Present: Carrico, C.J., Compton, Stephenson, 1 Lacy,
Hassell, Keenan and Koontz, JJ.
VALERIE F. NUNNALLY
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 961718 September 12, 1997
DR. AVIS ADRIENA ARTIS, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
I.
In this appeal, we consider whether to overrule our
decision in Scarpa v. Melzig, 237 Va. 509, 379 S.E.2d 307
(1989), holding that in an action for wrongful conception,
the statute of limitations begins to run when the health
care provider negligently performs the ineffective
sterilization procedure.
II.
A.
On October 18, 1995, Valerie R. Nunnally filed her
motion for judgment against Danville Memorial Hospital and
Dr. Avis A. Artis, and alleged the following. Nunnally
decided to have a sterilization because any subsequent
pregnancies would have been detrimental to her health. Dr.
Artis, the Hospital's purported agent, negligently performed
a tubal ligation upon her on February 6, 1989. Nunnally
became pregnant on November 1, 1993, and she gave birth to a
healthy child. She "experienced a foreseeable traumatic
1
Justice Stephenson participated in the hearing and
decision of this case prior to the effective date of his
retirement on July 1, 1997.
delivery with consequent adhesions and other related medical
problems."
The defendants filed special pleas in bar, asserting
that Nunnally's action is barred by the applicable statute
of limitations. The trial court entered a judgment
sustaining the defendants' pleas, and we awarded Nunnally an
appeal.
B.
Code § 8.01-243(A) provides, in pertinent part, that
"every action for personal injuries, whatever the theory of
recovery . . . shall be brought within two years after the
cause of action accrues." Code § 8.01-230 provides, in
relevant part, that "[i]n every action for which a
limitation period is prescribed, the cause of action shall
be deemed to accrue and the prescribed limitation period
shall begin to run from the date the injury is sustained in
the case of injury to the person . . . ."
Nunnally argues that the trial court erred in granting
the defendants' special pleas of the statute of limitations.
Nunnally contends that she pled a cause of action for
wrongful conception, that her cause of action did not accrue
until she was injured, that her injury occurred at
conception and, hence, that the statute of limitations did
not begin to run until November 1, 1993, the date she
conceived her child. Thus, Nunnally urges us to overrule
our decision in Scarpa v. Melzig, supra. The defendants
respond that Nunnally's cause of action accrued on February
6, 1989, the date the sterilization procedure was performed
and, thus, her action is barred by the two-year statute of
limitations.
In Scarpa v. Melzig, we considered whether the trial
court erred in ruling that a plaintiff's medical malpractice
action was barred by the two-year statute of limitations.
JoAnn C. Scarpa filed an action against her physicians, Eric
P. Melzig and Wanda L. Radford. In June 1975, Scarpa was
hospitalized under the care of Melzig for treatment of a
pelvic infection. Melzig removed certain tissue and body
structures from Scarpa's body during an operation. Melzig
erroneously recorded in a written operative report that he
had removed Scarpa's left fallopian tube when, in fact, the
left fallopian tube was not among the structures removed.
Melzig signed a hospital discharge summary which also
erroneously indicated that Scarpa's left fallopian tube had
been removed.
In August 1980, Scarpa was hospitalized under the care
of Dr. Radford because Scarpa desired a permanent
sterilization. Radford performed the procedure and noted
that Scarpa's left fallopian tube was not present when, in
fact, the left fallopian tube was present. Thus, Dr.
Radford did not ligate, cut upon, or alter Scarpa's left
fallopian tube.
Scarpa conceived and became pregnant in March 1984, and
a child was born. During an assessment of her reproductive
system, the presence of her left fallopian tube was
confirmed.
Scarpa filed a notice of medical malpractice on
November 12, 1985 and filed her motion for judgment on July
11, 1986. In her motion for judgment, she alleged that Dr.
Melzig negligently failed to describe accurately the
surgical procedures he performed on her, thereby preventing
subsequent health care providers from being fully apprised
of the status of her reproductive system. Scarpa also
alleged that Dr. Radford was negligent in either failing to
visualize adequately Scarpa's left fallopian tube or in
failing to ligate or attempt to ligate that tube. The trial
court held that Scarpa's cause of action was barred because
the statute of limitations began to run on August 5, 1980,
the date that Radford negligently performed the
sterilization procedure.
