courts, but says that
Supreme Court decisions interpreting the Seventh Amendment

9
remittitur and the cap are not equivalent and do not come

into play under the same circumstances. Remittitur, as

well as additur, is utilized only after a court has

determined that a party has not received a fair and proper

jury trial. Supinger, 255 Va. at 203, 495 S.E.2d at 815.

The cap, however, is applied only after a plaintiff has had

the benefit of a proper jury trial. In the latter

situation, there is no right to a new trial, and the

constitutional mandate has been satisfied.

The plaintiff’s reliance on Feltner is also misplaced.

There, the Court dealt primarily with whether Columbia was

entitled to a jury trial even though it elected to seek

statutory damages. The Court concluded that Columbia had

the right to a jury trial because the common law afforded

copyright owners causes of action for infringement, and

these actions were tried before juries. The Court

recognized that “[t]he Seventh Amendment . . . applies not

only to common-law causes of action, but also to ‘actions

brought to enforce statutory rights that are analogous to

common-law causes of action ordinarily decided in English

law courts in the late 18th century, as opposed to those

customarily heard by courts of equity or admiralty.’”

are highly instructive in defining the scope of the right
to a jury trial in litigation in state courts.

10
Feltner, ___ U.S. ___, 118 S.Ct. at 1284. The Court did

not address the validity of a cap on the recovery of

damages.

Furthermore, while it does not appear that the Supreme

Court has addressed the issue of the validity of state

statutory caps, it has noted the decisions of two circuit

courts of appeals on the subject. See Gasperini v. Center

for Humanities, Inc., 518 U.S. 415, 429 n.9 (1996) (citing

Davis v. Omitowoju, 883 F.2d 1155, 1161-65 (3rd Cir. 1989),

and Boyd v. Bulala, 877 F.2d 1191, 1196 (4th Cir. 1989), as

instances where courts of appeals have held that district

court application of state statutory caps in diversity

cases, post verdict, does not violate the Seventh

Amendment).

Boyd v. Bulala dealt directly with Virginia’s medical

malpractice cap. Noting that this Court recently had

decided Etheridge and upheld the constitutionality of the

cap against assertions, inter alia, that it denies the

right of trial by jury, the Fourth Circuit held that, with

respect to the Virginia Constitution, our decision in

Etheridge was “absolutely binding.” 877 F.2d at 1195.

Concerning the right of trial by jury under the

Seventh Amendment, the Fourth Circuit followed our

reasoning that it is not the role of the jury but of the

11
legislature to determine the legal consequences of the

jury’s factual findings. Id. However, the Fourth Circuit

assigned this additional reason for upholding the validity

of the cap against an assertion that it violated the right

of trial by jury:

It is by now axiomatic that the Constitution does not
forbid the creation of new rights, or the abolition of
old ones recognized by the common law, to attain a
permissible legislative object. Indeed, the district
court conceded that a legislature’s outright abolition
of a cause of action would not violate the seventh
amendment. If a legislature may completely abolish a
cause of action without violating the right of trial
by jury, we think it permissibly may limit damages
recoverable for a cause of action as well.

Id. at 1196 (citations and interior quotation marks

omitted).

Furthermore, the rule that a plaintiff may not recover

more than the amount of an ad damnum clause is akin to a

cap on damages. Yet, the plaintiff in this case has not

challenged the trial court’s reduction of his $2,045,000

jury verdict to $2,000,000, the amount sued for, and it is

doubtful that such a challenge would meet with success.

Nor can it be disputed that, in addition to abolishing

a cause of action, a legislature may extinguish a cause of

action by the imposition of a statute of limitations, for

example, two years from the date of death in the case of an

action for wrongful death. Code § 8.01-244. If it is

12
permissible for a legislature to enact a statute of

limitations completely barring recovery in a particular

cause of action without impinging upon the right of trial

by jury, it should be permissible for the legislature to

impose a limitation upon the amount of recovery as well.

The courts of other states have upheld medical

malpractice caps against assertions that they violate the

right to a jury trial. Johnson v. St. Vincent Hospital,

Inc., 404 N.E.2d 585, 601-02 (Ind. 1980); Murphy v.

Edmonds, 601 A.2d 102, 118 (Md. 1992); English v. New

England Medical Center, Inc., 541 N.E.2d 329, 331-32 (Mass.

1989).

The plaintiff cites several out-of-state cases

declaring medical malpractice caps unconstitutional, but we

find them inapposite. Moore v. Mobile Infirmary Ass’n, 592

So.2d 156 (Ala. 1991), criticized our decision in Etheridge

but distinguished it, stating that Virginia’s

constitutional provision respecting the right to a jury

trial “is materially distinguishable” from Alabama’s. Id.

at 163. Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash.

