Present: Carrico, C.J., Compton 1 , Lacy, Hassell, Keenan, and
Kinser, JJ., and Poff, Senior Justice
JAN PAUL FRUITERMAN, M.D.
AND ASSOCIATES, P.C.
OPINION BY
v. Record No. 990376 SENIOR JUSTICE RICHARD H. POFF
March 3, 2000
AHMAD WAZIRI AND HASSINI WAZIRI,
INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVES OF THE ESTATE OF
SYAWACH WAZIRI
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
In this appeal from a judgment entered in a medical
malpractice, wrongful death action, the appellant, Jan Paul
Fruiterman, M.D. and Associates, P.C., a professional
corporation (the P.C.), contends that the trial court erred in
denying coverage of the Virginia Birth-Related Neurological
Injury Compensation Act, Code § 38.2-5000 et seq. (the
Compensation Act), to professional corporations.
Ahmad and Hassini Waziri, individually and as personal
representatives of the estate of their son, Syawach, filed an
amended motion for judgment entitled "Medical Malpractice-
Wrongful Death" against Dr. Fruiterman, individually, and
against the P.C. Applying the rights and remedies defined in
the Compensation Act, the trial court sustained Dr. Fruiterman's
1
Justice Compton participated in the hearing and decision
of this case prior to the effective date of his retirement on
February 2, 2000.
demurrer. The court denied the co-defendant's demurrer on the
ground that the rights and remedies of the Compensation Act do
not apply to professional corporations. The jury returned a
verdict against the P.C. for $750,000 which the court reduced by
remittitur to $730,000.
The sufficiency of the evidence of medical malpractice and
proximate cause are not in issue on appeal. Expert witnesses
called by the plaintiffs testified that Dr. Fruiterman's
performance of the fetal delivery by Caesarian section was
conducted too late to avoid severe brain damage. In response to
medical opinion, the parents agreed to suspend life support
systems, and Syawach, their first-born child, died eight days
after birth.
The General Assembly enacted Chapter 50 of the Code of
Virginia, the Compensation Act, in 1987. That act "established
the Virginia Birth-Related Neurological Injury Compensation
Program." § 38.2-5002(A). The act provided that, subject to
two exceptions 2 , "the rights and remedies herein granted to an
infant on account of a birth-related neurological injury shall
exclude all other rights and remedies of such infant, his
2
The Compensation Act expressly provides that "a civil
action . . . shall not be foreclosed against a nonparticipating
physician or hospital", § 38.2-5002(D), or "against a physician
or hospital where there is clear and convincing evidence that
such physician or hospital intentionally or willfully caused or
2
personal representative, parents, dependents or next of kin, at
common law or otherwise arising out of or related to a medical
malpractice claim with respect to such injury." Id.
The Compensation Act established an "Injury Compensation
Fund to finance the . . . Compensation Program." § 38.2-5015.
To capitalize that fund, the Compensation Act provided that "[a]
physician who otherwise qualifies . . . may become a
participating physician in the Program . . . by paying an annual
participating physician assessment to the Program in the amount
of $5,000", § 38.2-5020(A), and that "a participating hospital
with a residency training program . . . may pay an annual
participating physician assessment to the Program for residency
positions," § 38.2-5020(B). To administer the Compensation
Program, "[t]he Virginia Workers' Compensation Commission [was]
authorized to hear and pass upon all claims filed pursuant to
this chapter", § 38.2-5003, and to "make an award providing
compensation for . . . items relative to . . . [a covered]
injury," § 38.2-5009.
I
The principal issue raised by the assignments of error is
whether a professional corporation is entitled to the rights and
benefits of the Compensation Act. The trial court ruled that it
intended to cause a birth-related neurological injury." § 38.2-
5002(C).
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was not. The P.C. contends that the trial court misconstrued
legislative intent. We disagree with the P.C.
On brief, the P.C. acknowledges that the Compensation Act
was intended to serve several interrelated purposes:
"Enacted in 1987 in direct response to the grossly
lessening availability of medical malpractice insurance for
obstetricians in the Commonwealth of Virginia, the
Compensation Act was intended to assure affordable
malpractice insurance and therefore a sufficient pool of
obstetricians practicing throughout the Commonwealth."
