Harris v. DiMattina

Present: Carrico, C.J., Compton, Stephenson, Whiting, 1 Lacy,
Hassell, and Keenan, JJ.

HEATHER HARRIS

v. Record No. 941410 OPINION BY JUSTICE BARBARA MILANO KEENAN
September 15, 1995
MICHAEL DIMATTINA, M.D.,
ETC., ET AL.

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge

ROBERT E. CUMBERLAND
v. Record No. 941923

O. RILEY BOONE, M.D., ET AL.

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
William Shore Robertson, Judge

In these appeals of judgments entered in medical malpractice

actions, we consider whether the trial courts erred in sustaining

pleas of the statute of limitations. The parties in both cases

agree that the two-year limitation of Code § 8.01-243(A) applies.

They disagree regarding the effect of the 1993 amendment to Code

§ 8.01-581.2, which eliminated the "notice of claim" requirement,

and the effect of the repeal of former Code § 8.01-581.9, which

contained certain tolling provisions.

Prior to its amendment in 1993, former Code § 8.01-581.2

provided, in part:
No action may be brought for malpractice against a

1
Justice Whiting participated in the hearing and decision of

this case prior to the effective date of his retirement on August

12, 1995.
 health care provider unless the claimant notifies the
health care provider in writing . . . prior to
commencing the action. . . . The claimant or health
care provider may within sixty days of such
notification file a written request for a review by a
medical malpractice review panel . . . . No actions
based on alleged malpractice shall be brought within
ninety days of the notification by the claimant to the
health care provider and if a panel is requested within
the period of review by the medical review panel.

Effective July 1, 1993, that section was amended to delete the

requirement that a notice of claim be filed prior to filing a

malpractice action against a health care provider. Acts 1993,

ch. 928.
Before its repeal effective July 1, 1993, Acts 1993,

ch. 928, former Code § 8.01-581.9 provided, in part:
The giving of notice of a claim pursuant to
§ 8.01-581.2 shall toll the applicable statute of
limitations for a period of 120 days from the date such
notice is given, or for 60 days following the date of
issuance of any opinion by the medical review panel,
whichever is later.

Although these appeals involve common questions of law,

their procedural histories differ substantially. Therefore, we

describe them separately.

HARRIS v. DIMATTINA

Heather Harris alleged that she suffered damages from

medical malpractice occurring on July 15, 1991. On July 13,

1993, Harris mailed a notice of claim, pursuant to former Code

§ 8.01-581.2, to Michael DiMattina, M.D., trading as Michael

DiMattina, M.D., P.C., and his employer, Dominion Fertility and

Endocrinology Institute (collectively, DiMattina). In her notice

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of claim, Harris alleged that DiMattina failed to give her proper

treatment in connection with certain surgical procedures and

postoperative care. No party requested a medical malpractice

review panel.

Harris filed her motion for judgment on October 26, 1993.

DiMattina then filed a motion to dismiss, arguing that Harris's

claim was barred by the two-year statute of limitations.

DiMattina asserted that Harris could not rely on the tolling

provisions of former Code § 8.01-581.9, because its repeal

constituted a procedural change in the law. He argued that,

under Code § 8.01-1, procedural statutory changes apply to causes

of action arising before, as well as after, the effective date of

the changes. The trial court held that DiMattina was correct and

granted the motion to dismiss. The trial court further observed:

"Plaintiff filed the notice of claim within the two (2) year

statute of limitations and after the new law was in effect. The

Motion for Judgment could have been filed on time."
CUMBERLAND v. BOONE

Robert E. Cumberland alleged that he was injured during

surgery performed on November 27, 1990, and during follow-up care

continuing through January 9, 1991. He filed a notice of claim

on December 2, 1992, alleging medical malpractice committed by O.

Riley Boone, M.D., Thomas J. Gates, M.D., Loudoun Surgical

Associates, Ltd., John H. Cook, III, M.D., Russell McDow, M.D.,

and Loudoun Hospital Center (collectively, Boone). Thereafter,

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certain defendants requested a medical malpractice review panel.

