Gibson v. Riverside Hospital, Inc.

Present: All the Justices

CRAIG GIBSON, AN INFANT, ETC., ET AL.

v. Record No. 941446 OPINION BY JUSTICE LEROY R. HASSELL
June 9, 1995
RIVERSIDE HOSPITAL, INC., ETC., ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge

In this appeal of a judgment in a medical malpractice

action, we consider whether the trial court correctly ruled that

it lacked subject matter jurisdiction. Our decision depends, in

part, upon certain provisions in the Virginia Birth-Related

Neurological Injury Compensation Act, Code §§ 38.2-5000 through -

5021, in effect at the time of the alleged malpractice.
Plaintiffs, Craig Gibson, an infant, by his mother and next

friend, Tami (Gibson) Voris, and Tami (Gibson) Voris,

individually, filed their motion for judgment against Riverside

Hospital, Inc., d/b/a Riverside Regional Medical Center, Dr.

Louis E. Nelsen, III, Dr. William H. Woessner, the estate of Dr.

Charles W. Nickerson, Sentara Hospital-Norfolk, d/b/a Sentara

Norfolk General Hospital, Dr. Matthew Whitted, and Dr. Randall S.

Kuhlmann. The plaintiffs alleged that they were injured by the

negligent acts and omissions of the defendants.

Certain defendants filed a special plea in bar, in which

they asserted that the Act conferred exclusive jurisdiction over

the plaintiffs' claims in the Workers' Compensation Commission.

The trial court, relying solely upon the allegations contained in

the motion for judgment, granted the defendants' special plea.

We awarded the plaintiffs an appeal.

For purposes of this appeal, we assume that the facts in the

plaintiffs' motion for judgment and all reasonable inferences
deducible therefrom are true. Tami (Gibson) Voris sought

treatment at the Riverside Hospital after she was injured in an

automobile accident on July 13, 1989. Tami was pregnant, and she

was concerned that her unborn child might have been injured in

the accident. She was admitted as a patient to Riverside

Hospital on that date, and she was treated by several health care

providers. According to the plaintiffs, "[d]espite indications

of fetal distress during monitoring on July 13, 1989, [Tami] was

removed from the monitor; and the hospital gave her no definitive

treatment."
On July 14, 1989, certain health care providers noted that

the unborn child was experiencing fetal distress. Tami was

subsequently transported to Sentara Hospital-Norfolk, where a

physician performed an emergency caesarean section to deliver her

infant, Craig. Craig experienced certain injuries that the

plaintiffs claim are related to the defendants' failure to

diagnose timely the fetal distress.

The plaintiffs allege in their motion for judgment:
That as direct and proximate cause of the
negligence of the defendants, jointly and severally,
the Plaintiff, Craig Gibson has spastic diplegia
cerebral palsy, delayed mile stones [sic] with
resultant developmental delay, obstructive
hydrocephalus and short stature with microcephaly. He
requires crutches to ambulate and has difficulty with
shortening of the hamstrings due to his spastic
diplegia and visual difficulties.

That the minor Plaintiff, Craig Gibson, as a
direct and proximate result of the joint and several
negligence of the defendants, has suffered and will
continue to suffer, physical and mental pain and
anguish, impairment, disability, humiliation and
embarrassment, loss of earning capacity, and he will
incur medical, rehabilitation and pharmaceutical
expenses in the future.

The plaintiffs argue that Craig did not, and does not,
suffer a birth-related neurological injury as defined by the

Virginia Birth-Related Neurological Compensation Act and,

therefore, the trial court has subject matter jurisdiction to

adjudicate their claims. The defendants contend, however, that

the trial court correctly ruled that Craig suffers from a birth-

related neurological injury and that the Workers' Compensation

Commission has exclusive jurisdiction to consider the birth-

related claims. We disagree with the defendants.
The Act was enacted by the General Assembly in 1987. As

provided by the pertinent provisions of the Act, an infant who

incurs a birth-related neurological injury, caused by the

negligence of a participating health care provider, cannot

maintain a common law tort action against the participating

health care provider other than as provided by the Act. Code

§ 38.2-5002(B); see King v. Virginia Birth-Related Neurological

Injury Compensation Program, 242 Va. 404, 406-07, 410 S.E.2d 656,

658 (1991). Rather, an infant who suffers a neurological injury

as defined by the Act must file a claim with the Workers'

Compensation Commission, which has exclusive jurisdiction to

decide all claims made pursuant to the Act. Code § 38.2-5003.

Former Code § 38.2-5001, which was effective in 1989 at the

time of Craig's birth, stated in relevant part:
"Birth-related neurological injury" means injury to the
brain or spinal cord of an infant caused by the
deprivation of oxygen or mechanical injury occurring in
the course of labor, delivery or resuscitation in the
immediate post-delivery period in a hospital which
renders the infant permanently nonambulatory, aphasic,
incontinent, and in need of assistance in all phases of
daily living. This definition shall apply to live
births only.

(Emphasis added).
 Applying the clear and unambiguous language contained in

this statute, we hold that the plaintiffs' causes of action do

not fall within the exclusive jurisdiction of the Workers'

Compensation Commission. The plaintiffs, in their motion for

judgment, simply do not allege that Craig is "aphasic, * T

incontinent, and in need of assistance in all phases of daily

living," as required by the Act. The allegations in the motion

for judgment, quoted above, contain no facts which permit an

inference to be drawn that Craig is "aphasic, incontinent, and in

need of assistance in all phases of daily living."
We also observe that the defendants, who have the burden of

proving any facts related to their special plea, failed to

present any evidence that the infant is "nonambulatory, aphasic,

incontinent, and in need of assistance in all phases of daily

living." Furthermore, we reject the defendants' suggestion that

the Workers' Compensation Commission, as opposed to the circuit

court, is better situated to determine whether an infant has

suffered a birth-related neurological injury. Without question,

it is the function of the court to determine the existence, or

lack, of subject matter jurisdiction. In this instance, in view

of the factual allegations contained in the motion for judgment,

we hold that the circuit court has subject matter jurisdiction.

Accordingly, we will reverse the judgment of the trial court

and remand this case for further proceedings.
Reversed and remanded.

*
Aphasia is defined as "the loss or impairment of the power
to use words as symbols of ideas that results from a brain
lesion." Webster's Third New International Dictionary 98 (1993).