Horn v. Abernathy

• Decision Date: 25 April 1986
• Docket Number: No. 821900,821900
• Parties: Lois HORN, Administratrix, etc. v. Dr. Robert A. ABERNATHY, et al. Record
• Court: Virginia Supreme Court

Page 318

343 S.E.2d 318

231 Va. 228

Lois HORN, Administratrix, etc. v. Dr. Robert A. ABERNATHY, et al.

Record No. 821900.

Supreme Court of Virginia.

April 25, 1986.

Roger W. Mullins (James R. Henderson, IV, Mullins & Mullins, Tazewell, on briefs), for appellant.

Wm. W. Eskridge, Abingdon, George W. Wooten, John T. Jessee (Gary E. Tegenkamp, Richard E.B. Foster, William B. Poff, Roanoke, Penn, Stuart, Eskridge & Jones, Abingdon, Woodward, Fox, Wooten & Hart, Woods, Rogers, Muse, Walker & Thornton, Roanoke, on briefs), for appellees.

Present: All the Justices.

POFF, Justice.

This is a plaintiff's appeal from a judgment sustaining pleas of the statute of limitations. Invoking Code § 8.01-50, the plaintiff claimed compensatory and punitive damages for death by wrongful act. The wrongful act alleged was medical malpractice, and we must construe the Medical Malpractice Act, Code §§ 8.01-581.1 et seq. (the Act), as applied to the chronology of events disclosed by this record.

Eileen Mays, a patient in Clinch Valley Community Hospital, died there on August 19, 1978. By letter dated August 8, 1980 and mailed by certified mail on August 9, Palmer Mays, her husband and personal representative, gave notice of claim pursuant to the Act to the hospital and others he named as health care providers. By letter addressed to the Chief Justice of this Court, dated October 8, 1980 and mailed by first class mail on October 9, the hospital filed a request for review by a medical malpractice review panel. The hospital stated that a copy of its letter had been dispatched by certified mail to Palmer Mays on October 8. None of the other providers named in the notice of claim filed a request for a panel.

In a letter dated October 20, 1980, the Executive Secretary of this Court advised the hospital that its request was filed "outside the sixty-day statute period allowed for filing requests" and that "no authority exists now for the designation of a panel."

Counsel for the decedent's estate learned about this in a telephone conversation with an opposing attorney on December 31, 1980 and, by letter dated January 5, 1981, asked the Executive Secretary for clarification. Confirming the denial in his letter of January 15, the Executive Secretary enclosed a copy of his letter of October 20, 1980 to the hospital. In a later letter, he explained that the hospital's request for a panel had been mailed by first class mail on October 9 and, because it had not been posted by registered or certified mail and not delivered until October 10, "the request was not filed within the required sixty-day period."

Suit was filed on February 19, 1981. Palmer Mays had died December 3, 1980, and Lois Horn, the Mays' daughter, qualified as personal representative of the estates of both parents. The motion for judgment was filed in her name as plaintiff against the hospital and the other health care providers listed in the margin. ¹ By final judgment incorporating a letter opinion, the trial court sustained the defendants' pleas of the statute of limitations and dismissed the motion for judgment with prejudice.

Code § 8.01-244(B) provides that a wrongful death action "shall be brought ... within two years after the death of the injured person." However, when such an action is premised upon a claim of medical malpractice, the Medical Malpractice Act controls certain rights and obligations of the parties.

Under Code § 8.01-581.2 (Repl.Vol.1977), a claimant has no right to bring such an action unless he gives the health care provider written notice of his claim. Thereafter, either the claimant or the provider has the right within 60 days to file a written request for a review by a medical malpractice review panel.

The request for review shall be mailed to the Chief Justice of the Supreme Court of Virginia. No actions based on alleged malpractice shall be brought within ninety days of the notification by the claimant to the health care provider and if a panel is requested within the period of review by the medical review panel.

Id. "The notice of a claim ... or the request ... shall be deemed to be given when delivered or mailed by registered or certified mail to the appropriate claimant or health care provider at his office, residence or last known address." Code § 8.01-581.9 (Repl.Vol.1977).

The Act also modifies the running of the statute of limitations applicable to all actions claiming damages for injuries or death alleged to result from medical malpractice. Code § 8.01- 581.9 (Repl.Vol.1977) provides that "[t]he giving of notice of a claim pursuant to § 8.01-581.2 shall toll the applicable statute of limitations for and including a period of one hundred twenty days following the notice to the health care provider as specified in § 8.01-581.2, or sixty days following issuance of any opinion by the medical review panel, whichever is later." Id.

