Turner v. Sheldon D. Wexler, D.P.M., P.C.

• Decision Date: 05 June 1992
• Docket Number: No. 911230,911230
• Citation: 418 S.E.2d 886,244 Va. 124
• Parties: Linda M. TURNER v. SHELDON D. WEXLER, D.P.M., P.C. Record
• Court: Virginia Supreme Court

Page 886

418 S.E.2d 886

244 Va. 124

Linda M. TURNER v. SHELDON D. WEXLER, D.P.M., P.C.

Record No. 911230.

Supreme Court of Virginia.

June 5, 1992.

Allen T. Eaton (Jennifer E. Loud, Eaton, McClellan & Allen, on brief), Washington, D.C., for appellant.

William E. Artz (Dominique D. Michel, on brief), Arlington, for appellee.

Present: All the Justices.

HASSELL, Justice.

The primary issue we consider in this appeal is whether the filing of a notice of claim for medical malpractice, as defined by former Code § 8.01-581.1, against a professional corporation tolled the applicable statute of limitations.

Linda M. Turner filed the notice, dated May 13, 1988, against "Sheldon D. Wexler, D.P.M., P.C." The notice of claim alleged that Dr. Sheldon D. Wexler, a podiatrist, committed nine separate negligent acts or omissions during his care and treatment of her. Neither Turner nor "Sheldon D. Wexler, D.P.M., P.C." requested a review by a medical malpractice review panel.

Turner filed her motion for judgment against "Sheldon D. Wexler, D.P.M., P.C." on September 9, 1988. Turner alleged that "Sheldon D. Wexler, D.P.M., P.C." committed certain acts constituting medical malpractice on various occasions between May 15, 1986 and June 13, 1986. "Sheldon D. Wexler, D.P.M., P.C." filed a motion to dismiss Turner's motion for judgment on the basis that the case was barred by the two-year statute of limitations. "Sheldon D. Wexler, D.P.M., P.C." argued that it was not a health care provider as defined by former Code § 8.01-581.1 and, therefore, that Turner's notice of claim for medical malpractice did not toll the two-year statute of limitations, which expired in June 1988, approximately eight weeks before her motion for judgment was filed.

One of the judges of the court below heard and denied a motion to dismiss. An order reflecting this ruling was never entered. On the morning before a scheduled trial on the merits, counsel for "Sheldon D. Wexler, D.P.M., P.C." renewed the motion to dismiss. A different judge entered final judgment granting the motion to dismiss. We awarded Turner an appeal.

Turner argues that the trial court erred in granting the motion to dismiss. She contends that Sheldon D. Wexler, individually, and his professional corporation, "Sheldon D. Wexler, D.P.M., P.C.," were so intertwined that the notice to the professional corporation constituted notice to Wexler and that "the motion for judgment clearly identifies Dr. Wexler as an individual doctor of podiatry, not a corporate entity." Therefore, Turner asserts, the professional corporation should be deemed a "health care provider" as defined in former Code § 8.01-581.1. We disagree.

A litigant who asserts a claim against a "health care provider" must comply with the provisions of the Virginia Medical Malpractice Act, Code §§ 8.01-581.1, et seq. "No action may be brought" against a "health care provider" unless the claimant notifies the "health care provider" by filing a written notice of claim for medical malpractice. Code § 8.01-581.2. Once the notice of claim is properly given, the applicable statute of limitations is tolled "for and including a period of 120 days from the date such statute of limitations would otherwise run, or 60 days following issuance of any opinion by the medical review panel, whichever is later." Former Code § 8.01-581.9.

Even though former Code § 8.01-581.1 was amended by the General Assembly in 1989 to include professional corporations and certain other legal entities within the definition of "health care provider," we must construe this statute as it existed when Turner's cause of action arose. Former Code § 8.01-581.1 stated, in part:

"Health care provider" means a person, corporation, facility or institution licensed by this Commonwealth to provide health care or professional services as a physician or hospital, dentist, pharmacist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, physical therapy assistant, clinical psychologist or a nursing home as defined in § 54-900 of the Code of Virginia....

(Emphasis added).

We have repeatedly stated the principles of statutory construction that we apply when a statute, such as former Code § 8.01-581.1, is clear and unambiguous.

While in the construction of statutes the constant endeavor of the courts is to ascertain and give effect to the intention of the legislature, that intention must be gathered from the words used, unless a literal construction would involve a manifest absurdity. Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed.

Barr v. Town & Country Properties, 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)). See also Grillo v. Montebello Condominium Unit Owners Association, 243 Va. 475, 477,...