Nunnally v. Artis

• Decision Date: 12 September 1997
• Docket Number: No. 961718,961718
• Citation: 492 S.E.2d 126,254 Va. 247
• Parties: Valerie F. NUNNALLY v. Dr. Avis Adriena ARTIS, et al. Record
• Court: Virginia Supreme Court

Page 126

492 S.E.2d 126

254 Va. 247

Valerie F. NUNNALLY v. Dr. Avis Adriena ARTIS, et al.

Record No. 961718.

Supreme Court of Virginia.

Sept. 12, 1997.

Robert W. Mann; G. Carter Greer (Young, Haskins, Mann & Gregory, Martinsville, on briefs), for appellant.

John T. Jessee, Roanoke; Lynne Jones Blain (Eleanor A. Lasky; N. Reid Broughton, Richmond; Flippin, Densmore, Morse, Rutherford & Jessee, Roanoke; Morris & Morris, Richmond, on brief), for appellees.

Doctors Insurance Reciprocal (Risk Retention Group) (Judith B. Henry; Robin M. Vogel, Richmond; Crews & Hancock, on brief), in support of appellees, amicus curiae.

Present: CARRICO, C.J., and COMPTON, STEPHENSON, ¹ LACY, HASSELL, KEENAN and KOONTZ, JJ.

HASSELL, Justice.

I.

In this appeal, we consider whether to overrule our decision in Scarpa v. Melzig, 237 Va. 509, 379 S.E.2d 307 (1989), holding that in an action for wrongful conception, the statute of limitations begins to run when the health care provider negligently performs the ineffective sterilization procedure.

II.

A.

On October 18, 1995, Valerie R. Nunnally filed her motion for judgment against Danville Memorial Hospital and Dr. Avis A. Artis, and alleged the following. Nunnally decided to have a sterilization because any subsequent pregnancies would have been detrimental to her health. Dr. Artis, the Hospital's purported agent, negligently performed a tubal ligation upon her on February 6, 1989. Nunnally became pregnant on November 1, 1993, and she gave birth to a healthy child. She "experienced a foreseeable traumatic delivery with consequent adhesions and other related medical problems."

The defendants filed special pleas in bar, asserting that Nunnally's action is barred by the applicable statute of limitations. The trial court entered a judgment sustaining the defendants' pleas, and we awarded Nunnally an appeal.

B.

Code § 8.01-243(A) provides, in pertinent part, that "every action for personal injuries, whatever the theory of recovery ... shall be brought within two years after the cause of action accrues." Code § 8.01-230 provides, in relevant part, that "[i]n every action for which a limitation period is prescribed, the cause of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person...."

Nunnally argues that the trial court erred in granting the defendants' special pleas of the statute of limitations. Nunnally contends that she pled a cause of action for wrongful conception, that her cause of action did not accrue until she was injured, that her injury occurred at conception and, hence, that the statute of limitations did not begin to run until November 1, 1993, the date she conceived her child. Thus, Nunnally urges us to overrule our decision in Scarpa v. Melzig, supra. The defendants respond that Nunnally's cause of action accrued on February 6, 1989, the date the sterilization procedure was performed and, thus, her action is barred by the two-year statute of limitations.

In Scarpa v. Melzig, we considered whether the trial court erred in ruling that a plaintiff's medical malpractice action was barred by the two-year statute of limitations. JoAnn C. Scarpa filed an action against her physicians, Eric P. Melzig and Wanda L. Radford. In June 1975, Scarpa was hospitalized under the care of Melzig for treatment of a pelvic infection. Melzig removed certain tissue and body structures from Scarpa's body during an operation. Melzig erroneously recorded in a written operative report that he had removed Scarpa's left fallopian tube when, in fact, the left fallopian tube was not among the structures removed. Melzig signed a hospital discharge summary which also erroneously indicated that Scarpa's left fallopian tube had been removed.

In August 1980, Scarpa was hospitalized under the care of Dr. Radford because Scarpa desired a permanent sterilization. Radford performed the procedure and noted that Scarpa's left fallopian tube was not present when, in fact, the left fallopian tube was present. Thus, Dr. Radford did not ligate, cut upon, or alter Scarpa's left fallopian tube.

Scarpa conceived and became pregnant in March 1984, and a child was born. During an assessment of her reproductive system, the presence of her left fallopian tube was confirmed.

Scarpa filed a notice of medical malpractice on November 12, 1985 and filed her motion for judgment on July 11, 1986. In her motion for judgment, she alleged that Dr. Melzig negligently failed to describe accurately the surgical procedures he performed on her, thereby preventing subsequent health care providers from being fully apprised of the status of her reproductive system. Scarpa also alleged that Dr. Radford was negligent in either failing to visualize adequately Scarpa's left fallopian tube or in failing to ligate or attempt to ligate that tube. The trial court held that Scarpa's cause of action was barred because the statute of limitations began to run on August 5, 1980, the date that Radford negligently performed the sterilization procedure.