1989), also criticized Etheridge, but stated that

Virginia’s constitutional provision relating to trial by

jury is “quite different” from Washington’s. Id. at 724.

Smith v. Department of Insurance, 507 So.2d 1080 (Fla.

13
1987), involved an assertion that a medical malpractice cap

violated a constitutional provision guaranteeing a right of

access to the courts. Florida law prohibits the

legislature from abolishing a common law right without

providing a “reasonable alternative.” Id. at 1088. The

cap was declared unconstitutional because the legislature

had “provided nothing in the way of an alternative remedy

or commensurate benefit.” Id. at 1089. Virginia law does

not impose such a quid-pro-quo requirement.

The plaintiff does cite two out-of-state decisions

that are directly opposed to the Etheridge view with

respect to trial by jury. Tenold v. Weyerhaeuser Co., 873

P.2d 413 (Or. 1993); Guzman v. St. Francis Hosp., No. 97-

CV-007107 (Cir.Ct. Milwaukee County Wis. 1998). We

disagree with both decisions.

In summary, we advert to the plaintiff’s argument,

supra, that “the mandate of Article I, § 11 includes the

right to receive the amount of damages awarded by a jury

after a proper trial.” We point out, however, that “the

jury trial guarantee secures no rights other than those

that existed at common law [and] the common law never

recognized a right to a full recovery in tort.” Etheridge,

237 Va. at 96, 376 S.E.2d at 529 (citing Duke Power Co. v.

Carolina Environmental Study Group, Inc., 438 U.S. 59, 88-

14
89 n.32 (1978), and Phipps Adm’r v. Sutherland, 201 Va.

448, 452, 111 S.E.2d 422, 425 (1959)). It follows,

therefore, that the medical malpractice cap does not

impinge upon the right to trial by jury.

2. Special Legislation.

Article IV, § 14 of the Constitution of Virginia

provides that “[t]he General Assembly shall not enact any

local, special, or private law . . . (18) [g]ranting to any

private corporation, association, or individual any special

or exclusive right, privilege, or immunity.” 9 In Etheridge,

we noted that we had previously held that laws may be made

to apply to a class only, even though the class may be

small, provided the classification is reasonable, not

arbitrary, and the law is made to apply to all persons in

the class without distinction. 237 Va. at 102, 376 S.E.2d

at 533. We also noted that if the classification bears a

reasonable and substantial relation to the object sought to

be accomplished, it will survive a special-laws

constitutional challenge. Id.

9
The plaintiff also contends that the medical malpractice
cap “violates Article I, § 4 of the Constitution of
Virginia and its prohibition against ‘exclusive or separate
emoluments or privileges.’” However, as Etheridge points
out, this clause is intended to shield against heredity in
office and has no application to this type of case. 237
Va. at 101, 376 S.E.2d at 532.

15
 We then pointed out that, in enacting the Medical

Malpractice Act, the General Assembly, after a careful and

deliberate study, had determined health care providers

faced increasing difficulty obtaining affordable

malpractice coverage in excess of $750,000, thus reducing

the number of such providers available to serve Virginia’s

citizens. We also pointed out that the General Assembly

had determined that this significant problem adversely

affected the public health, safety, and welfare and

necessitated the imposition of a limitation upon the

liability of health care providers in medical malpractice

actions. Id. at 102-03, 376 S.E.2d at 533.

We observed that the General Assembly had decided that

damage awards in medical malpractice cases should not

exceed $750,000 (now $1,000,000), and we stated that the

limitation applied to all health care providers and all

medical malpractice patients. Id. at 103, 376 S.E.2d at

533. We found that the classification was not arbitrary,

that it bore a reasonable and substantial relation to the

object sought to be accomplished, and that it applied to

all persons belonging to the class without distinction.

Id. Accordingly, we concluded that the legislation did not

violate the prohibition against special legislation. Id.

16
 When we get to the plaintiff’s arguments on this

subject, we encounter considerable difficulty. Aside from

an “as applied” argument involving Coastal only, which we

will consider shortly, the plaintiff stated during oral

argument there were two reasons that the statute imposing

the medical malpractice cap constituted special

legislation.