The review panel hearing was held on September 10, 1993, and the

panel rendered its opinion on that date.

On November 4, 1993, Cumberland filed a motion for judgment

against Boone, who filed a special plea asserting that

Cumberland's action was barred by the two-year statute of

limitations. Boone argued that, under Code § 8.01-1, the repeal

of former Code § 8.01-581.9 (the repeal provision) applied to

Cumberland's cause of action. He contended that, once the

tolling provisions of former Code § 8.01-581.9 were repealed,

Cumberland was required to file his motion for judgment within

the unexpired portion of the two-year limitation period. The

trial court granted the motion to dismiss for the reasons

advanced by Boone, concluding that "[w]ith the repeal of . . .

Code [§] 8.01-581.9[,] plaintiff's Motion for Judgment is barred

by the statute of limitations."

PROCEDURAL PROVISIONS
To resolve these appeals, we first must determine whether

the statutory provisions at issue are procedural or substantive

in nature. This distinction is central to our inquiry, because

Code § 1-16 and Code § 8.01-1 limit the applicability of new

statutes, depending on the category into which they fall.

In Morrison v. Bestler, 239 Va. 166, 387 S.E.2d 753 (1990),

we described the notice of claim and the tolling provisions as

procedural in nature. We stated that
[t]he Virginia General Assembly has enacted certain

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 procedures for the prosecution of [medical malpractice
claims]. These procedures include the notice of claim,
a waiting period for filing suit, the right to a
malpractice review panel prior to a court proceeding,
use of the opinion of the panel, and extensions of
statutory filing limitations under certain conditions.

. . . .

All these procedural requirements . . . were
formulated to provide the defendant with adequate
notice of the nature of the claim, to assist the
parties in case preparation, and to encourage
settlement prior to trial.

Id. at 172-73, 387 S.E.2d at 757. See also Hewitt v. Virginia
Health Servs. Corp., 239 Va. 643, 645, 391 S.E.2d 59, 60 (1990).

In accord with this explanation, we hold that former Code

§§ 8.01-581.2 and -581.9, as well as the repeal provision, are

procedural in nature, since they control only the method of

obtaining redress or enforcement of rights and do not involve the

creation of duties, rights, and obligations. See Shiflet v.

Eller, 228 Va. 115, 120, 319 S.E.2d 750, 753-54 (1984).

Because Code §§ 8.01-581.2 and -581.9 prescribed only the

procedural aspects of a remedy, they could, at the will of the

legislature, be amended or repealed, as long as reasonable

opportunity and time were provided to preserve substantive or

vested rights. Walke v. Dallas, Inc., 209 Va. 32, 36, 161 S.E.2d

722, 724 (1968); Duffy v. Hartsock, 187 Va. 406, 416, 46 S.E.2d

570, 574 (1948). Further, since these former statutes were

procedural, rather than substantive, in nature, neither plaintiff

acquired any vested right in these statutes at the time their

causes of action accrued. See Fletcher v. Tarasidis, 219 Va.

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658, 661, 250 S.E.2d 739, 740 (1979); Hurdle v. Prinz, 218 Va.

134, 139, 235 S.E.2d 354, 357 (1977); Phipps v. Sutherland, 201

Va. 448, 453, 111 S.E.2d 422, 426 (1959).

HARRIS

Harris argues that, pursuant to Code § 1-16, the repeal

provision and the 1993 amendment to Code § 8.01-581.2

(collectively, the 1993 enactments) apply only to causes of

action arising on or after July 1, 1993. She asserts that Code

§ 1-16 establishes a statutory presumption that all statutes

operate prospectively, absent a clearly expressed legislative

intent to the contrary. Since neither of the 1993 enactments

contained any language indicating that it applied to existing

causes of action, Harris contends that her claim is not subject

to either provision. We disagree.
Code § 1-16 provides, in relevant part:
No new law shall be construed to repeal a former law,
as to any offense committed against the former law, or
as to any act done, any penalty, forfeiture, or
punishment incurred, or any right accrued, or claim
arising under the former law, or in any way whatever to
affect any such offense or act so committed or done, or
any penalty, forfeiture, or punishment so incurred, or
any right accrued, or claim arising before the new law
takes effect; save only that the proceedings thereafter
had shall conform, so far as practicable, to the laws
in force at the time of such proceedings . . . .
(Emphasis added.)