On appeal, Scarpa contended that her action was not barred by the statute of limitations because her "only hurt" occurred when she conceived through her left fallopian tube and became pregnant in March 1984. Rejecting Scarpa's contention, we pointed out that the applicable statute of limitations required that every action for personal injuries shall be brought within two years after the cause of action accrued, Code § 8.01-243(A), and that Scarpa's cause of action accrued from the date she sustained an injury to the person and not when the resulting damage was discovered, Code § 8.01-230. We held that Scarpa's cause of action began to run at the time that the negligent 1980 sterilization- procedure was performed because, during that procedure she "endured trauma, pain, and inconvenience [and] due to defendants' alleged wrongful conduct, she was subjected to a wholly inadequate procedure and denied the adequate and complete sterilization which she requested." Scarpa, 237 Va. at 513, 379 S.E.2d at 310.

Justice Lacy, with whom Chief Justice Carrico joined, dissented. Justice Lacy was of opinion that although a legal wrong may have occurred in 1980 when Dr. Radford performed the negligent sterilization procedure upon Scarpa, no injury occurred because Mrs. Scarpa had suffered no "positive, physical or mental hurt" until she became pregnant. Id. at 515, 379 S.E.2d at 311.

C.

In Miller v. Johnson, 231 Va. 177, 343 S.E.2d 301 (1986), we held "that an action for wrongful pregnancy or wrongful conception may be maintained in Virginia." Id. at 183, 343 S.E.2d at 305. Explaining our holding, we stated:

"Individuals are ... free to practice contraception to further their constitutionally-protected choice not to have children. See Eisenstadt v. Baird, 405 U.S. 438, 453-54 [92 S.Ct. 1029, 1038-39, 31 L.Ed.2d 349] (1972); Griswold v. Connecticut, 381 U.S. 479, 485-86 [85 S.Ct. 1678, 1682, 14 L.Ed.2d 510] (1965).

Under traditional tort principles, it is clear that a physician who performs ... [a] sterilization procedure owes a legal duty to the patient. Where the patient can establish failure to perform the procedure with reasonable care and damages proximately resulting from breach of duty, she is entitled to recover as in any other medical malpractice action."

Id. at 182-83, 343 S.E.2d at 304.

Nunnally's motion for judgment alleges a cause of action for wrongful conception. The gist of an action for wrongful conception is that a health care provider negligently performed a sterilization procedure and, as a proximate result of that negligence, the patient conceives a child.

In Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900 (1981), we stated:

"We construe the statutory word [found in Code § 8.01-230] 'injury' to mean positive, physical or mental hurt to the claimant, not legal wrong to him in the broad sense that his legally protected interests have been invaded. Thus, the running of the time is tied to the fact of harm to the plaintiff, without which no cause of action would come into existence; it is not keyed to the date of the wrongful act, another ingredient of a personal injury cause of action."

221 Va. at 957-58, 275 S.E.2d at 904. Here, the injury of which Nunnally complains is not "trauma, pain, and inconvenience" that may have been associated with the negligent sterilization procedure. Rather, she complains of the consequences of the wrongful conception and the subsequent pregnancy which, for medical reasons, she sought to avoid. Indeed, we fail to understand how a plaintiff could have a cause of action for wrongful conception if there has been no conception.

Even though a legal wrong may have occurred in 1989 when the defendants performed the negligent sterilization procedure on Nunnally, we hold that no injury under the Locke accrual rule occurred at that time because Nunnally had suffered no "positive, physical or mental hurt" related to her alleged cause of action, wrongful conception. Thus, we are of opinion that Scarpa was wrongly decided and, therefore, it is expressly overruled.

D.

Our decision to overrule Scarpa is made with great reluctance. We recognize the importance of the doctrine of stare decisis in our jurisprudence. Indeed, we have stated:

"In Virginia, the doctrine of stare decisis is more than a mere cliche. That doctrine plays a significant role in the orderly administration of justice by assuring consistent, predictable, and balanced application of legal principles. And when a court of last resort has established a precedent, after full deliberation upon the issue by the court, the precedent will not be treated lightly or ignored, in the absence of flagrant error or mistake. Kelly v. Trehy, 133 Va. 160, 169, 112 S.E. 757, 760 (1922)."

Selected Risks Insurance Co. v. Dean, 233 Va. 260, 265, 355 S.E.2d 579, 581 (1987).

Our strong...