The first reason, the plaintiff said, is set forth in

the dissent in Fairfax Hospital System, Inc. v. Nevitt, 249

Va. 591, 457 S.E.2d 10 (1995), a case not involving a

special legislation question but an issue concerning the

interaction between the medical malpractice cap and Code

§ 8.01-35.1, which provides that the amount recovered

against one tortfeasor shall be reduced by the amount paid

in settlement by another tortfeasor. In the portion of the

dissent upon which the plaintiff relies, the dissenters

accuse the majority of using the medical malpractice cap,

as it interacts with the release statute, in a manner

“foreign to its purpose and consequent constitutional

justification of fostering affordable medical malpractice

insurance.” Id. at 600, 457 S.E.2d at 15.

The plaintiff’s second reason for saying the cap

constitutes special legislation is based upon a statement

made in a report prepared by the State Corporation

17
Commission in 1975 on “Medical Malpractice Insurance in

Virginia.” This report was attached as an exhibit to

Senate Document 29, which consists of the 1976 interim

report of a legislatively created Commission to Study the

Costs and Administration of Health Care Services. 3 House

and Senate Documents (1976 Session). On page 92 of its

report, the State Corporation Commission stated: “In fact,

existing evidence indicates that several of the more

popular solutions (e.g., a $500,000 limit on the amount

recovered) will not reduce the cost of malpractice premiums

in a jurisdiction like Virginia where awards or settlements

seldom exceed $250,000.” This proves, the plaintiff said

during oral argument, that the cap does not bear a

reasonable and substantial relation to the object sought to

be accomplished and, therefore, constitutes special

legislation.

The difficulty with these two arguments is that they

first surfaced during oral argument before this Court.

They do not appear in the record below, in the plaintiff’s

petition for appeal, or in his appellate briefs.

Consequently, we will not consider them. Rule 5:25.

The plaintiff’s “as applied” argument concerning

Coastal stems from the fact that, in 1994, the General

18
Assembly amended Code § 8.01-581.1 by adding new entities

to the definition of “[h]ealth care provider,” as follows:

(vi) a corporation, partnership, limited
liability company or any other entity,
except a state-operated facility, which
employs or engages a licensed health care
provider and which primarily renders health
care services.

The plaintiff argues that the 1994 amendment contained

no statement of purpose and, therefore, that it fails the

test that a statutory scheme, as applied, must bear a

reasonable and substantial relationship to the object

sought to be accomplished by the legislation. There is a

reasonable inference, however, that the General Assembly

intended the amendment to serve the same purpose as the

original enactment of the medical malpractice cap, i.e., to

provide “a remedy for a perceived social problem, the

unavailability of medical malpractice insurance at

affordable rates.” Etheridge, 237 Va. at 108, 376 S.E.2d

at 536 (Russell, J., dissenting).

The plaintiff also argues that in Schwartz v.

Brownlee, 253 Va. 159, 482 S.E.2d 827 (1997), we said that

the purpose in the enactment of the Medical Malpractice Act

was to enable licensed health care providers to secure

medical malpractice insurance at affordable rates and that

it “would not serve that purpose to extend the protection

19
of the cap to non-health care providers.” Id. at 167, 482

S.E.2d at 832. From this, the plaintiff argues that

because Coastal is not a licensed health care provider,

extension of the cap to Coastal does not bear a reasonable

and substantial relationship to the object sought to be

accomplished by the medical malpractice cap, and the 1994

amendment, therefore, constitutes special legislation.

But the language in Schwartz was limited to licensed

health care providers because, at the time the injury in

Schwartz occurred, the cap was applicable only to licensed

health care providers. We noted that the 1994 amendment

had been enacted, but pointed out that the enactment

occurred subsequent to the injury. Id. at 164 n.3, 482

S.E.2d at 830 n.3. While we stated it would not serve the

purpose of the medical malpractice cap to extend its

protection to non-health care providers, entities like

Coastal are no longer non-health care providers as a result

of the 1994 amendment and, as to them, the statement is now

irrelevant. And it may be added that, under its contract

with Southside Regional, Coastal is required to be covered

by professional liability insurance with limits of at least

$1,000,000 per occurrence and $3,000,000 annual aggregate,

so Coastal has a direct interest in the availability of

20
professional liability insurance at affordable rates and

fits within the class the cap is intended to protect. 10

The remainder of the plaintiff’s “as applied” argument

is confined to the proposition that the medical malpractice

cap concentrates the costs solely upon those whose losses

are greatest while identifying “a specific elite class,

described as ‘health care providers,’ to which it accords

special privileges and immunities that are given to no

other tortfeasors in this Commonwealth.” And the plaintiff

indicates his agreement with the dissent in Etheridge that

the General Assembly acted arbitrarily in restricting the

cap so that it did not apply to “all plaintiffs and all

defendants regardless of their identities.” Etheridge, 237

Va. at 112, 376 S.E.2d at 538.