On appeal, Scarpa contended that her action was not
barred by the statute of limitations because her "only hurt"
occurred when she conceived through her left fallopian tube
and became pregnant in March 1984. Rejecting Scarpa's
contention, we pointed out that the applicable statute of
limitations required that every action for personal injuries
shall be brought within two years after the cause of action
accrued, Code § 8.01-243(A), and that Scarpa's cause of
action accrued from the date she sustained an injury to the
person and not when the resulting damage was discovered,
Code § 8.01-230. We held that Scarpa's cause of action
began to run at the time that the negligent 1980
sterilization procedure was performed because, during that
procedure she "endured trauma, pain, and inconvenience [and]
due to defendants' alleged wrongful conduct, she was
subjected to a wholly inadequate procedure and denied the
adequate and complete sterilization which she requested."
Scarpa, 237 Va. at 513, 379 S.E.2d at 310.
Justice Lacy, with whom Chief Justice Carrico joined,
dissented. Justice Lacy was of opinion that although a
legal wrong may have occurred in 1980 when Dr. Radford
performed the negligent sterilization procedure upon Scarpa,
no injury occurred because Mrs. Scarpa had suffered no
"positive, physical or mental hurt" until she became
pregnant. Id. at 515, 379 S.E.2d at 311.
C.
In Miller v. Johnson, 231 Va. 177, 343 S.E.2d 301
(1986), we held "that an action for wrongful pregnancy or
wrongful conception may be maintained in Virginia." Id. at
183, 343 S.E.2d at 305. Explaining our holding, we stated:
"Individuals are . . . free to practice
contraception to further their constitutionally-
protected choice not to have children. See
Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972);
Griswold v. Connecticut, 381 U.S. 479, 485-86
(1965).
Under traditional tort principles, it is
clear that a physician who performs . . . [a]
sterilization procedure owes a legal duty to the
patient. Where the patient can establish failure
to perform the procedure with reasonable care and
damages proximately resulting from breach of duty,
she is entitled to recover as in any other medical
malpractice action."
Id. at 182-83, 343 S.E.2d at 304.
Nunnally's motion for judgment alleges a cause of
action for wrongful conception. The gist of an action for
wrongful conception is that a health care provider
negligently performed a sterilization procedure and, as a
proximate result of that negligence, the patient conceives a
child.
In Locke v. Johns-Manville Corp., 221 Va. 951, 275
S.E.2d 900 (1981), we stated:
"We construe the statutory word [found in Code
§ 8.01-230] 'injury' to mean positive, physical or
mental hurt to the claimant, not legal wrong to
him in the broad sense that his legally protected
interests have been invaded. Thus, the running of
the time is tied to the fact of harm to the
plaintiff, without which no cause of action would
come into existence; it is not keyed to the date
of the wrongful act, another ingredient of a
personal injury cause of action."
221 Va. at 957-58, 275 S.E.2d at 904. Here, the injury of
which Nunnally complains is not "trauma, pain, and
inconvenience" that may have been associated with the
negligent sterilization procedure. Rather, she complains of
the consequences of the wrongful conception and the
subsequent pregnancy which, for medical reasons, she sought
to avoid. Indeed, we fail to understand how a plaintiff
could have a cause of action for wrongful conception if
there has been no conception.
Even though a legal wrong may have occurred in 1989
when the defendants performed the negligent sterilization
procedure on Nunnally, we hold that no injury under the
Locke accrual rule occurred at that time because Nunnally
had suffered no "positive, physical or mental hurt" related
to her alleged cause of action, wrongful conception. Thus,
we are of opinion that Scarpa was wrongly decided and,
therefore, it is expressly overruled.
D.
Our decision to overrule Scarpa is made with great
reluctance. We recognize the importance of the doctrine of
stare decisis in our jurisprudence. Indeed, we have stated:
"In Virginia, the doctrine of stare decisis
is more than a mere cliche. That doctrine plays a
significant role in the orderly administration of
justice by assuring consistent, predictable, and
balanced application of legal principles. And
when a court of last resort has established a
precedent, after full deliberation upon the issue
by the court, the precedent will not be treated
lightly or ignored, in the absence of flagrant
error or mistake. Kelly v. Trehy, 133 Va. 160,
169, 112 S.E. 757, 760 (1922)."
Selected Risks Insurance Co. v. Dean, 233 Va. 260, 265, 355
S.E.2d 579, 581 (1987).
