Berner v. Mills

PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Carrico, S.J.

TODD BERNER, M.D., ET AL.

v. Record No. 021006 OPINION BY JUSTICE BARBARA MILANO KEENAN
April 17, 2003
SCOTT MILLS, CO-ADMINISTRATOR
OF THE ESTATE OF NELSON MILLS, ET AL.

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals

erred in affirming a decision of the Virginia Workers'

Compensation Commission (the Commission) that it lacked

jurisdiction to consider a claim against a professional

corporation under the Virginia Birth-Related Neurological Injury

Compensation Act (the Act), Code §§ 38.2-5000 through -5021.

The primary question we decide is whether certain statutory

amendments providing for the inclusion of professional

corporations under the Act apply retroactively to bar a wrongful

death action filed in a circuit court against a particular

professional corporation.

We will state the facts relevant to this issue of law. In

May 1998, Tara Mills gave birth to a son, Nelson Mills, who

allegedly sustained multiple skull fractures and other serious,

irreversible physical injuries resulting from medical procedures

employed during the course of his delivery. Nelson was

maintained on "life support" systems for about ten days, and he
died following his parents' decision to discontinue that medical

support.

In April 1999, Tara Mills and her husband, Scott A. Mills

(collectively, the Mills), in their capacity as co-

administrators of Nelson's estate, filed a motion for judgment

in the Circuit Court of Arlington County against Todd Berner,

M.D., and his employer, Primary Care for Women, P.C. (Primary

Care). 1 The Mills asserted a wrongful death claim alleging that

Nelson died as the result of "massive head injuries from skull

fractures" caused by Dr. Berner's negligent use of forceps

during the delivery process.

In July 1999, pursuant to Code § 8.01-273.1, Dr. Berner and

Primary Care asked the circuit court to refer the Mills' claims

to the Commission to determine whether the Commission had

exclusive jurisdiction under the Act to consider the claims.

The Act generally provides the sole remedy for infants who have

incurred a birth-related neurological injury caused by a

"participating physician" or a "participating hospital," and

bars infants who have sustained injuries of this nature from

maintaining a common law tort action against such a

"participating physician" or "participating hospital." See Code

§ 38.2-5002(B); Gibson v. Riverside Hosp., Inc., 250 Va. 140,

1
By agreement of the parties, the action later was
transferred to the Circuit Court of Fairfax County.

2
142, 458 S.E.2d 460, 462 (1995). The Commission has exclusive

jurisdiction to decide whether an infant's claim lies within the

purview of the Act. See Code § 38.2-5003.

In January 2000, the circuit court stayed proceedings on

the motion for judgment and referred the Mills' claims to the

Commission for a determination whether the claims were subject

to the provisions of the Act. In March 2000, this Court decided

Fruiterman v. Waziri, 259 Va. 540, 544-45, 525 S.E.2d 552, 554

(2000), in which we held that a professional corporation did not

qualify as a "participating hospital" or a "participating

physician" under the Act and, thus, was not afforded immunity

from tort liability for birth-related neurological injuries

caused by medical malpractice.

Based on the holding in Fruiterman, the Mills asked the

Commission to remand their claim against Primary Care to the

circuit court. The Mills informed the Commission that if it

took this action, they would nonsuit their remaining claims

against Dr. Berner and would waive any other claim they might

have against any defendant under the Act.

On April 1, 2000, the Governor of Virginia approved the

General Assembly's amendment and reenactment of Code §§ 8.01-

273.1 and 38.2-5001. Acts 2000, ch. 207. Code § 8.01-273.1 was

amended, in relevant part, to permit a party to an action in a

circuit court, who is "a participating hospital or physician as

3
defined in § 38.2-5001," to request the Commission to determine

whether the claim on which the tort action is based is subject

to the jurisdiction of the Act.

Under amended Code § 38.2-5001, the definition of the term

"participating physician" was expanded to include a

"professional corporation . . . or other entity through which

the participating physician practices." As part of its

amendment and reenactment of Code § 38.2-5001, the General

Assembly stated that "the provisions of this act amending

§ 38.2-5001 are declaratory of existing law." Acts 2000, ch.

207, cl. 2.

Several weeks later, a deputy commissioner granted the

Mills' motion to remand their claims to the circuit court.

Based on the holding in Fruiterman, the deputy commissioner

concluded that the Commission did not have jurisdiction over

Primary Care because it did not qualify as either a

"participating physician" or a "participating hospital" under

the Act. The deputy commissioner also held that the April 1,

2000 amendments did not apply retroactively to the Mills'

claims.

Dr. Berner and Primary Care appealed to the full

Commission, which affirmed the deputy commissioner's decision.

The Commission held, in relevant part, that the amendments could

not be applied retroactively to the Mills' claims because the

4
amendments would deprive the Mills of their substantive right to

bring a wrongful death action in the circuit court against

Primary Care.

Dr. Berner and Primary Care (the defendants) appealed this

decision to the Court of Appeals, which affirmed the

Commission's decision. Berner v. Mills, 38 Va. App. 11, 13, 18,

560 S.E.2d 925, 926, 928 (2002). The Court of Appeals

concluded, in relevant part, that the amendments applied "only

to cases that arose after their enactment" because "the General

Assembly did not clearly, explicitly and unequivocally state

that the . . . amendments were to be applied retroactively to

causes of action that accrued before April 1, 2000." Id. at 17,

560 S.E.2d at 928. Thus, the Court of Appeals held that the

Commission did not err in applying the decision in Fruiterman

and in concluding that the Commission lacked jurisdiction over

Primary Care, a professional corporation. Id. at 18, 560 S.E.2d

at 928. The defendants appeal.

