Coffey v. VA. BIRTH-RELATED NEUR. INJURY

• Decision Date: 29 January 2002
• Docket Number: Record No. 0529-01-4.
• Parties: Devin Michael COFFEY, an Infant, by Daniell Marie Trivette COFFEY, his Mother and Next Friend, v. VIRGINIA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PROGRAM.
• Court: Virginia Court of Appeals

558 S.E.2d 563

37 Va. App. 390

Devin Michael COFFEY, an Infant, by Daniell Marie Trivette COFFEY, his Mother and Next Friend, v. VIRGINIA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PROGRAM.

Record No. 0529-01-4.

Court of Appeals of Virginia, Richmond.

January 29, 2002.

Ann LaCroix Jones (William O. Snead, III; Gary B. Mims; Mark A. Towery, Fairfax; Snead & Mims, on briefs), for appellant.

John J. Beall, Jr., Senior Assistant Attorney General (Randolph A. Beales, Sr., Acting Attorney General; Richard L. Walton, Jr., Senior Assistant Attorney General, on brief), for appellee.

Present: WILLIS, ELDER and ANNUNZIATA, JJ.

WILLIS, Judge.

On appeal from a decision of the Workers' Compensation Commission denying him benefits under the Birth-Related Neurological Injury Compensation Act, Code § 38.2-5000, et seq., Devin Michael Coffey, an infant, who sues by Danielle Marie Trivette Coffey, his mother and next friend, contends (1) that the commission erred in assuming jurisdiction and deciding his claim without affording him legal counsel; and (2) that the commission erred in holding that the Birth-Related Neurological Compensation Program (the Program) had successfully rebutted the presumption set forth in Code § 38.2-5008(A)(1). We affirm in part, reverse in part, and remand.

I. BACKGROUND

Danielle Marie Trivette Coffey gave birth to Devin following a forty-one to forty-two week pregnancy. The pregnancy was marked by increasing signs of pregnancy induced hypertension (preeclampsia). The labor involved slow cervical dilation and increasing signs of preeclampsia in the mother, including swelling, muscle spasms, and increased blood pressure. Fetal heart tracings ranging from seventy to one-hundred-eighty beats per minute and light meconium stained amniotic fluid indicated a distressed infant. The delivery was complicated by the child's large size and the mother's small stature. Two attempted forceps deliveries failed. A fourth-degree episiotomy was performed. The child was finally delivered after application of forceps to his head.

At one minute of life, Devin's APGAR score was two out of a possible ten. He was not breathing. His body was limp. He made no sounds. He gave no response to stimuli. His color was blue to pale. He was resuscitated with stimulation and his airways were suctioned. He received oxygen by mask and endotracheal tube.

At two minutes of life, Devin's arterial chord blood gases were critically low. They remained low for almost two hours after his birth. He had notable molding of the head with bruising, edema and abrasions.

For three hours following birth, Devin displayed audible respiratory grunting with nasal flaring and blueness and coldness of the extremities. He had difficulty feeding and had to be fed. He displayed increased oral secretions and a slight decrease in tone in his right arm.

Devin was discharged on his third day of life, only to be rushed back to the hospital the same evening for breathing difficulty with gagging and choking. His color changed to red and blue, and he had mucus in his nose and throat. He was examined and discharged. Over the course of the next two months, he continued to experience difficulty with secretions, gagging and choking for no apparent reason. He would curl up, jerk, and then relax.

On March 28, 1993, Devin was seen in the emergency room for sleeping excessively without waking to eat, not crying, and generally feeling limp. Four days later, he was rushed to the emergency room where he demonstrated jerking motions and apnea spells. At this point, he was diagnosed with a seizure disorder and infantile spasms, confirmed by EEG testing.

When Devin was four months old, his mother moved with him to Nebraska, where his care was assumed by staff at Creighton University Medical Center. His records from that institution describe seizures ranging from simple staring episodes to full flexor spasms with back arching, excessive salivation and choking.

Devin has undergone numerous tests to determine the cause of his condition. A workup for sepsis was unremarkable. A differential diagnosis of tuberous sclerosis suggested by an early MRI of the brain was ruled out by a follow-up EKG. Long chain fatty acid and metabolic studies failed to demonstrate metabolic disorder. Testing of diminished deep tendon reflexes demonstrated no specific etiology. He displayed no progressive decline in cognitive function. Perinatal asphyxia could not be ruled out.

Devin is now seven years old. He is profoundly retarded, quadriplegic, and cannot speak. His condition renders him permanently in need of assistance in all activities of daily living.

