PEREZ BY PEREZ v. Espinola

• Decision Date: 06 November 1990
• Docket Number: Civ. A. No. 90-1254-A.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Maria Rosa PEREZ, A Minor, By Her Father and Next Friend Miguel Fernandez PEREZ, and Maria Rosa Perez, Plaintiffs, v. Mario E. ESPINOLA, M.D., Defendant.

749 F. Supp. 732

Maria Rosa PEREZ, A Minor, By Her Father and Next Friend Miguel Fernandez PEREZ, and Maria Rosa Perez, Plaintiffs, v. Mario E. ESPINOLA, M.D., Defendant.

Civ. A. No. 90-1254-A.

United States District Court, E.D. Virginia, Alexandria Division.

November 6, 1990.

Richard Charley Shadyac, Jr., Shadyac & Shadyac, Arlington, Va., for plaintiffs.

Tara M. McCarthy, Slenker, Brandt, Jennings & Johnston, Fairfax, Va., for defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

I. Background

The unsettled question of Virginia law raised in this diversity malpractice case is whether the statute of limitations tolling provision for a minor's claim applies also to a parent's claims for medical expenses and emotional distress stemming from the same incident of alleged malpractice.

The pertinent facts may be simply stated. In 1978, Mrs. Perez became a patient of defendant, an obstetrician then practicing in Virginia. In early 1979, she became pregnant and was treated by defendant during the course of her pregnancy. On October 31, 1979, the minor plaintiff¹ was born at Fairfax Hospital. During and following her birth, the minor plaintiff allegedly suffered serious injuries, including severe brain damage, cerebral palsy, and loss of body functions. In June 1989, almost ten years later, plaintiffs notified defendant of their malpractice claim, as required by Va.Code § 8.01-581.2(A). The complaint was filed in September 1990.

Three claims are asserted in the complaint, two by the mother and one by the child. The child sues by her father for the personal injuries allegedly caused by defendant's negligence. The mother asserts claims for the recovery of medical expenses incurred in the treatment of the child and for negligent infliction of emotional distress. Defendant moves to dismiss the mother's claims on two grounds. First, defendant contends that both claims fail because the notice provided by plaintiffs did not satisfy the standard set forth in Va.Code § 8.01-581.2(A). Second, defendant contends that both claims are barred by the applicable statutes of limitations.

For the reasons stated here, the Court concludes that the mother's claims are barred as untimely. Given this conclusion, the Court need not reach the notice issue.

II. Analysis

Because the basis of jurisdiction in this case is diversity, Virginia law determines the applicable statutes of limitations and their scope. Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945) (applying Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)); Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949); Granahan v. Pearson, 782 F.2d 30 (4th Cir.1985). Where, as here, existing state law is not dispositive of the precise facts presented, a federal court must do its best to divine what the state's highest court would say if faced with the question. See, e.g., Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967); West v. American Telephone and Telegraph Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940).

Three Virginia statutes are relevant. First, Va.Code § 8.01-243(A) provides that every action for personal injuries, whatever the theory of recovery, shall be brought within two years after the cause of action accrues. Second, Va.Code § 8.01-243(B) provides that every action for injury to property, including actions by the parent of an infant against a tortfeasor for medical expenses of the child, shall be brought within five years after the cause of action accrues. Third, Va.Code § 8.01-229(A) establishes a special tolling provision for disabled persons, including infants and minors. The disability tolling statute provides that if a person entitled to bring any action is an infant at the time the cause of action accrues, or if an infant becomes entitled to bring an action after the cause of action accrues, the time during which the infant remains a minor shall not be counted for limitations purposes. See § 8.01-229(A)(1), (2)(a). The minor plaintiff's claim is timely because of the operation of the disability tolling provision. The question presented is whether the mother's claims are also saved by the tolling statute.

Plaintiffs concede that, unless saved by the tolling provision, the mother's action for emotional distress is barred by the plain language of Va.Code § 8.01-243(A),² and her claim for medical expenses is similarly barred by Va.Code § 8.01-243(B). Plaintiffs contend, however, that where, as here, the parent's claims are dependent on the child's malpractice claim, the Supreme Court of Virginia would construe Va.Code § 8.01-229(A) to permit the mother to benefit from the disability tolling provision applicable to her daughter.