The difficulty with the plaintiff’s argument and,

indeed, with the dissent in Etheridge, is that both place

much greater emphasis upon the classes affected by the cap

than upon the real test for determining whether a statute

10
Coastal also agreed in its contract with Southside
Regional that “each of [its] Physicians shall be covered by
professional liability insurance with limits of at least
$1,000,000.00 per occurrence and $3,000,000.00 annual
aggregate.” Coastal concedes that this provision only
“obligated [it] to ensure that the Physicians were covered
by malpractice insurance,” rather than obligating Coastal
to provide the coverage itself. Even so, this gives
Coastal at least an indirect interest in the availability
of such insurance at affordable rates.

21
withstands a special-laws challenge. 11 Classifications are

relevant, of course, and should be given consideration in

determining whether a particular legislative act

constitutes special legislation. But the real test “for

statutes challenged under the special-laws prohibitions in

the Virginia Constitution is that they must bear ‘a

reasonable and substantial relation to the object sought to

be accomplished by the legislation.’” Benderson

Development Co. v. Sciortino, 236 Va. 136, 147, 372 S.E.2d

751, 757 (1988) (quoting Mandell v. Haddon, 202 Va. 979,

991, 121 S.E.2d 516, 525 (1961)). And, while we think that

the classification involved in this case is reasonable, not

arbitrary, and that the medical malpractice cap is made to

apply to all the persons within a particular class without

distinction, “the necessity for and the reasonableness of

classification are primarily questions for the legislature.

If any state of facts can be reasonably conceived . . .

that would sustain it, that state of facts at the time the

11
The dissenters in Etheridge were concerned that the
Medical Malpractice Act left “uncovered” entities which
rendered health care services but were not licensed in this
Commonwealth. 237 Va. at 110, 376 S.E.2d at 537. This
concern should be allayed, however, by the 1994 amendment
to Code § 8.01-581.1, which added to the definition of
“[h]ealth care provider” numerous unlicensed entities which
employ or engage licensed health care providers and which
primarily render health care services.

22
law was enacted must be assumed.” Martin’s Ex’rs v.

Commonwealth, 126 Va. 603, 612-13, 102 S.E. 77, 80 (1920).

Here, however, we do not have to assume a set of facts

that would sustain the medical malpractice cap. The actual

facts were as stated in Etheridge: “The General Assembly

concluded [after careful and deliberate study] that

escalating costs of medical malpractice insurance and the

availability of such insurance were substantial problems

adversely affecting the health, safety, and welfare of

Virginia’s citizens.” 237 Va. at 94, 376 S.E.2d at 528.

Given these facts, we think the cap bears a reasonable and

substantial relation to the General Assembly’s objective to

protect the public’s health, safety, and welfare by

insuring the availability of health care providers in the

Commonwealth. Accordingly, we conclude that the medical

malpractice cap does not constitute special legislation.

3. Taking of Property.

Under the Fifth Amendment to the Constitution of the

United States, private property shall not be taken for

public use without just compensation. Under art. I, § 11

of the Constitution of Virginia, private property shall not

be taken or damaged for public uses without just

compensation.

23
 Here, the argument is that the effect of the medical

malpractice cap is to take the property of the plaintiff

and his son in violation of these constitutional

provisions. As the statutory beneficiaries of Mrs.

Pulliam, the argument goes, the plaintiff and his son “had

a property interest in the full measure of the jury’s

verdict.”

We disagree. In Hess v. Snyder Hunt Corp., 240 Va.

49, 392 S.E.2d 817 (1990), we considered a challenge to the

constitutionality of Code § 8.01-250, a statute of repose

which, upon the expiration of a fixed time, “extinguishes

‘not only the legal remedy but also all causes of action,

including those which may later accrue as well as those

already accrued.’” Id. at 52, 392 S.E.2d at 819 (quoting

School Board v. United States Gypsum Co., 234 Va. 32, 37,

360 S.E.2d 325, 327-28 (1987)). The challenge to Code

§ 8.01-250 was that it deprived persons of life, limb, or

property without due process of law in violation of amend.

XIV, § 1 of the United States Constitution and art. I, § 11

of the Virginia Constitution. Hess, 240 Va. at 52, 392

S.E.2d at 820.

We said in Hess that it is only when a right has

accrued or a claim has arisen that it is subject to the

protection of the due process clause. 240 Va. at 54, 392

24
S.E.2d at 821. We said further that “Code § 8.01-250 does

not disturb a vested right, for ‘[n]obody has a vested

right in the continuance of the rules of the common law.’”