We apply the above language in the context of our holding

that the statutory provisions at issue are procedural in nature.

Since Harris acquired no vested right in these procedural

statutes, their repeal or amendment did not operate to repeal or

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in any way affect any act done, any right accrued, or any claim

arising under the former law. Moreover, Harris retained her

substantive right of action against DiMattina after the 1993

enactments took effect. Thus, the first part of Code § 1-16, on

which Harris relies, is inapplicable. See Hurdle v. Prinz, 218

Va. at 139, 235 S.E.2d at 357.

Instead, since we are dealing with purely procedural

provisions, we look to the language highlighted above, which

addresses the effect that a new law has on the proceedings in a

case. This language sets forth the general rule that such

proceedings shall conform to the law in effect on the date the

proceedings are conducted. In Harris's case, the proceedings

conformed to the terms of the 1993 enactments, which were in

force at the time the trial court ruled on DiMattina's motion to

dismiss. Thus, we conclude that Code § 1-16 offers no support
2
for Harris's position, and we turn to consider her alternative

2
In reaching this conclusion, we also observe that Harris's

reliance on Ferguson v. Ferguson, 169 Va. 77, 86-88, 192 S.E. 774,
777 (1937), is misplaced. As we explained in Hurdle, Ferguson is

inapposite to the analysis of a purely procedural statute, because

the statute at issue in that case conferred both a right of action

and a remedy. 218 Va. at 138-39, 235 S.E.2d at 356-57. Unlike

the statute in Ferguson, both the provision before us and the

provision before this Court in Hurdle relate solely to procedural
aspects of a remedy.

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argument that her case falls within an exception to that general

rule.

This exception is set forth in Code § 8.01-1, which

provides, in relevant part:
[A]ll provisions of this title shall apply to causes of
action which arose prior to the effective date of any
such provisions; provided, however, that the applicable
law in effect on the day before the effective date of
the particular provisions shall apply if in the opinion
of the court any particular provision (i) may
materially change the substantive rights of a party (as
distinguished from the procedural aspects of the
remedy) or (ii) may cause the miscarriage of justice.
(Emphasis added.)

Harris argues that, pursuant to Code § 8.01-1, she was

entitled to rely on former Code §§ 8.01-581.2 and -581.9, because

the 1993 enactments materially altered her substantive rights.

Alternatively, she contends that application of the 1993

enactments to her claim caused a miscarriage of justice. In

support of this argument, she asserts that "express statements"

of this Court in Turner v. Wexler, 244 Va. 124, 418 S.E.2d 886

(1992), and Baker v. Zirkle, 226 Va. 7, 307 S.E.2d 234 (1983),

caused her to rely on the statutes which were in effect on the

date her cause of action arose. We disagree with both arguments.

Under Code § 8.01-1, in the limited circumstances set forth

in the statute, the trial court is vested with discretionary

authority to apply the law that was in effect on the day before

the statutory changes occurred. Thus, in order to determine

whether the trial court abused its discretion in failing to apply

the law that was in effect on the day before the 1993 enactments

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took effect, we consider whether either of the statutory

circumstances which trigger this exception applies. Since these

two circumstances are worded in the disjunctive, if either

circumstance applies, Harris's cause of action is not time

barred.

We first examine whether application of the 1993 enactments

materially changed any of Harris's substantive rights. As used

in Code § 8.01-1, "materially change" denotes a material

curtailment. Here, Harris could have filed a motion for judgment

instead of a notice of claim on July 13, 1993, pursuant to the

1993 amendment to Code § 8.01-581.2. Therefore, her substantive

right to seek damages for the alleged medical malpractice was not

materially curtailed. Since Harris suffered no curtailment of

rights as a result of the 1993 enactments, we hold that the first

statutory circumstance set forth in Code § 8.01-1 is inapplicable

to her claim.
We next consider whether a miscarriage of justice resulted

from the trial court's failure to apply the law in effect on

June 30, 1993. Harris argues that she relied on Turner and Baker

in following the statutes in effect on the date her cause of

action arose. Therefore, she contends that dismissal of her

action resulted in a miscarriage of justice, because she acted in

accordance with the law expressed in those cases. We disagree,

because the holdings in those cases are inapposite to the issue

before us.

