Central Virginia Obstetrics v. Whitfield

• Decision Date: 13 January 2004
• Docket Number: Record No. 0399-03-2,Record No. 0400-03-2.
• Citation: 42 Va. App. 264,590 S.E.2d 631
• Court: Virginia Court of Appeals
• Parties: CENTRAL VIRGINIA OBSTETRICS & GYNECOLOGY ASSOCIATES, P.C., and Kwasi A. Debra, M.D. v. Lawanda P. WHITFIELD, Administratrix of the Estate of DeJuan L. Whitfield-Smith. Chippenham & Johnston-Willis Hospital, Inc. v. Virginia Birth-Related Neurological Injury Compensation Program.

590 S.E.2d 631

42 Va. App. 264

CENTRAL VIRGINIA OBSTETRICS & GYNECOLOGY ASSOCIATES, P.C., and Kwasi A. Debra, M.D. v. Lawanda P. WHITFIELD, Administratrix of the Estate of DeJuan L. Whitfield-Smith.

Chippenham & Johnston-Willis Hospital, Inc. v. Virginia Birth-Related Neurological Injury Compensation Program.

Record Nos. 0399-03-2, 0400-03-2.

Court of Appeals of Virginia, Salem.

January 13, 2004.

Kathleen M. McCauley, Richmond; Linda B. Georgiadis; (Michael L. Goodman; Anthony Tacconi; Matthew D. Joss, Richmond; Goodman, Allen & Filetti, PLLC; LeClair Ryan, Richmond, on briefs), for appellants.

William C. Carr, Jr. (Emroch & Kilduff, L.L.P., on brief), Richmond, for appellee Lawanda P. Whitfield, Administratrix of the Estate of Dejuan L. Whitfield-Smith, Deceased.

Scott John Fitzgerald, Assistant Attorney General (Jerry W. Kilgore, Attorney General; Judith Williams Jagdmann, Deputy Attorney General; Edward M. Macon, Senior Assistant Attorney General, on brief), for appellee Virginia Birth-Related Neurological Injury Compensation Program.

Present: HUMPHREYS, FELTON and KELSEY, JJ.

D. ARTHUR KELSEY, Judge.

Dejuan Whitfield-Smith died within a couple of hours after his birth. His estate filed a malpractice action in Richmond Circuit Court against Chippenham & Johnston-Willis Hospital, Inc., Central Virginia Obstetrics & Gynecology Associates, P.C., and Kwasi A. Debra, M.D. In defense of this claim, the defendants asserted statutory tort immunity under the Virginia Birth-Related Neurological Injury Compensation Act, Code §§ 38.2-5000 to 38.2-5021. As the Act requires, the circuit court referred the question to the Virginia Workers' Compensation Commission. After hearing conflicting medical evidence, the commission held that the Act did not apply to Dejuan's injury and thus did not afford statutory immunity to the tort defendants. The defendants, appellants in this consolidated appeal, seek our review of the commission's decision. They contend that the commission misapplied the burden of proof and made insupportable factual findings. Disagreeing with both contentions, we affirm.

I.

On appeal, we view the evidence in the light most favorable to the prevailing party before the commission. Clinchfield Coal Co. v. Reed, 40 Va.App. 69, 72, 577 S.E.2d 538, 539 (2003); Tomes v. James City (County Of) Fire, 39 Va.App. 424, 429, 573 S.E.2d 312, 315 (2002).

Lawanda Whitfield gave birth to an infant son, Dejuan Whitfield-Smith, at Chippenham Medical Center on December 30, 1998. Dr. Kwasi Debra, an obstetrician, used forceps extraction during the delivery. When Dejuan emerged from the birth canal, his nuchal cord was wrapped tightly around his neck.

After being cut free, Dejuan remained in severe respiratory distress. His Apgar scores were 1 at one minute, 0 at five minutes, and 0 at ten minutes.¹ Dr. Debra pronounced Dejuan dead in the delivery room and handed him over to his mother. Dejuan's mother noticed, however, that he appeared to be gasping for breath. A nurse also noted that Dejuan was moving his arms and legs. She took the child's pulse and discovered he had a heart rate in the 150s. An intensive care team took Dejuan to the Neonatal Intensive Care Unit. Dejuan's condition quickly deteriorated. He was, again, pronounced dead about two hours later.

Dr. Fabio Gutierrez performed an autopsy and concluded that the cause of Dejuan's death was cardiopulmonary arrest secondary to birth asphyxia as a result of being choked by his umbilical cord during labor and delivery. Dejuan's mother, as administratrix of her son's estate, filed a wrongful death action in circuit court against Dr. Debra, her medical practice, and the hospital. Asserting that Dejuan's injury fell within the scope of the Virginia Birth-Related Neurological Injury Compensation Act, the defendants sought the statutory tort immunity afforded under the Act. Pursuant to Code § 8.01-273.1, the trial court referred the question to the commission. Before the commission, the parties submitted conflicting medical evidence on the newborn's precise condition prior to his death. This evidence, the defendants argued, triggered a statutory presumption that the Act governed Dejuan's injury. The commission disagreed, finding the evidence insufficient to invoke the presumption.