Id. (citing Munn v. Illinois, 94 U.S. 113, 134 (1877)).

Continuing, we stated that “the fourteenth amendment does

not forbid a legislature from abolishing old rights

recognized by the common law in order to attain a

permissible legislative objective.” Id. at 54, 360 S.E.2d

at 821. Finally, we said that “if a legislature can

abolish a cause of action for a legitimate legislative

purpose, it also may prevent a cause of action from arising

by enacting a statute of repose for such a purpose.” Id.

This rationale applies with equal force here. The

plaintiff’s cause of action for wrongful death had not

accrued at the time the cap was imposed upon recoveries in

medical malpractice cases. One cannot obtain a property

interest in a cause of action that has not accrued, and

there was nothing to prevent the General Assembly from

limiting the remedy, so far as unaccrued causes of action

are concerned, to attain a permissible legislative

objective without running afoul of the “taking” clauses of

the Federal and State Constitutions. Accordingly, we find

no violation of the “taking” clauses in this case.

4. Due Process.

25
 5. Equal Protection.

In oral argument, the plaintiff combined these two

subjects and attempted to convince the Court that it should

apply an intermediate level of scrutiny, rather than the

lower-level rational basis test, in our due process and

equal protection analysis of the medical malpractice cap. 12

However, we ruled in Etheridge that, in a due process or

equal protection analysis, the rational basis test applies

unless a fundamental right or a suspect class is affected.

237 Va. at 97, 103, 376 S.E.2d at 530, 534. And we noted

that those interests that have been recognized as

“fundamental” include the right to free speech, the right

to vote, the right to interstate travel, the right to

fairness in the criminal process, the right to marry, and

the right to fairness in procedures concerning governmental

deprivation of life, liberty, or property. Id. at 98, 376

S.E.2d at 530. We noted further that suspect

classifications are those based upon race and national

origin and that classifications based upon gender,

alienage, and illegitimacy are entitled to receive a level

12
The plaintiff states on brief that he “incorporates by
reference the due process arguments considered and rejected
by this Court in Etheridge.” However, we do not consider
arguments incorporated by reference; all arguments “must be
made in the appellate briefs.” Williams v. Commonwealth,
248 Va. 528, 537, 450 S.E.2d 365, 372 (1994).

26
of scrutiny between strict scrutiny and the rational basis

test. Id. at 103 n.7, 376 S.E.2d at 534 n.7. Here,

however, no fundamental right or suspect class is affected

by application of the medical malpractice cap.

Accordingly, we are of opinion that Etheridge

enunciated the correct level of scrutiny and that the

rational basis test continues to provide the proper

standard for determining whether there has been a denial of

due process or equal protection in a case involving the

medical malpractice cap. The rational basis test is

satisfied from a due process standpoint if the challenged

legislation has a reasonable relation to a proper purpose

and is not arbitrary or discriminatory, id. at 97, 376

S.E.2d at 530, or, from an equal protection standpoint, if

the legislature could reasonably have concluded that the

challenged classification would promote a legitimate state

purpose, id. at 104, 376 S.E.2d at 534.

We think that the medical malpractice cap passes the

test of constitutionality when judged against these

standards, primarily for the reasons previously enunciated

in Part A(2) of this opinion regarding special legislation.

Accordingly, we hold that the plaintiff has suffered no

denial of due process or equal protection from application

of the cap to the jury verdict in this case.

27
 The plaintiff stated in oral argument, however, that,

even if the rational basis test applies, there still would

be a denial of due process and equal protection in this

case for two reasons, one based upon the dissent in Fairfax

Hospital System, Inc. v. Nevitt, supra, and the other upon

the statement in Senate Document No. 29 concerning the

efficacy of the medical malpractice cap for its intended

purpose. But, as we noted in Part A(2) of this opinion,

arguments based upon the Nevitt dissent and the Senate

Document statement cannot be considered because they were

raised for the first time on appeal. Rule 5:25.

6. Separation of Powers.

7. Province of the Judiciary.

Because these two subjects are related, we will

discuss them together. The plaintiff argues that the

medical malpractice cap violates the separation of powers

doctrine and also invades the province of the judiciary.

In rejecting a separation of powers challenge in

Etheridge, we pointed out that under art. VI, § 1 of the

Virginia Constitution, the General Assembly, subject to

provisions relating to the power and jurisdiction of this

Court, has “the power to determine the original and

appellate jurisdiction of the courts of the Commonwealth.”