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 In Turner, we held that the defendant professional

corporation was not a "health care provider," as defined by the

1986 version of former Code § 8.01-581.1 and, thus, that the

defendant was not subject to the tolling provisions of former

Code § 8.01-581.9. We were required to apply the version of

former Code § 8.01-581.1 in effect at the time the cause of

action arose because, under its definition of "health care

provider," the defendant had acquired a vested property right in

the two-year statute of limitations. This right had accrued when

the two-year limitations period expired prior to the date the

plaintiff's motion for judgment was filed and prior to the

effective date of the 1989 amendment to Code § 8.01-581.1.
In contrast, Harris did not have a vested right in the

application of former Code §§ 8.01-581.2 and -581.9, as we have

stated above. Therefore, we conclude that Turner provides no

support for Harris's argument.

Harris's reliance on Baker is based on a footnote in that

opinion which states, "Because the alleged negligence in this

case occurred prior to the effective date of the [1982] amendment

[to Code § 8.01-581.9], the new statutory language is

inapplicable and will not be the subject of further comment in

this opinion." 226 Va. at 10 n.1, 307 S.E.2d at 235 n.1. We

hold that Harris's reliance on this sentence is misplaced for two

reasons.

First, neither party in Baker argued that the 1982 amendment

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applied to that case. The trial court's judgment order was

entered in September 1981, well before the date of the

legislative enactment amending the statute. Id. at 10, 307

S.E.2d at 235. Thus, the issue whether the new provisions

applied was not before the trial court or this Court and was not

part of our holding in that case.

Second, the holding in Baker is wholly unrelated to the

present issue. We addressed only the question whether the words

"toll the applicable statute of limitations," as used in former

Code § 8.01-581.9, meant "suspend the running" of the statute of

limitations. Id. at 11, 307 S.E.2d at 235. Answering yes, we

held that, when the plaintiff's notice of claim was filed, the

running of the statute of limitations was interrupted and did not

resume until the termination of the 60-day period after issuance

of the review panel's decision. Id. at 13, 307 S.E.2d at 237.

Finally, we agree with the trial court's observation that

Harris could have filed a motion for judgment instead of a notice

of claim on July 13, 1993, a date within the original two-year

limitation period. Therefore, we hold that the trial court did

not abuse its discretion in failing to find that Harris suffered

a miscarriage of justice, and that the court did not err in

sustaining DiMattina's plea of the statute of limitations and in

dismissing Harris's action.

CUMBERLAND
We turn now to consider whether Cumberland's case falls

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within the statutory exception of Code § 8.01-1. We address

directly the issue whether he has demonstrated a miscarriage of

justice, because we conclude that it is dispositive of his

appeal.

Cumberland argues that the trial court abused its discretion

under Code § 8.01-1 in failing to apply the law that was in

effect on June 30, 1993. He emphasizes the fact that, when the

1993 enactments became effective, his claim was awaiting action

by the designated review panel. Thus, Cumberland asserts, if the

repeal provision applied to his cause of action, his right of

action was completely foreclosed by lapse of time before the

review panel rendered its opinion on September 10, 1993.
In support of his argument, Cumberland states that the

tolling provisions of former Code § 8.01-581.9 provided necessary

statutory relief from the running of the statute of limitations.

This relief was needed, he asserts, because former Code

§ 8.01-581.2 prohibited plaintiffs from filing a motion for

judgment until 90 days after they had given notice of claim, and

after the review panel process, if any, had been completed.

Since he was subjected to these delays imposed by statute when he

filed his notice of claim and refrained from filing suit,

Cumberland argues that a miscarriage of justice will result if he

is denied the benefit of the tolling provisions.

