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NUNNALLY v. ARTIS, et al.


NUNNALLY v. ARTIS, et al.


September 12, 1997
Record No. 961718

VALERIE F. NUNNALLY

v.

DR. AVIS ADRIENA ARTIS, ET AL.

OPINION BY JUSTICE LEROY R. HASSELL, SR.
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE

James F. Ingram, Judge
Present: Carrico, C.J., Compton, Stephenson,[1] Lacy,
Hassell, Keenan and Koontz, JJ.


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 (1972); Griswold v. Connecticut,
381 U.S. 479, 485-86 (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 adherence to the doctrine of stare decisis
does not, however, compel us to perpetuate what we believe to be
an incorrect application of the law; neither will we be compelled
by the doctrine of stare decisis to ignore our duty
to develop the orderly evolution of the common law of this
Commonwealth. Indeed, this Court’s obligation to reexamine
critically its precedent will enhance confidence in the judiciary
and strengthen the importance of stare decisis in
our jurisprudence. Although we have only done so on rare
occasions, we have not hesitated to reexamine our precedent in
proper cases and overrule such precedent when warranted. See,
Jones v. Commonwealth, 227 Va. 425, 430, 317 S.E.2d
482, 485 (1984) (overruling Noell v. Commonwealth,
135 Va. 600, 115 S.E. 679 (1923)); Lentz v. Morris,
236 Va. 78, 81, 372 S.E.2d 608, 609 (1988) (overruling Short
v. Griffitts, 220 Va. 53, 255 S.E.2d 479 (1979) and Crabbe
v. School Board, 209 Va. 356, 164 S.E.2d 639 (1968)); Bailes
v. Sours, 231 Va. 96, 100, 340 S.E.2d 824, 827 (1986)
(overruling in part Williams v. Williams, 192 Va.
787, 792, 66 S.E.2d 500, 503 (1951) and Surber v. Bridges,
159 Va. 329, 335, 165 S.E. 508, 510 (1932)); Lichtman v. Knouf,
248 Va. 138, 139, 445 S.E.2d 114, 115 (1994) (overruling in part Haddon
v. Metropolitan Life Ins. Co., 239 Va. 397, 399, 389
S.E.2d 712, 714 (1990)); Middlekauff v. Allstate
Insurance Co.
, 247 Va. 150, 154, 439 S.E.2d 394, 397 (1994)
(overruling in part Haddon v. Metropolitan Life Ins.
Co.
, 239 Va. 397, 399, 389 S.E.2d 712, 714 (1990)).

E.

We find no merit in defendants’ argument that our holding
today constitutes a "discovery rule." We adhere to the
holding, expressed in Virginia Military Institute v. King,
217 Va. 751, 760, 232 S.E.2d 895, 900 (1977), that adoption of a
discovery rule, which causes the running of the statute of
limitations only when an injury is discovered or should have been
discovered in the exercise of reasonable diligence, must be
accomplished by the General Assembly. As we observed in Locke,
"in all of our prior decisions that reject the discovery
rule, the injury or damage existed at the time of the wrongful
act; it had merely not been discovered in a timely manner."
221 Va. at 959, 275 S.E.2d 906. Here, however, Nunnally’s injury,
the wrongful conception, did not exist at the time of the
defendants’ alleged wrongful act — the negligent sterilization
procedure. To hold otherwise would result in the inequity of
barring a plaintiff’s claim for wrongful conception before she
conceived. Hence, we are of opinion that our decision today is
entirely consistent with our holding in Locke and the
cases discussed therein.

F.

Defendants, relying upon Starnes v. Cayouette,
244 Va. 202, 419 S.E.2d 669 (1992), argue that the statute of
limitations for Ms. Nunnally’s claim expired in 1991 in
accordance with the law existing at that time and, therefore,
cannot be revived now. Defendants’ reliance is misplaced.

In Starnes, we awarded a plaintiff, an adult survivor
of childhood sexual abuse, an appeal to consider whether, as the
trial court ruled, the expiration of the statute of limitations
on her personal injury cause of action afforded the defendant a
property right protected by constitutional due process
guarantees. Marjorie Starnes, who was born in 1964, alleged in
her motion for judgment that she was subjected to multiple acts
of sexual abuse by the defendant, Robert L. Cayouette, from the
age of 5 until she became 14 years old. The last such act of
abuse occurred in 1978.

Starnes became 18 years of age in 1982 and 20 years of age in
1984. She filed her action against Cayouette in July 1991. He
filed a plea invoking Code ? 8.01-243,
which imposed a time limitation of two years on personal injury
actions. In response, she argued that her action was timely filed
under Acts 1991, c. 674,[2]
which essentially revived a victim’s cause of action for certain
torts related to sexual abuse even though the statute of
limitations had expired.