Dr. Debra, her medical practice, and the hospital appeal the commission's ruling to us claiming (a) the commission failed to properly apply the Act's statutory presumption and thereby misallocated the burden of proof, and (b) had the presumption been applied properly, it would have established the Act's coverage. After reviewing the history and purposes of the Act, we will address each of the appellants' arguments in turn. In our judgment, neither has merit.

II.

One of only two such statutes in the nation, the Virginia Birth-Related Neurological Compensation Act provides claimants with a no-fault remedy for compensation for qualified injuries. See Code § 38.2-5009.² The Act also affords potential tort defendants (at least those who contribute voluntary assessments to the fund under Code § 38.2-5015), with an absolute immunity to civil malpractice liability for these injuries. See Code § 38.2-5002(B). "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.'" Berner v. Mills, 265 Va. 408, 411, 579 S.E.2d 159, 160 (2003).

This finely engineered quid pro quo, however, does not uniformly favor claimants or potential tort defendants. In cases where malpractice litigation appears ill advised, a claimant may seek the application of the Act to his claim to obtain benefits from the statutory compensation fund. See Code §§ 38.2-5009, 38.2-5015(A). But in cases where litigation may be more promising, a claimant may seek to defeat the application of the Act to his claim. Each of our cases discussing the Act involves instances where claimants sought the application of the Act to their claims and were willing to stipulate the resulting tort immunity afforded to potential malpractice defendants.³ The case before us now, however, involves one of the second type: a situation where the tort defendants in a pending malpractice lawsuit seek the application of the Act to the claim over the objection of the claimant.

For the Act to apply, the infant must have suffered a "birth-related neurological injury." See Coffey v. Va. Birth-Related Neuro. Injury Comp. Pgm., 37 Va.App. 390, 399-400, 558 S.E.2d 563, 568 (2002)

. Under Code § 38.2-5001, four things must be true for an injury to fit this definition:

(1) The infant sustained "an injury to the brain or spinal cord" that was "caused by deprivation of oxygen or mechanical injury."

(2) The injury occurred "in the course of labor, delivery or resuscitation necessitated by a deprivation of oxygen or mechanical injury that occurred in the course of labor or delivery, in a hospital."

(3) The injury rendered the infant "permanently motorically disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be cognitively evaluated, cognitively disabled."

(4) Such disability caused "the infant to be permanently in need of assistance in all activities of daily living."⁴

If the party seeking the Act's application proves that the injury falls within this definition, the Act applies. The result is the potential availability of compensation to the claimants under Code § 38.2-5009 and the certain availability of tort immunity for any potential tort defendants under Code § 38.2-5002(B).

Under the Act, a rebuttable presumption of a birth-related neurological injury exists when the proponent of the Act's coverage proves elements one and three of the § 38.2-5001 definition. See Code § 38.2-5008(A)(1)(a). When these two predicate facts are proved, the factfinder may presume that elements two and four of the statutory definition are also met.⁵ Once the presumption applies, the burden of proof shifts to the party opposing the presumption to disprove elements two and four, and thereby establish "that the injuries alleged are not birth-related neurological injuries within the meaning of the chapter." Wolfe v. Va. Birth-Related Neuro. Injury Comp. Pgm., 40 Va.App. 565, 578, 580 S.E.2d 467, 474 (2003) (quoting Code § 38.2-5008(A)(1)(a)).⁶

A.

In this case, the parties agree that Dejuan suffered "an injury to the brain or spinal cord" caused by the "deprivation of oxygen or mechanical injury"—element one of the statutory definition and the first predicate fact necessary for the presumption. They also agree that Dejuan's injury occurred "in the course of labor, delivery or resuscitation necessitated by a deprivation of oxygen or mechanical injury that occurred in the course of labor or delivery, in a hospital"—element two of the definition and a fact that may be inferred if the presumption applies. The parties dispute whether Dejuan's injury caused him to be "permanently in need of assistance in all activities of daily living," but admit that this fact may be inferred if the statutory presumption applies.

The dispositive issue thus centers on whether appellants established that Dejuan, prior to his death, was permanently "motorically disabled" and "developmentally" or "cognitively" disabled—the second predicate fact necessary for the § 38.2-5008(A)(1)(a) presumption to apply. To resolve this dispute, we must first address appellants' argument that a predicate fact can be established merely by "the submission of any credible evidence." Under this view, the presentation of any plausible evidence (regardless of whether it is in fact believed) triggers the presumption and shifts the burden of persuasion to the other side to rebut it. After all, appellants correctly...