In response, Boone asserts that Cumberland cannot claim that

application of the repeal provision left him no opportunity to

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preserve his rights by filing suit. Boone argues that Cumberland

could have filed his motion for judgment beginning July 1, 1993,

within the unexpired time remaining on the statute of

limitations, and that application of the repeal provision does

not result in a miscarriage of justice. Citing Starnes v.

Cayouette, 244 Va. 202, 211-12, 419 S.E.2d 669, 674-75 (1992),

Boone contends that he, rather than Cumberland, would suffer a

miscarriage of justice if Boone is denied his right to rely on

the repeal provision and its effect on the running of the statute

of limitations. We disagree with the conclusion urged by Boone.
At the time Cumberland gave his notice of claim, former Code

§ 8.01-581.2 prohibited him from filing a motion for judgment

until after the applicable statutory time period had expired. As

we explained in Baker v. Zirkle, the potential adverse effects of

this requirement on a plaintiff's right to bring suit were

remedied by the tolling provisions of former Code § 8.01-581.9.

226 Va. at 13, 307 S.E.2d at 236-37. Thus, prior to July 1,

1993, no plaintiff who was subject to the requirements of former

Code § 8.01-581.2 was denied the tolling benefits of former Code

§ 8.01-581.9.

We believe that application of the repeal provision to

Cumberland's case would disrupt this carefully balanced statutory

scheme and subject Cumberland to the disadvantage of the former

notice of claim requirement, while denying him the intended

compensatory benefit of the former tolling provisions. We

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conclude that such a result would constitute a miscarriage of

justice.

As we stated in Baker, former Code § 8.01-581.9 was enacted

by the General Assembly "[i]n an obvious effort to compensate for

[the] restrictions upon a claimant's usual free access to the

courts and to provide relief from an otherwise harsh application

of the statute of limitations." 226 Va. at 13, 307 S.E.2d at

236-37; see also Wertz v. Grubbs, 245 Va. 67, 71-72, 425 S.E.2d

500, 502 (1993). Our decision here employs that compensatory

statute to prevent the imbalance in remedy that would otherwise

result from application of the repeal provision.
Although the General Assembly could have enacted a saving

clause in its repeal of the tolling provisions, we do not believe

that its failure to do so requires a different result. Code

§ 8.01-1 imposes a duty on the trial court to prevent a manifest

injustice in the application of a new provision of law.

This duty is not dependent on the presence of a saving

clause in the new provision of law; in fact, the need to exercise

this statutory duty is most plainly manifest in a case such as

this, when no saving clause was enacted to preserve the original

statutory balance. Therefore, we hold that a plaintiff who has

given a notice of claim prior to July 1, 1993, pursuant to former

Code § 8.01-581.2, is entitled to the compensatory benefit of the

tolling provisions of former Code § 8.01-581.9.

We also disagree with Boone's contention that Starnes v.

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Cayouette is contrary to our holding here. In Starnes, we held

that the defendant had an enforceable right to rely on a statute

of limitations which had expired before passage of legislation

redefining the accrual date of a cause of action for sexual

misconduct. 244 Va. at 204-05, 212, 419 S.E.2d at 670, 675.

Unlike the defendant in Starnes, Boone did not acquire any such

property right prior to the effective date of the repeal

provision. Thus, application of former Code § 8.01-581.9 does

not divest Boone of any property right already accrued before

July 1, 1993.
For these reasons, we will affirm the trial court's judgment

in favor of DiMattina, and we will reverse the trial court's

judgment in favor of Boone and remand that case for further

proceedings consistent with this opinion.
Record No. 941410 -- Affirmed.
Record No. 941923 -- Reversed and remanded.

JUSTICE LACY, dissenting in part.

I agree with the majority's decision that the statutory

provisions at issue are procedural in nature. I also agree with

the majority's conclusion that applying the statutory changes

that became effective July 1, 1993 to Harris' claim will not

result in a miscarriage of justice. I respectfully dissent,

however, from the conclusion reached by the majority in the

Cumberland case. In my opinion, application of the statutory

changes to Cumberland does not impose a manifest injustice on

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him. Furthermore, the respective circumstances of Harris and

Cumberland as of July 1, 1993, do not support the differing

dispositions the majority imposes.