The legislative intent is reflected in the legislative
history recorded by legislators in the reports of subcommittees
of the two Houses of the General Assembly. See Senate Document
No. 11 (1987); House Joint Resolution No. 297 (1989); House
Document No. 63 (1990); House Joint Resolution No. 641 (1997).
See also King v. Neurological Injury Comp. Program, 242 Va. 404,
409-10, 410 S.E.2d 656, 660 (1991) (rejecting constitutional
challenge to Compensation Act).
As we have said, the Compensation Act provides that "the
rights and remedies herein granted to an infant . . . shall
exclude all other rights and remedies of such infant, his
personal representative, parents, dependents or next of kin, at
common law . . . ." § 38.2-5002(B). "Statutes in derogation of
the common law are to be strictly construed and not to be
enlarged in their operation by construction beyond their express
4
terms." Schwartz v. Brownlee, 253 Va. 159, 166, 482 S.E.2d 827,
831 (1997) (citation omitted).
The Compensation Act begins with expressly restrictive
definitions. A "[p]articipating physician" is "a physician
licensed in Virginia to practice medicine, who practices
obstetrics or performs obstetrical services", § 38.2-5001, and
"a licensed nurse-midwife who performs obstetrical services",
id., and pays "an annual participating physician assessment to
the Program", § 38.2-5020(A).
"'Participating Hospital' means a hospital . . . which
. . . had in force an agreement with the Commissioner of Health
. . . to participate in . . . a program to provide obstetrical
care to patients eligible for Medical Assistance Services and to
patients who are indigent, and . . . had in force an agreement
. . . whereby the hospital agreed to submit to review of its
obstetrical service . . . and . . . had paid the participating
assessment pursuant to § 38.2-5020 . . . ."
"Where the legislature has used words of a plain and
definite import the courts cannot put upon them a construction
which amounts to holding the legislature did not mean what it
has actually expressed." Barr v. Town and Country Properties,
240 Va. 292, 295, 396 S.E.2d 672, 674 (1990)(quoting Watkins v.
Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)).
5
Clearly, the General Assembly did not intend to immunize
all health-care providers from tort liability for birth-related
neurological injury caused by medical malpractice. The
legislature expressly identified those entitled to that immunity
as "participating physicians" and "participating hospitals";
then expressly defined "physicians" as obstetricians and nurse-
midwives who perform obstetrical services; and then expressly
specified that the term "participating" includes payment of an
annual assessment by qualified physicians and hospitals to
finance the costs of the benefits provided by the Compensation
Program. No such assessment was imposed upon a professional
corporation.
In summary, the Compensation Act expressly limits those
entitled to its rights and benefits to selected health-care
providers and expressly excludes "a nonparticipating physician
or hospital." § 38.2-5002(D). The legislative omission of other
health-care providers serving during the course of child birth,
such as pediatricians, radiologists, and medical partnerships,
confirms our conclusion that participating physicians and
hospitals were intended to be the only health-care providers
afforded immunity from civil liability by the Compensation Act.
A professional corporation, the employer of a participating
physician, is conspicuous by its absence.
II
6
In support of a second assignment of error, the P.C.
contends that "[t]he award for non-economic loss bears no
reasonable relation to the evidence and therefore is excessive."
The P.C. is referring to the jury's award of $655,973.46, a sum
in addition to its award for expenses incurred in "the care,
treatment and hospitalization of the decedent".
The wrongful death statute, § 8.01-52, provides that "[t]he
jury or the court . . . may award such damages as to it may seem
fair and just" and that "[t]he verdict or judgment . . . shall
include, but may not be limited to, damages for . . . [s]orrow,
mental anguish, and solace . . . ."
We find the evidence of sorrow, mental anguish, and solace
contained in this record fully sufficient to support the jury's
award, and finding no merit in the assignments of error, we will
affirm the judgment entered by the trial court.
Affirmed.
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