II. LEGAL ASSISTANCE

Code § 38.2-5009 directs the commission to enter an award in favor of an infant determined by it to have sustained a birth-related neurological injury, see Code § 38.2-5001, resulting from obstetrical services delivered by a participating physician or rendered in a participating hospital.

Code § 38.2-5001 defines a claimant under the Act as:

[A]ny person who files a claim ... for a birth-related neurological injury to an infant. Such claims may be filed by any legal representative on behalf of an injured infant.. ..

Thus, a claim may be filed by the infant or on his behalf by his legal representative. Code § 38.2-5004 sets forth the requirements for filing a claim under the Act.

On March 1, 2000, Danielle Marie Trivette Coffey filed in the commission on Deyin's behalf a petition setting forth the information required by Code § 38.2-5004. She did so as his mother. She is not a licensed attorney-at-law and has no professional legal training. She noted on the petition that Devin had "no legal representation." The claim proceeded through the commission with no legal representation on Devin's behalf, with Ms. Coffey acting as his next friend. On appeal, Devin argues (1) that the commission should have appointed legal counsel to represent him in the prosecution of his claim or a guardian ad litem to defend his interests, and (2) that by failing to ensure that he had legal representation in the prosecution of his claim, the commission denied him due process. These positions were not asserted before the commission. See Rule 5A:18. However, Devin contends that the failure to afford him these rights denied the commission jurisdiction to decide his claim, a position that can be raised at any time.

A. APPOINTMENT OF COUNSEL TO PROSECUTE THE CLAIM

Devin first argues that his disability as an infant entitled him to the appointment of legal counsel to prosecute his claim. He cites no authority in support of that contention, and we have found none. Indeed, express statutory provision and longstanding practice in this Commonwealth are to the contrary. Code § 8.01-8 provides:

Any minor entitled to sue may do so by his next friend. Either or both parents may sue on behalf of a minor as his next friend.

This statute contains no provision either requiring or authorizing the appointment of legal counsel for a minor who sues by his next friend.

In Womble v. Gunter, 198 Va. 522, 95 S.E.2d 213 (1956), the Supreme Court said:

Code § 8-87 [now § 8.01-8] authorizes an infant to sue by his next friend. The practice in Virginia is for such suits to be instituted in the name of the infant by one of the parents or other near relative without formal appointment. If the suit or action proceeds without objection, it is a recognition by the court that the infant is a party to the proceeding. ... In numerous cases we have held that in absence of fraud an infant is as much bound by a decree or judgment of a court as is an adult. The law recognizes no distinction between a decree against an infant and a decree against an adult, and, therefore, an infant can impeach it only upon grounds which would invalidate it in case of an adult party.

Id. at 530, 95 S.E.2d at 219. The record in this case contains no evidence of fraud. Rather, it reveals that the commission investigated and decided Devin's claim fairly and conscientiously.

The commission's failure to appoint legal counsel to prosecute Devin's petition did not deny it jurisdiction to decide his claim.

B. FAILURE TO APPOINT A GUARDIAN AD LITEM

Devin next argues that the commission should have appointed a guardian ad litem to defend his interests. Code § 8.01-9(A) provides, in pertinent part:

A suit wherein a person under disability is a party defendant shall not be stayed because of such disability, but the court in which the suit is pending, or the clerk thereof, shall appoint a discreet and competent attorney-at-law as guardian ad litem to such defendant ... and it shall be the duty of the court to see that the interest of the defendant is so represented and protected.

The statute specifically provides for the appointment of a guardian ad litem for an infant party defendant, not for an infant party plaintiff. The Supreme Court considered this very question in Cook v. Radford Community Hospital, 260 Va. 443, 536 S.E.2d 906 (2000), and held:

[Code § 8.01-9] is not concerned with the capacity of a person under a disability to sue but with the protection of such person when named as a defendant in a lawsuit. One who institutes litigation is in a posture completely different than one against whom suit is filed. The filing of a lawsuit is an affirmative act on the part of a plaintiff and does not carry with it the need for the type of court-initiated protection which may exist when a person with a disability is required to defend himself ... .

Id. at 449, 536 S.E.2d at 909.

Devin relies on our decision in Commonwealth ex. rel. Gray v. Johnson, 7 Va.App. 614, 376 S.E.2d 787 (1989), wherein we said:

The child ... not adequately represented may not receive his or her day in court, and the fundamental due process right to be heard may be a abridged.

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The strong public policy of this Commonwealth posits that the paramount concern where children are concerned are their best interests

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