Although Cumberland was precluded from filing a motion for

judgment during the effective dates of the repealed provisions,

that restriction was lifted on July 1, 1993. No longer was

Cumberland required to wait until the medical malpractice review

panel issued its decision before he could file his motion for

judgment. After July 1, 1993, the only remaining restriction was

that Cumberland file his motion for judgment within the two-year

period allowed by the statute of limitations. The repealed

statute had suspended the running of the limitation period.

Baker v. Zirkle, 226 Va. 7, 13, 307 S.E.2d 234, 237 (1983); Dye

v. Staley, 226 Va. 15, 18, 307 S.E.2d 237, 238-39 (1983).

Therefore, the period available to Cumberland in which to file a

motion for judgment was that which remained on his limitation

period on the date he filed his notice of claim. Thus,

Cumberland had 38 days from July 1, 1993 to file a motion for

judgment against Dr. Cook and three days to file against Dr.

Boone, Dr. Gates, and Loudoun Surgical Associates, Ltd. Although

Cumberland could have filed his motion for judgment within the

appropriate limitation period, he did not.

The failure of a litigant to institute his lawsuit prior to

the expiration of the statute of limitations cannot be considered

a miscarriage of justice. Nor is it a miscarriage of justice for

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a litigant to be required to comply with a limitation period that

has been shortened or altered by the legislature, when, as here,

no substantive rights are affected. The Constitution of Virginia

postpones the effective date of all newly enacted legislation for

several months. Va. Const. art. IV, § 13. See also Code § 1-12.

"The manifest purpose of the constitutional provision . . . is

to allow litigants a fair opportunity to acquaint themselves with

the provisions of the statute enacted at a given session in order

to institute and prosecute the appropriate proceeding for the

preservation of their rights in accordance therewith." Duffy v.

Hartsock, 187 Va. 406, 419, 46 S.E.2d 570, 576 (1948). See also

Board of Supervisors v. Brockman, 224 Va. 391, 396, 297 S.E.2d

805, 808 (1982). Thus, Cumberland had several months prior to

the revival of his limitation period to prepare the appropriate

motions for judgment against the defendants. This notice period,

when combined with the days remaining on Cumberland's limitation

period, provided Cumberland with a reasonable time in which to

preserve his rights by filing motions for judgment against the

defendants. See Phipps v. Sutherland, 201 Va. 448, 454, 111

S.E.2d 422, 426-27 (1959). His failure to act does not qualify

as a miscarriage of justice.

Furthermore, not only was Cumberland able to pursue his

claim in a timely manner once the "disadvantages of the former

notice of claim requirement" were removed, he was not deprived of

the "intended compensatory benefit of the former tolling

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provisions" as the majority concludes. Cumberland did receive

the benefit of the tolling provisions from December 2, 1992, the

date of his notice of claim, until July 1, 1993. Therefore, I

cannot agree with the majority's assertion that Cumberland would

be subjected to manifest injustice if required to comply with the

current procedural provisions.

Finally, I do not think the circumstances of Harris and

Cumberland are sufficiently distinguishable to justify the

disparate treatment the majority has imposed upon them. The sole

factual difference between the claimants is that Harris did not

file a notice of claim before July 1, 1993. Nevertheless, prior

to July 1, 1993, both Harris and Cumberland were denied direct

access to the courts to pursue their tort claims; they were both

subject "to the disadvantage of the former notice of claim

requirement." As of July 1, 1993, however, both were relieved of

this disadvantage and were free to file a motion for judgment.

Harris had 12 days to file before the statute of limitation for

her claim expired. Cumberland had 38 days left to file against

Dr. Cook and 3 days left to file against the remaining

defendants. Accordingly, both Harris and Cumberland could have

filed timely motions for judgment after July 1, 1993. Neither

did and, therefore, both claims should be barred.

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