dissenting.
I think the hospital is estopped from challenging the constitutionality of Code § 8.01-35.1. As the majority opinion points out, one who claims and accepts the benefits conferred by a statute “will not be heard to question its constitutionality in order to avoid its burdens.” Bisping and Exum v. Commonwealth, 218 Va. 753, 755, 240 S.E.2d 656, 657, cert. denied, 435 U.S. 1007 (1978); Spindel v. Jamison, 199 Va. 954,- 960, 103 S.E.2d 205, 210 (1958). That is precisely the situation in which the hospital placed itself.
The majority opinion states that after the trial court had rejected the hospital’s claim of unconstitutionality, the hospital did not invoke the benefits of the statute, so as to become estopped, because “the credit provision of the statute automatically came into play.” I do not so interpret the record.
The hospital filed a post-trial motion, supported by a memorandum of law, moving the court (1) to reduce the $1,200,000.00 verdict to $750,000.00 pursuant to the statutory “cap” on malpractice awards provided by Code § 8.01-581.15, and (2) further to reduce the remaining $750,000.00 by $475,000.00 “pursuant to Va. Code § 8.01-35.1 (1983 Cum. Supp.).” In oral argument on the motion, counsel for the hospital said:
*362Your Honor, you have a verdict of a million, two, which should be reduced to $750,000, because that’s what the statute says is recoverable. And [8.01-] 35.1 says that you should, from that amount that is to be recovered under [8.01-1] 581.15, deduct $475,000, and leave the amount to be recovered $275,000, which means that the full effect of the statute is given ....
The court refused to apply the statutory “cap,” but did apply Code § 8.01-35.1, the very statute the hospital attacks as unconstitutional, by granting the hospital’s motion to the extent of crediting the $1,200,000 verdict with the $475,000 settlement the plaintiff had made with the physicians.
The hospital, therefore, specifically asked for and received the benefits conferred upon it by Code § 8.01-35.1 and, in my view, is estopped from any challenge to its constitutionality.