Fairfax Hospital System, Inc. v. Nevitt

JUSTICE WHITING,

with whom JUSTICE HASSELL and JUSTICE KEENAN join, dissenting.

I agree with the majority’s disposition of the hospital’s plea of release, but disagree with its application of the amount paid in settlement against the amount of the medical malpractice cap (the cap) instead of the amount of the verdict. I believe the majority’s construction of the pertinent language of the two statutes is (1) illogical and inconsistent, and (2) contrary to the clearly expressed legislative purposes of each statute and the constitutional justification for the medical malpractice statute.

In dealing with the interplay between the cap in the medical malpractice statute and the settlement statute, the statutes must *600be applied in a manner consistent with their language and purposes. Here, the majority has applied the settlement credit statute, obviously intended to prevent a plaintiff from recovering more than the actual damages, to reduce a legislative cap, the amount of which is fixed without regard to those damages. And, in doing so, I think the majority uses the cap in a manner foreign to its purpose and consequent constitutional justification of fostering affordable medical malpractice insurance. Etheridge v. Medical Center Hosps., 237 Va. 87, 93-94, 376 S.E.2d 525, 527-28 (1989).

In Etheridge, we said that this social purpose provided a rational and, therefore, constitutional basis for the cap. Id. at 100, 376 S.E.2d at 531. We further noted that “Code § 8.01-581.15 has no effect upon [a plaintiffs] right to have a jury or court render an individual decision based on the merits of the case.” Id. at 99, 376 S.E.2d at 531.

In an apparent attempt to avoid this constitutional problem, the majority states that “the mandate of Code § 8.01-581.15 is that ... ‘in any judgment entered against a health care provider’ the quantum of the recovery cannot exceed the aggregate amount capable of recovery.” (Emphasis added.) Yet, the effect of the majority opinion is to put the cap on the verdict as well as the judgment, since it effectively reduces the verdict to $1 million before applying the settlement credit.

In support of its conclusion, the majority cites two cases in which the defendants (including the settling defendant, Boyd v. Bulala, 877 F.2d 1191, 1193 n.l (4th Cir. 1989)) were all health care providers. Bulala v. Boyd, 239 Va. 218, 228, 389 S.E.2d 670, 675 (1990); Fairfax Hospital Sys. v. McCarty, 244 Va. 28, 419 S.E.2d 621 (1992). However, every defendant in those cases was entitled to the benefit of the cap, and no one plaintiff could have recovered more than $1 million in the aggregate against all the defendants in either case. Etheridge, 237 Va. at 105, 376 S.E.2d at 535 (single medical malpractice cap applied to defendants, all health care providers).

The issue here involves the amount received in settlement from a defendant which was not a health care provider.1 And, in this *601case, the jury’s “individual decision on the merits of the [plaintiffs] case [for damages]” was that she was entitled to recover $2 million. The majority regards the fact that PCA was not a health care provider as “wholly immaterial” since “[t]he settlement credit mandate of Code § 8.01-35.1 does not require that a person who has been released be a health care provider.” Even if this were a proper construction and application of that statute in this case, I think that this application of the cap before applying the credit effectively deprived the plaintiff of her Etheridge-articulated constitutional right to have a jury make an individual decision based upon one of the most important elements of the case—the quantum of damages. Accordingly, I consider this ruling an unconstitutional construction and application of the statute.

And since I believe the majority effectively bases its reasoning upon the premise that no verdict could have been returned against a health care provider in excess of the cap or “total amount recoverable,” it decides an issue the hospital did not raise in the trial court. Accordingly, I do not think that we should consider it on appeal.* 2 Rule 5:25. The fact is that a $2 million verdict was returned against the hospital. Hence, the issue framed in the trial court and this Court is how the settlement amount should be credited against that verdict. Thus, under the facts and issues presented in this case, I think the trial court correctly applied the $600,000 settlement against the $2 million verdict and properly reduced the resulting amount to the $1 million cap.

Further, even if the issue had been properly raised, I would not apply the cap as the starting point for the calculation, as the majority has done. In my view, an application of the language of the medical malpractice statute to reduce a verdict against a health care provider to $1 million before applying the settlement credit “is simply illogical and is not within the contemplation of the . . . statutory provisions dealing” with the cap and the settlement *602credit provisions. DKM Richmond Associates v. City of Richmond, 249 Va. 401, 408, 457 S.E.2d 76, 80 (1995) (this day decided) (rejecting taxpayer’s contention regarding statute).