The defendants argue that the Court of Appeals erred in

affirming the Commission's refusal to apply the amendments to

Code § 38.2-5001 retroactively to the Mills' claims. They

assert that the General Assembly plainly expressed an intent

that those amendments be applied retroactively by stating that

the amended statute was "declaratory of existing law." The

defendants also contend that because Code § 38.2-5001 was

5
amended and reenacted soon after our decision in Fruiterman, the

amendments did not effect a substantive change in the law but

merely articulated "what always has been the law and what always

should have been the interpretation thereof." We disagree with

the defendants' arguments.

Our analysis is guided by the fundamental principles of

statutory construction that retroactive laws are not favored,

and that a statute is always construed to operate prospectively

unless a contrary legislative intent is manifest. Adams v.

Alliant Techsystems, Inc., 261 Va. 594, 599, 544 S.E.2d 354, 356

(2001); McIntosh v. Commonwealth, 213 Va. 330, 331-32, 191

S.E.2d 791, 792 (1972); Duffy v. Hartsock, 187 Va. 406, 419, 46

S.E.2d 570, 576 (1948). The General Assembly incorporated the

substance of these basic principles into the language of Code

§ 1-13.39:3, which provides additional direction concerning

statutes, such as the two before us, that contain the word

"reenacted" in their title or enactment. 2 Code § 1-13.39:3

states:

Whenever the word "reenacted" is used in the
title or enactment of a bill or act of assembly, it
shall mean that the changes enacted to a section of
the Code of Virginia or an act of assembly are in
addition to the existing substantive provisions in

2
Code § 1-13.39:3, enacted in 2001, is applicable to the
present appeal because the statute is a procedural provision of
law. See Walke v. Dallas, Inc., 209 Va. 32, 35, 161 S.E.2d 722,
724 (1968).

6
 that section or act, and are effective prospectively
unless the bill expressly provides that such changes
are effective retroactively on a specified date.

The provisions of this section are declaratory of
existing public policy and law.

Based on this provision, a "reenacted" statute will be

applied retroactively only if the bill or act of assembly

containing the legislation explicitly and unequivocally meets

the requirements of Code § 1-13.39:3. Both Code §§ 8.01-273.1

and 38.2-5001 are subject to the above requirements because the

single bill that enacted the amendments to both statutes

employed the word "reenacted" in stating the contents of the

legislation. That bill, however, did not contain an express

provision that the statutory changes would be effective

retroactively on a specified date. See Acts 2000, ch. 207. The

absence of this required language from the bill compels a

conclusion that the amendments to those sections are effective

prospectively, not retroactively.

We also observe that, in enacting other amendments to the

Act, the General Assembly employed language plainly manifesting

a retroactive intent under the provisions of Code § 1-13.39:3.

For example, in its amendment and reenactment of Code § 38.2-

5009, the General Assembly stated that "[t]he amendments to this

section . . . shall be retroactively effective in all cases

arising prior to July 1, 1990, that have been timely filed and

7
are not yet final." Code § 38.2-5009(B); see also Code § 38.2-

5001 (stating in 1999 amendment that definition of "Birth-

related neurological injury" as set forth in that statute "shall

apply retroactively to any child born on and after January 1,

1988"). The General Assembly's failure to use language of this

nature in the bill reenacting Code §§ 8.01-273.1 and 38.2-5001

further demonstrates that the amendments to that section were

not intended to be applied retroactively. Thus, we hold that

the phrase "declaratory of existing law" is not a statement of

retroactive intent, and that the language of Code §§ 8.01-273.1

and 38.2-5001 does not manifest a legislative intent that the

statutes be applied retroactively.

The contrary conclusion advanced by the defendants would

effectively nullify the requirement in Code § 1-13.39:3 that

"reenacted" statutes apply prospectively unless the bills

enacting them contain certain specified language. Moreover, any

construction of the phrase "declaratory of existing law" as a

statement of retroactive intent would render the language of

Code § 1-13.39:3 self-contradictory and meaningless. 3 Under

3
We also find no merit in the defendants' contention,
advanced at oral argument in this case, that the terms
"declaratory of existing public policy and law" and "declaratory
of existing law" signal a retroactive legislative intent in some
statutes, but demonstrate a prospective legislative intent in
other statutes. We will not assign the same statutory language
contradictory interpretations.

8
basic rules of statutory construction, we are prohibited from

construing a statute in such a manner. See Sansom v. Bd. of

Supervisors, 257 Va. 589, 595, 514 S.E.2d 345, 349 (1999);

Hubbard v. Henrico Ltd. P'ship, 255 Va. 335, 340, 497 S.E.2d

335, 338 (1998); Doss v. Jamco, Inc., 254 Va. 362, 371, 492

S.E.2d 441, 446 (1997). Therefore, we conclude that the Court

of Appeals correctly held that the Commission did not err in

refusing to apply Code §§ 8.01-273.1 and 38.2-5001 retroactively

and, thus, that the Commission lacked jurisdiction over Primary

Care based on our decision in Fruiterman. 4

For these reasons, we will affirm the Court of Appeals'

judgment.

Affirmed.

4
Based on our holding that Code §§ 8.01-273.1 and 38.2-5001
do not apply retroactively to the Mills' claim, we do not reach
the issue whether a retroactive application of those statutes
would impair any substantive or vested right belonging to the
Mills.

9