237 Va. at 100, 376 S.E.2d at 532. We also noted that

28
under art. IV, § 14 of the Constitution, the General

Assembly’s authority extends “to all subjects of

legislation not herein forbidden or restricted,” and that

the common law is one area in which the General Assembly’s

authority has not been forbidden or restricted. Id.

Accordingly, we said that the legislature has the

power to provide, modify, or repeal a remedy. 237 Va. at

101, 376 S.E.2d at 532. And we concluded that “whether the

remedy prescribed in Code § 8.01-581.15 is viewed as a

modification of the common law or as establishing the

jurisdiction of the courts in specific cases, clearly it

was a proper exercise of legislative power.” 237 Va. at

101, 376 S.E.2d. at 532.

This rationale applies with equal force here, and it

should be sufficient to dispose of the plaintiff’s

arguments concerning separation of powers and the province

of the judiciary, but the plaintiff disagrees. He says

that art. VI, § 5 of the Constitution of Virginia

establishes that “the judiciary, not the legislature, makes

the rules applicable to jury verdicts.”

On brief, the plaintiff quotes art. VI, § 5 as

providing that this Court has “the authority to make rules

governing . . . the practice and procedures to be used in

the courts of the Commonwealth. . . .” However, what the

29
plaintiff has omitted at the end of this quotation is of

crucial importance. The full text of art. VI, § 5 reads as

follows:

The Supreme Court shall have the authority to make
rules governing the course of appeals and the practice
and procedures to be used in the courts of the
Commonwealth, but such rules shall not be in conflict
with the general law as the same shall, from time to
time, be established by the General Assembly.

(Emphasis added.) In addition, Code § 8.01-3, which is

listed in the cross-reference following art. VI, § 5,

provides that, while this Court “may prepare a system of

rules of practice and a system of pleading and the forms of

process, . . . [t]he General Assembly may, from time to

time, by the enactment of a general law, modify, or annul

any rules adopted or amended pursuant to this section [and

in] the case of any variance between a rule and an

enactment of the General Assembly such variance shall be

construed so as to give effect to such enactment.”

(Emphasis added.)

Thus, we find no merit in the plaintiff’s arguments

concerning separation of powers and the province of the

judiciary. Accordingly, we reject the arguments.

B. Health Care Provider.

As noted in Part A(2) of this opinion, Code § 8.01-

581.1 defines a “[h]ealth care provider” to include:

30
 (vi) a corporation, partnership, limited liability
company or any other entity, except a state-operated
facility, which employs or engages a health care
provider and which primarily renders health care
services.

The plaintiff contends that the medical malpractice

cap does not apply to Coastal because the cap applies only

to health care providers and “[t]here simply is nothing in

the trial record evidencing that Coastal ‘primarily renders

health care services,’ an essential component of § 8.01-

581.1’s definition of ‘health care provider.’” The

plaintiff says that Coastal is nothing more than “a

specialized type of employment placement service.”

However, the evidence shows that Coastal was quite

different from an employment placement service. Coastal’s

senior vice-president testified that Coastal was created to

provide emergency physicians to staff emergency departments

of hospitals and that “[i]s . . . what it in fact does.”

Coastal’s contract with Southside Regional obligated

Coastal to provide at least five physicians to render

“professional and administrative services in [Southside’s

Emergency] Department on a full-time basis . . . 24 hours a

day, 7 days a week.” Coastal agreed that the physicians

would direct and supervise all medical services in the

emergency department, participate in educational programs,

and perform teaching functions. Coastal also agreed to

31
provide information to Southside Regional regarding

budgetary needs of the emergency department and to perform

a number of other administrative tasks.

In addition, the contract required Coastal to

designate one of its physicians, serving as its employee,

to be “the Chief/Medical Director of the Department.” This

doctor’s duties were to “provide overall medical direction

in the continuing operation” of the emergency department,

“assure that the quality, safety and appropriateness of

patient care in the Department are evaluated,” and “see

that the performance of the Physicians is in accordance

with” the contract. The contract “entitled [Coastal] to

bill patients for professional services rendered by the

Physicians.” The contract provided that Coastal’s fees

would be independent of Southside Regional’s charges and

that neither Coastal nor the physicians would receive any

compensation from Southside Regional for services rendered

pursuant to the contract.

Coastal owns no emergency room facility or equipment

and employs no support personnel such as nurses or

technicians. Instead, it enters into contracts with

physicians and pays them for their services. In Dr.

DiGiovanna’s case, the contract stipulated that his

professional services would be provided at designated

32
medical institutions and that Coastal would pay a set fee

for each hour during which he provided services pursuant to

the contract.