Our strong adherence to the doctrine of stare decisis
does not, however, compel us to perpetuate what we believe
to be an incorrect application of the law; neither will we
be compelled by the doctrine of stare decisis to ignore our
duty to develop the orderly evolution of the common law of
this Commonwealth. Indeed, this Court's obligation to
reexamine critically its precedent will enhance confidence
in the judiciary and strengthen the importance of stare
decisis in our jurisprudence. Although we have only done so
on rare occasions, we have not hesitated to reexamine our
precedent in proper cases and overrule such precedent when
warranted. See, Jones v. Commonwealth, 227 Va. 425, 430,
317 S.E.2d 482, 485 (1984) (overruling Noell v.
Commonwealth, 135 Va. 600, 115 S.E. 679 (1923)); Lentz v.
Morris, 236 Va. 78, 81, 372 S.E.2d 608, 609 (1988)
(overruling Short v. Griffitts, 220 Va. 53, 255 S.E.2d 479
(1979) and Crabbe v. School Board, 209 Va. 356, 164 S.E.2d
639 (1968)); Bailes v. Sours, 231 Va. 96, 100, 340 S.E.2d
824, 827 (1986) (overruling in part Williams v. Williams,
192 Va. 787, 792, 66 S.E.2d 500, 503 (1951) and Surber v.
Bridges, 159 Va. 329, 335, 165 S.E. 508, 510 (1932));
Lichtman v. Knouf, 248 Va. 138, 139, 445 S.E.2d 114, 115
(1994) (overruling in part Haddon v. Metropolitan Life Ins.
Co., 239 Va. 397, 399, 389 S.E.2d 712, 714 (1990));
Middlekauff v. Allstate Insurance Co., 247 Va. 150, 154, 439
S.E.2d 394, 397 (1994) (overruling in part Haddon v.
Metropolitan Life Ins. Co., 239 Va. 397, 399, 389 S.E.2d
712, 714 (1990)).
E.
We find no merit in defendants' argument that our
holding today constitutes a "discovery rule." We adhere to
the holding, expressed in Virginia Military Institute v.
King, 217 Va. 751, 760, 232 S.E.2d 895, 900 (1977), that
adoption of a discovery rule, which causes the running of
the statute of limitations only when an injury is discovered
or should have been discovered in the exercise of reasonable
diligence, must be accomplished by the General Assembly. As
we observed in Locke, "in all of our prior decisions that
reject the discovery rule, the injury or damage existed at
the time of the wrongful act; it had merely not been
discovered in a timely manner." 221 Va. at 959, 275 S.E.2d
906. Here, however, Nunnally's injury, the wrongful
conception, did not exist at the time of the defendants'
alleged wrongful act -- the negligent sterilization
procedure. To hold otherwise would result in the inequity
of barring a plaintiff's claim for wrongful conception
before she conceived. Hence, we are of opinion that our
decision today is entirely consistent with our holding in
Locke and the cases discussed therein.
F.
Defendants, relying upon Starnes v. Cayouette, 244 Va.
202, 419 S.E.2d 669 (1992), argue that the statute of
limitations for Ms. Nunnally's claim expired in 1991 in
accordance with the law existing at that time and,
therefore, cannot be revived now. Defendants' reliance is
misplaced.
In Starnes, we awarded a plaintiff, an adult survivor
of childhood sexual abuse, an appeal to consider whether, as
the trial court ruled, the expiration of the statute of
limitations on her personal injury cause of action afforded
the defendant a property right protected by constitutional
due process guarantees. Marjorie Starnes, who was born in
1964, alleged in her motion for judgment that she was
subjected to multiple acts of sexual abuse by the defendant,
Robert L. Cayouette, from the age of 5 until she became 14
years old. The last such act of abuse occurred in 1978.
Starnes became 18 years of age in 1982 and 20 years of
age in 1984. She filed her action against Cayouette in July
1991. He filed a plea invoking Code § 8.01-243, which
imposed a time limitation of two years on personal injury
actions. In response, she argued that her action was timely
filed under Acts 1991, c. 674, 2 which essentially revived a
victim's cause of action for certain torts related to sexual
abuse even though the statute of limitations had expired.