This contention fails because it rests on an impermissible construction of the tolling statute, which provides that the "persons entitled to bring any action" pursuant to it are infants, minors, insane persons or convicts. See § 8.01-229(A). No other class of persons is mentioned. Cf. Apicella v. Valley Forge Military Academy, 630 F.Supp. 20, 23 (E.D.Pa.1985) (parents are not minors, insane, or imprisoned persons under similar Pennsylvania disability tolling statute). Moreover, Va.Code § 8.01-243(C) makes clear that the tolling statute applies in actions "brought by or on behalf of a person under a disability." The mother is not such a person; she does not fall within any of the classes of persons set forth in the statute as eligible for tolling, nor are her claims brought by or on behalf of a person under a disability. From these provisions, it is apparent that Virginia's General Assembly did not intend a parent's claims to be eligible for disability tolling even if those claims grow out of the same act of negligence that injures the parent's child.

Convincing confirmation of this conclusion is found in Va.Code § 8.01-243(B), which establishes a five-year limitations period for the action of an infant's parent or guardian to recover "against a tort-feasor for expenses of curing or attempting to cure such infant from the result of a personal injury" caused by the tortfeasor. Virginia's General Assembly surely would not have enacted a specific five-year statute of limitations for a parent's cause of action for expenses had it intended to permit the parent's action to be covered by the tolling provision. If the tolling provision encompassed the parent's action for expenses, such a specific statute of limitations provision would not have been necessary. Put another way, to construe the tolling provision to apply to parents' actions would render the five-year limitations provision essentially meaningless,³ a result surely not intended by the General Assembly. In sum, the terms of the tolling statute and the existence of specific statutes of limitations for parents' expense and personal injury actions refutes the plaintiffs' contention that tolling should be extended to the mother's claims because of their derivative relationship to the child's claim.

To avoid this result, plaintiffs advance three arguments. First, plaintiffs point out that unlike the courts of some other states, the Supreme Court of Virginia has stated on several occasions that a parent's claim for emotional distress and medical expenses stemming from an injury to a child is "wholly derivative" of the child's claim. Speet v. Bacaj, 237 Va. 290, 377 S.E.2d 397, 401 (1989) (emotional distress); Norfolk Southern Ry. v. Fincham, 213 Va. 122, 189 S.E.2d 380, 384 (1972) (medical and incidental expenses). The most recent of these pronouncements is Bulala v. Boyd, 239 Va. 218, 230, 389 S.E.2d 670 (1990). There, the issue was whether parental claims for emotional distress and expenses should be aggregated into the child's injury claim for purposes of applying Virginia's medical malpractice damage cap. The Court held that because the parent's claim is derivative of the child's, the sum of the damages awarded for both claims is limited by the cap. In other words, "the total damages recoverable for injury to the child, including derivative claims, are limited to the statutory amount." Id., 389 S.E.2d at 676. From this, plaintiffs argue that if the parents' claims are swept into the child's for purposes of a damages cap, the judicial treatment of parental claims should be the same in the statute of limitations context.

This argument is unpersuasive. To begin with, none of the cited Virginia decisions involved statutes of limitations. Speet v. Bacaj held only that where evidence failed to show that an obstetrician was guilty of negligence in the delivery of a child, it followed as a matter of law that the parents' claim for emotional distress as a consequence of the delivery could not be proved. See 377 S.E.2d at 401. Similarly, Norfolk Southern R. Co. v. Fincham held that where a jury did not properly return a verdict in the case of a boy injured by a train, it followed that no verdict was returned on the parent's cause of action for medical and incidental expenses. See 189 S.E.2d at 384. These decisions stand for the proposition that the parent's action is derivative of the child's for purposes of determining liability. They do not speak to the question whether the derivative nature of the actions has any consequences in the statute of limitations context. These decisions are therefore inapplicable here.⁴

Plaintiffs' reliance on Bulala v. Boyd is particularly misplaced. In that case the Supreme Court of Virginia explicitly sought to further the purposes of the statutory malpractice damages cap by treating the infant's and parent's claims as one. See 389 S.E.2d at 674 ("every statute is to be read so as to `promote the ability of the enactment to remedy the mischief at which it is directed.'") (quoting Board of Sup. v. King Land Corp., 238 Va. 97, 103, 380 S.E.2d 895, 897 (1989) and Natrella v. Board of Zoning Appeals, 231...