The plaintiff says that, as a matter of law, the trial

court erred in concluding that Coastal carried its burden

of proving it primarily renders health care services within

the meaning of the definition of “[h]ealth care provider”

in Code § 8.01-581.1(vi). We disagree with the plaintiff.

The contract between Coastal and Southside Regional clearly

provided for the rendering of health care services in

Southside Regional’s emergency room. Coastal is a

corporation created to provide emergency physicians to

staff emergency departments of hospitals for the purpose of

rendering health care services in such departments. A

corporation can act only through its officers and agents.

Greenberg v. Commonwealth, 255 Va. 594, 600, 499 S.E.2d

266, 269 (1998). It is a concession in the case that Dr.

DiGiovanna was the agent of Coastal, and it was in this

capacity that he rendered health care services to Mrs.

Pulliam in the emergency room of Southside Regional on

December 15, 1995. In our opinion, all the foregoing

established at least a prima facie case that Coastal was an

entity “which primarily renders health care services”

within the meaning of the definition of “[h]ealth care

33
provider” in Code § 8.01-581.1(vi). The trial court did

not err, therefore, in holding that Coastal had carried its

burden of proof.

C. Prejudgment Interest.

As noted previously, the jury allowed interest from

the date of Mrs. Pulliam’s death, but the trial court

disallowed the award on the ground that prejudgment

interest is subject to the medical malpractice cap. The

plaintiff says this was error.

The plaintiff points out that, under Code § 8.01-

581.15, the total amount recoverable for any injury to, or

death of, a patient shall not exceed one million dollars.

The plaintiff says that interest is not “for” such injury

or death, and, quoting Nationwide Mut. Ins. Co. v. Finley,

215 Va. 700, 214 S.E.2d 129 (1975), the plaintiff argues

that “[t]he interest the law allows on judgments is not an

element of ‘damages’ but a statutory award for delay in the

payment of money due.” Id. at 702, 214 S.E.2d at 131.

We disagree with the plaintiff. Finley involved

postjudgment interest. Id. at 701, 214 S.E.2d at 130;

Dairyland Ins. Co. v. Douthat, 248 Va. 627, 632, 449 S.E.2d

799, 801 (1994). And we said in Dairyland that there is

“an important distinction between prejudgment interest and

postjudgment interest.” Id. at 631, 449 S.E.2d at 801.

34
“Underlying this distinction,” we continued, “is the

principle that ‘[p]rejudgment interest is normally designed

to make the plaintiff whole and is part of the actual

damages sought to be recovered.’” Id. (quoting Monessen

Southwestern Ry. v. Morgan, 486 U.S. 330, 335 (1988)). “In

contrast,” we said, “postjudgment interest is not an

element of damages, but is a statutory award for delay in

the payment of money actually due.” 248 Va. at 632, 449

S.E.2d at 801.

The plaintiff attempts to distinguish Dairyland on

the basis of a concession made there by the parties sought

to be charged that “prejudgment interest is an element of

compensatory damages.” Id. at 630, 449 S.E.2d at 801. The

plaintiff says that this concession eliminated “the need

for this Court to reach that issue.”

It is true that such a concession was made in Douthat,

but this Court distinctly made the holding that

“prejudgment interest . . . is part of the actual damages

sought to be recovered,” id. at 631, 449 S.E.2d at 801, and

we cited Monessen as authority for the holding. If that

was this Court’s holding, then prejudgment interest is part

of “the total amount recoverable for any injury to, or

death of, a patient,” within the meaning of Code § 8.01-

581.15, and subject to the medical malpractice cap of one

35
million dollars. But if any question remains about the

holding, the question will be eliminated by our affirmance

of the trial court’s judgment in all respects.

D. Conclusion.

In conclusion, we note that Etheridge has been cited

in sixteen subsequent opinions of this Court without any

indication to the bench, the bar, or the public that

flagrant error or mistake exists in the decision. This

underscores the significance of what we said in Myers v.

Moore, 204 Va. 409, 131 S.E.2d 414 (1963), a case involving

the constitutionality of the Virginia Water and Sewer

Authorities Act:

The reason for the [stare decisis] principle is
that in a well ordered society it is important for
people to know what their legal rights are, not only
under constitutions and legislative enactments but
also as defined by judicial precedent, and when they
have conducted their affairs in reliance thereon they
ought not to have their rights swept away by judicial
decree when at a later date other grounds may be
conceived to attack the constitutionality of a
statute. This is especially true where property
rights are involved. Under the Authorities Act
numerous improvement districts have been created and
financed in reliance upon the pronouncement of this
Court that it is free from constitutional objections.
Thus the doctrine of stare decisis, one of the most
important principles in the structure of our law,
should here apply with all its force.