In Starnes, we observed that the two-year statute of
limitations in Code ? 8.01-243
was tolled until the plaintiff attained her majority in 1982. We
held that the statute of limitations expired on her claims in
1984, and her action was barred because she did not file suit
until July 1991. Additionally, we held that the defendant had a
vested right to a defense of the statute of limitations once the
statute of limitations had run and that the General Assembly
could not, consistent with the due process guarantees of the
Constitution of Virginia, art. I, ? 11, divest the
defendant of that property right. Starnes, 244 Va. at 207,
419 S.E.2d at 672.

Here, however, the defendants, Artis and Danville Memorial
Hospital, do not have vested property rights in the statute of
limitations because, as we have already demonstrated, Nunnally’s
cause of action did not accrue until her child was conceived.
Unlike the plaintiff in Starnes, the statute of
limitations governing Nunnally’s action had not expired. Thus,
the defendants, Artis and Danville Memorial Hospital, acquired no
vested property rights in an expired statute of limitations.
Additionally, unlike the facts in Starnes, neither the
General Assembly nor this Court has revived a plaintiff’s action
that had expired.

III.

In view of the foregoing, we will reverse the judgment of the
trial court and remand this case for further proceedings
consistent with this opinion.

Reversed and remanded.

JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO and JUSTICE
STEPHENSON join, dissenting.

The statement this Court made 75 years ago regarding
Virginia’s adherence to the doctrine of stare decisis
is apropos in the present situation. "[T]he construction of
statutes ought not to vary with every change in the personnel of
the appellate court." Kelly v. Trehy, 133 Va.
160, 169, 112 S.E. 757, 760 (1922).

It is obvious that this Court, as presently constituted, would
not, as an original proposition, have construed the applicable
statute of limitations as it was construed in Scarpa v. Melzig,
237 Va. 509, 379 S.E.2d 307 (1989). Nevertheless, the 1989
construction was dictated by controlling precedent, was reached
"after full deliberation upon the issue," was made by a
clear majority of the Court, and was not the product "of
flagrant error or mistake." Selected Risks Ins. Co.
v. Dean, 233 Va. 260, 265, 355 S.E.2d 579, 581 (1987). The
1989 construction should be followed now.

Moreover, Scarpa has been cited with approval by this
Court in five opinions, which were unanimous on the issue, during
the period June 1992 to April of this year. See Starnes v.
Cayouette, 244 Va. 202, 206, 419 S.E.2d 669, 671 (1992); Howard
v. The Alexandria Hospital, 245 Va. 346, 350, 429 S.E.2d
22, 24 (1993); Renner v. Stafford, 245 Va. 351,
355, 429 S.E.2d 218, 221 (1993); Lo v. Burke, 249
Va. 311, 317, 455 S.E.2d 9, 13 (1995); and St. George v. Pariser,
253 Va. 329, 332, 484 S.E.2d 888, 890 (1997).

Unfortunately, the present majority, merely acknowledging the
existence of stare decisis and then promptly
discarding the doctrine, has chosen to inject instability into
the law of the Commonwealth. I believe Scarpa should be
controlling here, and thus would affirm the judgment of the trial
court.

 

 

 

FOOTNOTES:

[1] Justice Stephenson participated
in the hearing and decision of this case prior to the effective
date of his retirement on July 1, 1997.

[2] Clauses one and two of that Act
provided:

"In actions for injury to the person, whatever the theory
of recovery, resulting from sexual abuse occurring during the
infancy or incompetency of the person, [the cause of action shall
be deemed to accrue] when the fact of the injury and its causal
connection to the sexual abuse is first communicated to the
person by a licensed physician, psychologist, or clinical
psychologist. However, no such action may be brought more than
ten years after the later of (i) the last act by the same
perpetrator which was part of a common scheme or plan of abuse or
(ii) removal of the disability of infancy or incompetency.

As used in this subdivision, ‘sexual abuse’ means sexual abuse
as defined in subdivision 6 of ? 18.2-67.10
and acts constituting rape, sodomy, inanimate object sexual
penetration or sexual battery as defined in Article 7 (? 18.2-61 et seq.)
of Chapter 4 of Title 18.2.

[T]he provisions of subdivision 6 of ? 8.01-249 shall apply
to all actions filed on or after July 1, 1991, without regard to
when the act upon which the claim is based occurred provided that
no such claim which accrued prior to July 1, 1991, shall be
barred by application of those provisions if it is filed within
one year of the effective date of this act."

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