I agree with the majority’s statement of the applicable standard of statutory construction in this case. However, I disagree with its conclusion that a literal construction of the two statutes requires the majority’s result. Even if the majority’s literal construction required this result, I respectfully suggest that, in the language of the standard quoted by the majority, such “a literal construction would involve . . . manifest absurdities].” Some of them are:

1. If the plaintiff had not settled with PCA, under the majority’s rationale she could have collected the $2 million verdict since PCA would have been liable for that amount. As a practical matter, the plaintiff probably would have collected $1 million from each of the joint tortfeasors with the hospital receiving no credit for the $1 million payment by PCA. Since the plaintiff settled with PCA, the majority penalizes the plaintiff by giving the hospital full credit for PCA’s payment.

Obviously, future plaintiffs in similar situations will not settle their cases and be subjected to such a penalty. I think the majority’s decision (a) is contrary to the settled principle of law “favor [ing] compromise and settlement of disputed claims,” Snyder-Falkinham v. Stockburger, 249 Va. 376, 381, 457 S.E.2d 36, 39 (1995) (this day decided), and (b) defeats one of the primary purposes of the settlement statute—that of encouraging settlements and a fair distribution of the burden of the damages among the joint tortfeasors. And, contrary to the majority, I think that the reduction of the recovery to an amount below the cap is a judicial, not a legislative, promulgation of a public policy.

2. As noted earlier, the majority misconstrues and misapplies these two statutes in a manner contrary to their primary purposes by deducting a settlement amount geared to the plaintiff’s individual damage claim from an arbitrary cap on recoveries against health care providers (a social purpose having nothing to do with the plaintiffs individual claim for damages).

3. The majority does not explain how and why these statutes, read together, require the cap to be applied before crediting the settlement. Instead, the majority simply applies the settlement credit statute, Code § 8.01-35.1, to the amount of the verdict because it says that this statute requires only that the settling and *603nonsettling parties be joint tortfeasors, with no requirement that the settling party be a health care provider.

In my opinion, these statutes, read together, create ambiguities and inconsistencies requiring us to consider the legislative purpose in enacting each statute. See USAA Cas. Ins. v. Alexander, 248 Va. 185, 194, 445 S.E.2d 145, 150 (1994). Since the majority ignored those purposes in construing these statutes, it has applied the settlement credit statute in a manner incompatible with the purposes of both statutes.

In sum, I do not think that the language of Code § 8.01-581.15 compels a jury or court to impose the cap before considering the amount of damages to which the plaintiff would otherwise be entitled. Rather, I believe this code section can be read to put “a cap” on the “total amount recoverable” so that the quantum of the recovery against health care providers in the final judgment will not exceed the cap. I think the use of the words “total amount recoverable" (emphasis added) manifests a legislative intent to apply the medical malpractice cap after a calculation of all appropriate adjustments to whatever amount a jury or a court concludes should be awarded to the plaintiff-patient, based upon the merits of her damage claim. In my opinion, this application of the language is consistent with the medical malpractice statute’s clearly expressed purpose and underlying constitutional justification of fostering medical malpractice insurance at affordable rates. See Bulala, 239 Va. at 227-28, 389 S.E.2d at 674-75 (clear expression of statutory purpose); Etheridge, 237 Va. at 99-100, 376 S.E.2d at 531 (constitutional justification).

Here, in applying the language of each statute in harmony with the purposes of both statutes, I would avoid the majority’s illogical and inconsistent construction by concluding that those purposes are fully served by (1) crediting the liability the hospital would have had were it not a health care provider with the amount of the settlement, thereby reducing the verdict to $1,400,000, (2) further reducing that amount to the cap, the “total amount recoverable” in a medical malpractice action, and (3) entering judgment for that amount.

Accordingly, I would affirm the judgment across the board.

I do not agree with the hospital’s contention that PCA should be treated as a health care provider because its “settlement was, in fact, clearly for the benefit of [Dr. Mardini], who, as part of the settlement that had been agreed to, was . . . dismissed with prejudice along with PCA.” The hospital recognized in the trial court that the record might not have provided sufficient support for this contention. Hence, in a memorandum filed with the trial *601court in support of its motion to reconsider, the hospital asked for “the opportunity to present evidence to establish further the rather logical and reasonable proposition” that the dismissal of Dr. Mardini with prejudice was the “quid pro quo” for PCA’s payment and release. However, the record fails to indicate that the hospital pursued this request. I would conclude that the record is insufficient to show, as a matter of law, that PCA’s settlement was on Dr. Mardini’s behalf.

On appeal, as an additional ground for the initial reduction of the verdict to $1 million, the hospital also argues that this was the amount of the plaintiffs ad damnum claim against it in the pleadings. I would not consider this argument since it was not made in the trial court. Rule 5:25.