On appeal, plaintiff Horn contends that the hospital's request for a medical malpractice review panel was "properly and timely filed" and that "denial of the request was erroneous". Plaintiff mailed the notice of claim on August 9, 1980. Code § 8.01-581.2 (Repl.Vol.1977) allows health care providers 60 days from that date within which to "file a written request" for a panel. Notice of such a request "shall be deemed to be given when ... mailed by registered or certified mail to the ... claimant". Code § 8.01-581.9 (Repl.Vol.1977). Horn argued at bar that the date on which the hospital gave Palmer Mays notice of its request was October 8, 1980, the sixtieth day following the giving of notice of claim, and that the Chief Justice should have granted the request and, thus, tolled the statute of limitations.

It is true that, in its letter of request addressed to the Chief Justice, the hospital stated that a copy of its letter had been mailed by certified mail to the plaintiff on October 8. The parties stipulated for the record, however, that the "Post Office cancellation stamp" on the "REQUEST FOR PANEL" was dated "October 9, 1980", the sixty-first day following the mailing of the notice of claim. The envelope containing the copy of the hospital's letter mailed to the plaintiff does not appear in the record. Absent proof of the date of cancellation, we must construe the stipulation to apply to the mailing of both the original and the copy of the request for a panel.

Moreover, Horn overlooks the distinction the Act makes between the giving of notice of a request for a panel and the filing of such a request. The Act requires each party to give the other written notice of its action, and under Code § 8.01-581.9 (Repl.Vol.1977), such notice is deemed given when delivered or mailed by registered or certified mail. But the giving of notice to an adverse party is not a filing. Code § 8.01-581.2 (Repl.Vol.1977) provides that the health care provider must "file a written request" which "shall be mailed to the Chief Justice of the Supreme Court of Virginia", and Rule Two(c) of the Medical Malpractice Rules explains that the request "shall be deemed to be filed when delivered or mailed by registered or certified mail to the Chief Justice of the Supreme Court of Virginia". ² Because the hospital's request was not mailed by registered or certified mail to the Chief Justice, it was not filed until it was delivered. It was not delivered until October 10, 1980 and, accordingly, was not filed until the sixty-second day following the giving of notice of the claim.

Next, Horn argues that "the request for a panel has never been denied by proper and lawful authority" and that "the request therefore remains pending and the statute remains tolled." The plaintiff bases this argument on the theory that the decision denying the request was not made or formally authorized by the Chief Justice. In our view, the argument and the theory upon which it rests are beside the point. The question is whether the filing was timely or untimely. That question is a question of fact, and the record demonstrates conclusively that the filing did not satisfy the time limitation imposed by the Act.

In a related argument, Horn urges us to hold that the hospital is "estopped to deny the timely filing of the request and the continuation of the tolling provisions." In its letter requesting a panel, the hospital stated that it had sent a copy to Palmer Mays by certified mail on October 8. Horn says that this was an express representation that a request had been filed within the 60-day period prescribed by statute and that the claimant was entitled to rely upon its verity. Horn also contends that the hospital "had a duty to inform the Claimant" when it received notice that the request for a panel had been denied. "Thus", she concludes, "there was both a representation and concealment which misled Claimant to her detriment."

There is no evidence that the hospital acted with fraudulent intent. Thus Horn's estoppel argument can only be construed as being premised upon an allegation of constructive fraud. We have previously held that constructive fraud will not toll the statute of limitations. In Housing Authority v. Laburnum Corp., 195 Va. 827, 80 S.E.2d 574 (1954), we were required to interpret a statutory ancestor of Code § 8.01-229(D)(4) which provides that a defendant's obstruction of a plaintiff's cause of action tolls the statute of limitations. There we said:

Constructive fraud is not such as will toll the running of the statute of limitations. The character of fraud necessary to toll the statute must be of a variety involving moral turpitude. A defendant must intend to conceal the discovery of the cause of action by trick or artifice and must have thus actually concealed it from the plaintiff in order for the exception to apply.

Id. at 840, 80 S.E.2d at 582. Accord Hawks v. DeHart, 206 Va. 810, 814, 146 S.E.2d 187, 190 (1966). See also Culpeper N. Bank v. Tide. I. Co., 119 Va. 73, 83-84, 89 S.E. 118, 121 (1916); Foster v. Rison, 58 Va. (17...