Berner v. Mills Ex Rel. Estate of Mills, Record No. 1298-01-4.

• Citation: 560 S.E.2d 925, 38 Va. App. 11
• Case Date: March 26, 2002
• Court: Court of Appeals of Virginia

560 S.E.2d 925
38 Va. App. 11

Todd BERNER, M.D. and Primary Care for Women, P.C.,
v.
Scott and Tara MILLS, Co-Administrators of the ESTATE OF Nelson MILLS, and Tara Mills, Individually

Record No. 1298-01-4.

Court of Appeals of Virginia, Alexandria.

March 26, 2002.

560 S.E.2d 926

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

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

Present: WILLIS, AGEE, JJ., and OVERTON, Senior Judge.

OVERTON, Judge.

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 birthrelated neurological injury caused by medical malpractice. Id. at 545, 525 S.E.2d at 554. Therefore, the plaintiff in Fruiterman was able to pursue 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...