Berner v. Mills Ex Rel. Estate of Mills

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia

TODD BERNER, M.D. AND
PRIMARY CARE FOR WOMEN, P.C.
OPINION BY
v. Record No. 1298-01-4 JUDGE NELSON T. OVERTON
MARCH 26, 2002
SCOTT AND TARA MILLS,
CO-ADMINISTRATORS OF THE ESTATE
OF NELSON MILLS, AND
TARA MILLS, INDIVIDUALLY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Susan L. Mitchell (Tara M. McCarthy;
McCarthy & Massey, P.C., on briefs), for
appellants.

Robert T. Hall (Holly Parkhurst Essing; Donna
Miller Rostant; Hall & Sickels, P.C., on
brief), for appellees.

Todd Berner, M.D. (Berner) and Primary Care for Women, P.C.

(Primary Care) appeal a decision of the Workers' Compensation

Commission ruling that it did not have jurisdiction over Primary

Care under the Virginia Birth-Related Neurological Injury

Compensation Act ("the Act"). Berner and Primary Care contend

the commission erred in (1) refusing to apply the April 1, 2000

amendments to Code §§ 8.01-273.1 and 38.2-5001 retroactively to

the present case; and (2) granting appellees a double recovery

under the Act and the Death by Wrongful Act statutes where the
only viable theory of liability against Primary Care was

respondeat superior. Finding no error, we affirm.

Background

On May 28, 1998, Tara Mills gave birth to a son, Nelson

Mills ("the decedent"). The decedent remained on life support

after his birth through June 7, 1998, at which time life support

was discontinued and he died.

On April 1, 1999, Scott and Tara Mills filed a Motion for

Judgment in the Arlington County Circuit Court ("the circuit

court") against Berner and Primary Care seeking damages for the

wrongful death of the decedent, the negligence of Berner, the

negligence of Primary Care, and negligent infliction of

emotional distress.

In a January 4, 2000 amended order, the circuit court

referred the case to the commission pursuant to Code

§ 8.01-273.1 for the purpose of determining whether the cause of

action satisfied the requirements of the Act.

On March 2, 2000, the Supreme Court issued an opinion in

Jan Paul Fruiterman, M.D. and Assocs. v. Waziri, 259 Va. 540,

525 S.E.2d 552 (2000). In Fruiterman, the Supreme Court held

that professional corporations were not included in the

definition of those persons and entities that were immunized

from tort liability by the Act for birth-related neurological

injury caused by medical malpractice. Id. at 545, 525 S.E.2d

554. Therefore, the plaintiff in Fruiterman was able to pursue
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the medical malpractice wrongful death action against the

professional corporation. Id.

On March 23, 2000, relying upon Fruiterman, Scott and Tara

Mills filed a Motion to Remand their claim against Primary Care

to the circuit court. The Millses also represented that they

moved to non-suit and withdraw all remaining claims against

Berner and waive any claim they might have had under the Act.

Berner and Primary Care opposed the motion to remand.

On April 28, 2000, the deputy commissioner issued an

opinion finding that the commission did not have jurisdiction

over Primary Care under the Act. As a result, the deputy

commissioner remanded the Millses' cause of action against

Berner to the circuit court for it to consider their March 23,

2000 motion to nonsuit as to Berner.

On April 1, 2000, the Governor of Virginia signed House

Bill 398, which amended Code §§ 8.01-273.1 and 38.2-5001. As a

result of those amendments, the definition of a "participating

physician" subject to the Act was broadened to include "a

partnership, corporation, professional corporation, professional

limited liability company or other entity through which the

participating physician practices." In 2000 Va. Acts, chapter

207, clause 1, the General Assembly noted "that the provisions

of this act amending § 38.2-5001 are declaratory of existing

law." Clause 2 stated "that an emergency exists and this act is

in force from its passage."
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 On May 16, 2000, Berner and Primary Care requested review

of the deputy commissioner's April 28, 2000 decision. On

review, the commission held as follows:

[T]he April 1, 2000, legislative amendments,
while procedural in nature, affect the
substantive rights of the parties who had
the right to file a cause of action and did
file a cause of action in tort against
Primary Care before April 1, 2000. Thus we
hold that the amendments do not apply
retroactively to the claimants' suit.

In so ruling, the commission recognized the following:

The change effectuated by the
legislature on April 1, 2000, did more than
change the forum in which the cause of
action may be heard. . . . In the case at
bar, the new legislation does not merely
change the remedy or means by which a right
is enforced; it changes the right itself.