Id. at 413, 131 S.E.2d at 417.

Affirmed.

36
JUSTICE HASSELL, with whom JUSTICE KEENAN and JUSTICE
KOONTZ join, concurring.

I believe that the result reached by the majority is

compelled by the absence of a sufficient record in this

appeal.

Article IV, Section 14, of the Constitution of

Virginia provides, in part, that: "[t]he General Assembly

shall not enact any local, special, or private law . . .

[g]ranting to any private corporation, association, or

individual any special or exclusive right, privilege, or

immunity." Va. Const. art. IV, sec. 14(18). Article IV,

Section 15, Va. Const., provides, in pertinent part:

"In all cases enumerated in the preceding
section, . . . the General Assembly shall enact
general laws. Any general law shall be subject
to amendment or repeal, but the amendment or
partial repeal thereof shall not operate directly
or indirectly to enact, and shall not have the
effect of enactment of, a special, private, or
local law.

. . . .

"No private corporation, association, or
individual shall be specially exempted from the
operation of any general law, nor shall a general
law's operation be suspended for the benefit of
any private corporation, association, or
individual."

The constitutional prohibition against special laws

does not prohibit legislative classifications. King v.

Neurological Injury Compensation Program, 242 Va. 404, 409,

37
410 S.E.2d 656, 660 (1991). Rather, the prohibitions

require that such classifications be "natural and

reasonable, and appropriate to the occasion." Benderson

Dev. Co. v. Sciortino, 236 Va. 136, 140-41, 372 S.E.2d 751,

753 (1988); King, 242 Va. at 409, 410 S.E.2d at 659.

In Mandell v. Haddon, 202 Va. 979, 989, 121 S.E.2d

516, 524 (1961), we observed that:

"[W]e must determine in each case whether [a
challenged act] makes an 'arbitrary separation,'
and this depends upon the purpose and subject of
the particular act and the circumstances and
conditions surrounding its passage.
"The necessity for and the reasonableness of
the classification are primarily questions for
the legislature. If any state of facts can be
reasonably conceived that would support it, that
state of facts at the time the law was enacted
must be assumed. Martin's Ex'rs v. Commonwealth
. . . 126 Va. [603,] 612, 102 S.E. [77,] 80,
[(1920)]; Joy, Draheim & Cox v. Green . . . 194
Va. [1003,] 1009, 76 S.E.2d [178,] 182 [(1953)].
The presumption is that the classification is
reasonable and appropriate and that the act is
constitutional unless illegality appears on its
face."

I can only conclude, based upon the record before this

Court, that Code § 8.01-581.15 does not contravene

Virginia's constitutional prohibition against special

legislation. The determinative issue is whether the

statute as applied "bear[s] a reasonable and substantial

relation to the object sought to be accomplished by the

legislation." Mandell, 202 Va. at 991, 121 S.E.2d at 525.

38
The record before this Court simply does not demonstrate

that the challenged statute fails to bear a reasonable and

substantial relationship to the object sought to be

accomplished by the legislation. In other words, Karl B.

Pulliam, executor of the estate of Elnora R. Pulliam, did

not present evidence to rebut the presumption that the

legislative classification limiting damages was reasonable.

He failed to establish that the limitation of damages was

unsupported by any reasonably conceivable state of facts at

the time the statute was enacted. Thus, he did not meet

the standard that must be established before the statute

can be declared constitutionally impermissible. I agree

with the majority's resolution of the remaining issues.

JUSTICE KINSER, concurring.

I agree with the majority’s rationale and decision

that the medical malpractice recovery cap contained in Code

§ 8.01-581.15 does not violate any provision of either the

Constitution of the United States or the Constitution of

Virginia. 13 I reach this conclusion without considering the

role that stare decisis should play in this case. I write

13
I also agree with the majority’s decision that
Coastal Emergency Services of Richmond, Inc., is a “health
care provider” under Code § 8.01-581.1 and that prejudgment
interest is subject to the medical malpractice cap.

39
separately for the sole purpose of expressing my belief

that the medical malpractice cap creates an unwarranted

injustice in certain situations.

The General Assembly has the responsibility to protect

the health, welfare, and safety of the citizens of this

Commonwealth through appropriate legislation. However, the

medical malpractice cap works the greatest hardship on

those individuals who are the most severely injured by the

negligence of health care providers. Nevertheless, I

cannot be influenced by such concerns when deciding the

constitutionality of a challenged statute. I can only

express my views with the hope that the General Assembly

will adopt a more equitable method by which to ensure the

availability of health care in this Commonwealth.

40