In Starnes, we observed that the two-year statute of
2
Clauses one and two of that Act provided:
"In actions for injury to the person,
whatever the theory of recovery, resulting from
sexual abuse occurring during the infancy or
incompetency of the person, [the cause of action
shall be deemed to accrue] when the fact of the
injury and its causal connection to the sexual
abuse is first communicated to the person by a
licensed physician, psychologist, or clinical
psychologist. However, no such action may be
brought more than ten years after the later of (i)
the last act by the same perpetrator which was
part of a common scheme or plan of abuse or (ii)
removal of the disability of infancy or
incompetency.
As used in this subdivision, 'sexual abuse'
means sexual abuse as defined in subdivision 6 of
§ 18.2-67.10 and acts constituting rape, sodomy,
inanimate object sexual penetration or sexual
battery as defined in Article 7 (§ 18.2-61 et
seq.) of Chapter 4 of Title 18.2.
[T]he provisions of subdivision 6 of § 8.01-
249 shall apply to all actions filed on or after
July 1, 1991, without regard to when the act upon
which the claim is based occurred provided that no
such claim which accrued prior to July 1, 1991,
shall be barred by application of those provisions
if it is filed within one year of the effective
date of this act."
limitations in Code § 8.01-243 was tolled until the
plaintiff attained her majority in 1982. We held that the
statute of limitations expired on her claims in 1984, and
her action was barred because she did not file suit until
July 1991. Additionally, we held that the defendant had a
vested right to a defense of the statute of limitations once
the statute of limitations had run and that the General
Assembly could not, consistent with the due process
guarantees of the Constitution of Virginia, art. I, § 11,
divest the defendant of that property right. Starnes, 244
Va. at 207, 419 S.E.2d at 672.
Here, however, the defendants, Artis and Danville
Memorial Hospital, do not have vested property rights in the
statute of limitations because, as we have already
demonstrated, Nunnally's cause of action did not accrue
until her child was conceived. Unlike the plaintiff in
Starnes, the statute of limitations governing Nunnally's
action had not expired. Thus, the defendants, Artis and
Danville Memorial Hospital, acquired no vested property
rights in an expired statute of limitations. Additionally,
unlike the facts in Starnes, neither the General Assembly
nor this Court has revived a plaintiff's action that had
expired.
III.
In view of the foregoing, we will reverse the judgment
of the trial court and remand this case for further
proceedings consistent with this opinion.
Reversed and remanded.
JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO and JUSTICE
STEPHENSON join, dissenting.
The statement this Court made 75 years ago regarding
Virginia's adherence to the doctrine of stare decisis is
apropos in the present situation. "[T]he construction of
statutes ought not to vary with every change in the
personnel of the appellate court." Kelly v. Trehy, 133 Va.
160, 169, 112 S.E. 757, 760 (1922).
It is obvious that this Court, as presently
constituted, would not, as an original proposition, have
construed the applicable statute of limitations as it was
construed in Scarpa v. Melzig, 237 Va. 509, 379 S.E.2d 307
(1989). Nevertheless, the 1989 construction was dictated by
controlling precedent, was reached "after full deliberation
upon the issue," was made by a clear majority of the Court,
and was not the product "of flagrant error or mistake."
Selected Risks Ins. Co. v. Dean, 233 Va. 260, 265, 355
S.E.2d 579, 581 (1987). The 1989 construction should be
followed now.
Moreover, Scarpa has been cited with approval by this
Court in five opinions, which were unanimous on the issue,
during the period June 1992 to April of this year. See
Starnes v. Cayouette, 244 Va. 202, 206, 419 S.E.2d 669, 671
(1992); Howard v. The Alexandria Hospital, 245 Va. 346, 350,
429 S.E.2d 22, 24 (1993); Renner v. Stafford, 245 Va. 351,
355, 429 S.E.2d 218, 221 (1993); Lo v. Burke, 249 Va. 311,
317, 455 S.E.2d 9, 13 (1995); and St. George v. Pariser, 253
Va. 329, 332, 484 S.E.2d 888, 890 (1997).
Unfortunately, the present majority, merely
acknowledging the existence of stare decisis and then
promptly discarding the doctrine, has chosen to inject
instability into the law of the Commonwealth. I believe
Scarpa should be controlling here, and thus would affirm the
judgment of the trial court.
Nunnally v. Artis
Court: Supreme Court of Virginia
Date filed: 1997-09-12
Citations: 492 S.E.2d 126, 254 Va. 247
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