The new legislation substitutes a
wrongful death action in tort for a no-fault
cause of action under the Act. Va. Code
§ 8.01-50 provides a cause of action for the
death of a person caused by "the wrongful
act, neglect, or default of any person or
corporation, . . . [when] the act, neglect,
or default is such as would, if death had
not ensued, have entitled the party injured
to maintain an action . . . [.]" The
purpose of the Death by Wrongful Act statute
is to compensate a decedent's statutory
beneficiaries for their loss resulting from
the decedent's death. In contrast, the Act
provides an exclusive no-fault cause of
action against participating entities under
the statute, as long as the decedent
sustained a birth-related neurological
injury as defined in Va. Code § 38.2-5001
and a participating physician provided
obstetrical services at birth or the birth
occurred in a participating hospital. The
purpose of the Act was to make medical

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 malpractice insurance coverage available to
licensed physicians.

The claimants had a substantive right
to sue Primary Care in a wrongful death
action in tort as of June 8, 1998, the date
of the decedent's death. The Virginia
Supreme Court has noted that "the rights of
the plaintiff and defendant under the
[wrongful death] statutes became fixed at
the time the cause of action accrued and
subsequent amendments do not apply
retroactively." Because the cause of action
for wrongful death and the right to enforce
it were created by statute, the statute in
existence when these causes of action arose
control the outcome of this case.

(Citations omitted.)

I.

The commission did not err in refusing to apply the April

1, 2000 amendments retroactively. In reaching this decision, we

are guided by certain well-accepted principles governing the

retroactivity of statutes. The presumption in Virginia is

against the retroactive application of statutes. Code § 1-16;

Booth v. Booth, 7 Va. App. 22, 26, 371 S.E.2d 569, 572 (1988).

"The intent of the General Assembly determines whether a statute

will be applied [retroactively], but the general rule of

statutory construction is that legislation only speaks

prospectively." Id. at 26, 371 S.E.2d at 571-72. Moreover,

"retroactive effect will be given to a statute only when

legislative intent that a statute be so applied is stated in

clear, explicit, and unequivocal terms; otherwise, a statute

will be applied prospectively only and applied only to cases
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that arise thereafter." Foster v. Smithfield Packing Co., 10

Va. App. 144, 147, 390 S.E.2d 511, 513 (1990).

These principles have been harmonized with the distinctions

between substantive provisions of laws, which cannot be applied

retroactively, and procedural or remedial statutes, which may be

applied retroactively where a retroactive legislative intent is

demonstrated.

In [Shiflet v. Eller, 228 Va. 115, 319
S.E.2d 750 (1984)], the Supreme Court stated
that substantive rights are addressed in
statutes which create duties, rights, or
obligations. In contrast, the Court
explained that procedural or remedial
statutes merely set forth the methods of
obtaining redress or enforcement of rights.

In order for [the statute] . . . to
apply retroactively, therefore, it must be
procedural in nature and affect remedy only,
disturbing no substantive or vested rights.
The statute must also contain an expression
of [retroactive] legislative intent.

Cohen v. Fairfax Hosp. Ass'n, 12 Va. App. 702, 705, 407 S.E.2d

329, 331 (1991) (citations omitted).

Here, the General Assembly did not clearly, explicitly and

unequivocally state that the April 1, 2000 amendments were to be

applied retroactively to causes of action that accrued before

April 1, 2000. Its statement that the amendments were

declaratory of existing law and that they were in force from

their passage, did not clearly, explicitly and unequivocally

provide that the amendments were to be applied retroactively to

causes of action that accrued prior to April 1, 2000. In the
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absence of such a statement, the amendments apply only to cases

that arose after their enactment.

Furthermore, retroactive application of the amendments

would impermissibly disturb substantive or vested rights. Prior

to April 1, 2000, the Millses' cause of action against Primary

Care had accrued and they had a substantive right to file suit

against Primary Care in the circuit court under the Wrongful

Death statute, and had, in fact, done so. If the amendments

were applied retroactively, that substantive and vested right

would be taken away and substituted with the right to proceed

against Primary Care under the Act. As the commission found,

the amendments are more than a mere change in forums; they

change the right itself.

Accordingly, we find that the commission did not err in

refusing to apply the April 1, 2000 amendments retroactively,

and in following Fruiterman to hold that it did not have

jurisdiction under the Act over Primary Care, a professional

corporation.

II.

On appeal, Berner and Primary Care argue that the

commission erred in granting the Millses a "double recovery"

where the only viable theory of liability against Primary Care

is respondeat superior. Berner and Primary Care did not make

this specific "double recovery" argument before the full

commission on review in its written statement or its reply to
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the Millses' written statement. Thus, this issue was not

considered by the full commission. Accordingly, we will not

consider this argument on appeal. See Green v. Warwick Plumbing

& Heating Corp., 5 Va. App. 409, 413, 364 S.E.2d 4, 6 (1988);

Rule 5A:18.

For these reasons, we affirm the commission's decision.

Affirmed.

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