Hammer v. D.S., Record No. 0877-16-1

CitationRecord No. 0877-16-1
Case DateFebruary 28, 2017
CourtCourt of Appeals of Virginia


Record No. 0877-16-1


FEBRUARY 28, 2017


Present: Judges Humphreys, Beales and O'Brien
Argued at Norfolk, Virginia



Jason R. Davis (Mary Elizabeth Sherwin; Kaufman & Canoles, P.C., on briefs), for appellants.

Carla R. Collins, Senior Assistant Attorney General; Judith M. Cofield (Mark R. Herring, Attorney General; Rhodes B. Ritenour, Deputy Attorney General; Nicholas F. Simopoulos, Senior Assistant Attorney General, on brief), for appellees.

D.S. ("claimant" or "the child") and Crystal Senecal filed a medical malpractice suit against the physicians who provided prenatal care to Ms. Senecal, the child's mother. In defense of the claim, the physicians ("appellants") asserted statutory tort immunity under the Virginia Birth-Related Neurological Injury Compensation Act, Code §§ 38.2-5000 to -5021. At appellants' request, the circuit court transferred the case to the Workers' Compensation Commission ("the Commission") to determine whether claimant was required to accept compensation under the Act instead of proceeding with his lawsuit. Following a hearing, a deputy commissioner found that the Act did not apply and appellants were not entitled to statutory immunity. The full Commission affirmed. Appellants assert the following assignments of error on appeal:

Page 2

1. The Commission erred in interpreting and applying Virginia Code § 38.2-5001, specifically the time period during which a birth-related neurological injury may occur, for purposes of deciding applicability of the Act.

2. The Commission erred in finding that [claimant and the Virginia Birth-Related Neurological Injury Fund] met their burden of proof and production with sufficient credible evidence to rebut the presumption set forth in Virginia Code § 38.2-5008(A)(1)(a).

I. Legal Background

This case involves the application of the Virginia Birth-Related Neurological Injury Compensation Act ("the Act"). "One of only two such statutes in the nation, the . . . Act provides claimants with a no-fault remedy for compensation for qualified injuries." Cent. Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 42 Va. App. 264, 271, 590 S.E.2d 631, 635 (2004). "The Act also affords potential tort defendants . . . an absolute immunity to civil malpractice liability for these injuries" if they contribute to a compensation fund. Id. A claimant may seek application of the Act to his claim to obtain benefits from the fund. Or, "in cases where litigation may be more promising, a claimant may seek to defeat the application of the Act to his claim . . . where the tort defendants in a pending malpractice lawsuit seek the application of the Act to the claim over the objection of the claimant." Id. at 271-72, 590 S.E.2d at 635. Here, appellants sought to have the child's claim resolved pursuant to the Act, rather than in a medical malpractice suit.

For the Act to apply, the infant must have sustained a "birth-related neurological injury" as defined in Code § 38.2-5001. We have held that the definition of a "birth-related neurological injury" contains four elements:

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

Page 3

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."

Cent. Va. Obstetrics, 42 Va. App. at 272, 590 S.E.2d at 635-36 (quoting Code § 38.2-5001). If the party seeking application of the Act proves that the injury falls within this definition, then the Act applies. Id. at 273, 590 S.E.2d at 636.

However, "[t]he legislature, recognizing the difficulty in proving when, but not whether, such an injury was sustained, enacted a presumption to assist potential claimants in obtaining benefits." Wolfe v. Va. Birth-Related Neurological Injury Comp. Program, 40 Va. App. 565, 578, 580 S.E.2d 467, 473 (2003) (citing Code § 38.2-5008(A)(1)). A rebuttable presumption of a birth-related neurological injury applies when the proponent (in this case, appellants) proves elements one and three listed above. Cent. Va. Obstetrics, 42 Va. App. at 273, 590 S.E.2d at 636. "When these two predicate facts are proved, the factfinder may presume that elements two and four of the statutory definition are also met." Id.

Once the presumption applies, the burden of proof shifts to the party opposing the presumption (in this case, claimant and the Virginia Birth-Related Neurological Injury Fund) to disprove element two or four, and thereby establish "that the injuries alleged are not birth-related neurological injuries within the meaning of the chapter." Wolfe, 40 Va. App. at 578, 580 S.E.2d at 474 (quoting Code § 38.2-5008(A)(1)(a)).

Upon the request of a party who is a participating hospital or physician, Code § 8.01-273.1 directs a trial court to refer the case to the Commission to determine "whether the cause of action satisfies the requirements of the . . . Act." The claim "is reviewed by a panel of three qualified and

Page 4

impartial physicians drawn from the fields of obstetrics, pediatrics, pediatric neurology, neonatology, physical medicine and rehabilitation, or any other specialty particularly appropriate to the facts of a particular case." Code § 38.2-5008(B). The panel prepares a report, and in its conclusion determines whether the infant's injury "does or does not satisfy each of the criteria of a birth-related neurological injury [as defined in] § 38.2-5001." Code § 38.2-5008(C). The Commission must consider, but is not bound by, the panel's recomendation. Id. "The Commission has exclusive jurisdiction to decide whether an infant's claim lies within the purview of the Act." Berner v. Mills, 265 Va. 408, 411, 579 S.E.2d 159, 160 (2003).

II. Factual Background

Claimant filed a medical malpractice and negligence lawsuit against appellants, who requested that the case be referred to the Commission to determine application of the Act. The circuit court stayed the pending court action and referred the case to the Commission. The Virginia Birth-Related Neurological Injury Fund joined the suit, taking the claimant's position that the Act was not applicable. A panel of three independent physicians evaluated the medical evidence to determine whether the child's injury satisfied the criteria for a birth-related neurological injury under the Act. The panel members were experts in the fields of maternal-fetal medicine (Dr. Christian Chisholm), neonatology (Dr. Robert Sinkin), and developmental pediatrics (Dr. Kenneth Norwood). Their report detailed the following summary of evidence.

Crystal Senecal, a healthy twenty-six-year-old with no significant medical history, gave birth to D.S. on December 4, 2007. On that date, Senecal, who was approximately twenty-three weeks pregnant, was evaluated for abdominal pressure and found to be four centimeters dilated. She was admitted to the hospital and delivered "an extremely preterm male infant who was immediately resuscitated by Neonatology and transferred to the Neonatal Intensive Care Unit." At birth, claimant was bradycardic, flaccid, unresponsive, and required immediate resuscitation. He

Page 5

was put on a ventilator to receive mechanical respiration. The hospital report reflected that the child was an "extremely immature preterm baby." Following an extended period of care in the hospital, he was discharged on April 10, 2008. Ultimately, the panel concluded that while claimant suffered neurological injury, it was not caused by oxygen deprivation or mechanical injury during labor or delivery. The panel found that resuscitation was necessitated by the child's prematurity.

The panel report also summarized the post-neonatal medical history and the assessments completed by the child's school system. Doctors determined that claimant has "mild diparetic cerebral palsy." His cognitive and developmental tests reflected a borderline range between normal intelligence and a mild intellectual disability. Based on this evidence, the panel concluded that while claimant has...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT