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WAZIRI, et al.

March 3, 2000

Record No. 990376





M. Langhorne Keith, Judge

Present: Carrico, C.J., Compton[1] , Lacy, Hassell, Keenan, and
Kinser, JJ., and Poff, Senior Justice


In this appeal from a judgment entered in a
medical malpractice, wrongful death action, the appellant, Jan
Paul Fruiterman, M.D. and Associates, P.C., a professional
corporation (the P.C.), contends that the trial court erred in
denying coverage of the Virginia Birth-Related Neurological
Injury Compensation Act, Code ? 38.2-5000 et seq.
(the Compensation Act), to professional corporations.

Ahmad and Hassini Waziri, individually and as
personal representatives of the estate of their son, Syawach,
filed an amended motion for judgment entitled "Medical
Malpractice-Wrongful Death" against Dr. Fruiterman,
individually, and against the P.C. Applying the rights and
remedies defined in the Compensation Act, the trial court
sustained Dr. Fruiterman’s demurrer. The court denied the
co-defendant’s demurrer on the ground that the rights and
remedies of the Compensation Act do not apply to professional
corporations. The jury returned a verdict against the P.C. for
$750,000 which the court reduced by remittitur to $730,000.

The sufficiency of the evidence of medical
malpractice and proximate cause are not in issue on appeal.
Expert witnesses called by the plaintiffs testified that Dr.
Fruiterman’s performance of the fetal delivery by Caesarian
section was conducted too late to avoid severe brain damage. In
response to medical opinion, the parents agreed to suspend life
support systems, and Syawach, their first-born child, died eight
days after birth.

The General Assembly enacted Chapter 50 of the
Code of Virginia, the Compensation Act, in 1987. That act
"established the Virginia Birth-Related Neurological Injury
Compensation Program." ? 38.2-5002(A). The act
provided that, subject to two exceptions
[2], "the rights
and remedies herein granted to an infant on account of a
birth-related neurological injury shall exclude all other rights
and remedies of such infant, his personal representative,
parents, dependents or next of kin, at common law or otherwise
arising out of or related to a medical malpractice claim with
respect to such injury." Id.

The Compensation Act established an
"Injury Compensation Fund to finance the . . .
Compensation Program." ? 38.2-5015. To capitalize that
fund, the Compensation Act provided that "[a] physician who otherwise qualifies . . . may become
a participating physician in the Program . . . by
paying an annual participating physician assessment to the
Program in the amount of $5,000", ? 38.2-5020(A), and
that "a participating hospital with a residency training
program . . . may pay an annual participating physician
assessment to the Program for residency positions,"
? 38.2-5020(B). To administer the Compensation Program,
"[t]he Virginia Workers’ Compensation Commission [was] authorized to hear and pass upon all claims filed pursuant to
this chapter", ? 38.2-5003, and to "make an award
providing compensation for . . . items relative to
. . . [a covered] injury," ? 38.2-5009.


The principal issue raised by the assignments
of error is whether a professional corporation is entitled to the
rights and benefits of the Compensation Act. The trial court
ruled that it was not. The P.C. contends that the trial court
misconstrued legislative intent. We disagree with the P.C.

On brief, the P.C. acknowledges that the
Compensation Act was intended to serve several interrelated

"Enacted in 1987 in direct response to the
grossly lessening availability of medical malpractice insurance
for obstetricians in the Commonwealth of Virginia, the
Compensation Act was intended to assure affordable malpractice
insurance and therefore a sufficient pool of obstetricians
practicing throughout the Commonwealth."

The legislative intent is reflected in the
legislative history recorded by legislators in the reports of
subcommittees of the two Houses of the General Assembly. See
Senate Document No. 11 (1987); House Joint Resolution No. 297
(1989); House Document No. 63 (1990); House Joint Resolution No.
641 (1997). See also King v. Neurological Injury
Comp. Program
, 242 Va. 404, 409-10, 410 S.E.2d 656, 660
(1991) (rejecting constitutional challenge to Compensation Act).

As we have said, the Compensation Act provides
that "the rights and remedies herein granted to an infant
. . . shall exclude all other rights and remedies of
such infant, his personal representative, parents, dependents or
next of kin, at common law . . . ."
? 38.2-5002(B). "Statutes in derogation of the common
law are to be strictly construed and not to be enlarged in their
operation by construction beyond their express terms." Schwartz
v. Brownlee
, 253 Va. 159, 166, 482 S.E.2d 827, 831 (1997)
(citation omitted).

The Compensation Act begins with expressly
restrictive definitions. A "[p]articipating physician"
is "a physician licensed in Virginia to practice medicine,
who practices obstetrics or performs obstetrical services",
? 38.2-5001, and "a licensed nurse-midwife who
performs obstetrical services", id., and pays
"an annual participating physician assessment to the
Program", ? 38.2-5020(A).

"’Participating Hospital’ means a hospital
. . . which . . . had in force an agreement
with the Commissioner of Health . . . to participate in
. . . a program to provide obstetrical care to patients
eligible for Medical Assistance Services and to patients who are
indigent, and . . . had in force an agreement
. . . whereby the hospital agreed to submit to review
of its obstetrical service . . . and
 . . . had paid the participating assessment
pursuant to ? 38.2-5020 . . . ."

"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 and
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)).

Clearly, the General Assembly did not intend to
immunize all health-care providers from tort liability for
birth-related neurological injury caused by medical malpractice.
The legislature expressly identified those entitled to that
immunity as "participating physicians" and
"participating hospitals"; then expressly defined
"physicians" as obstetricians and nurse-midwives who
perform obstetrical services; and then expressly specified that
the term "participating" includes payment of an annual
assessment by qualified physicians and hospitals to finance the
costs of the benefits provided by the Compensation Program. No
such assessment was imposed upon a professional corporation.

In summary, the Compensation Act expressly
limits those entitled to its rights and benefits to selected
health-care providers and expressly excludes "a
nonparticipating physician or hospital."
? 38.2-5002(D). The legislative omission of other
health-care providers serving during the course of child birth,
such as pediatricians, radiologists, and medical partnerships,
confirms our conclusion that participating physicians and
hospitals were intended to be the only health-care providers
afforded immunity from civil liability by the Compensation Act. A
professional corporation, the employer of a participating

physician, is conspicuous by its absence.


In support of a second assignment of error, the
P.C. contends that "[t]he award for non-economic loss bears
no reasonable relation to the evidence and therefore is
excessive." The P.C. is referring to the jury’s award of
$655,973.46, a sum in addition to its award for expenses incurred
in "the care, treatment and hospitalization of the

The wrongful death statute, ? 8.01-52,
provides that "[t]he jury or the court . . . may
award such damages as to it may seem fair and just" and that
"[t]he verdict or judgment . . . shall include,
but may not be limited to, damages for . . . [s]orrow,
mental anguish, and solace . . . ."

We find the evidence of sorrow, mental anguish,
and solace contained in this record fully sufficient to support
the jury’s award, and finding no merit in the assignments of
error, we will affirm the judgment entered by the trial court.




[1] Justice Compton participated in
the hearing and decision of this case prior to the effective date
of his retirement on February 2, 2000.

[2] The Compensation Act expressly
provides that "a civil
action . . . shall not be foreclosed against
a nonparticipating physician or hospital",
? 38.2-5002(D), or "against a physician or hospital
where there is clear and convincing evidence that such physician
or hospital intentionally or willfully caused or intended to
cause a birth-related neurological injury."
? 38.2-5002(C).