Berner v. Mills, Record No. 021006.

• Docket Nº: Record No. 021006.
• Citation: 579 S.E.2d 159, 265 Va. 408
• Case Date: April 17, 2003
• Court: Supreme Court of Virginia

579 S.E.2d 159
265 Va. 408

Todd BERNER, M.D., et al.
v.
Scott MILLS, Co-Administrator of the Estate of Nelson Mills, et al

Record No. 021006.

Supreme Court of Virginia.

April 17, 2003.

Susan L. Mitchell (McCarthy & Massey, on briefs), for appellants.

Robert T. Hall (Holly Parkhurst Essing; Donna Miller Rostant; Hall, Sickels, Rostant, Frei & Kattenburg, on brief), Reston, for appellees.

Present: HASSELL, C.J., LACY, KEENAN, KOONTZ, KINSER, and LEMONS, JJ., and CARRICO, S.J.

Opinion by Justice BARBARA MILANO KEENAN.

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

579 S.E.2d 160

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, 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 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...