Bulala v. Boyd

JUSTICE RUSSELL,

with whom SENIOR JUSTICE POFF joins, dissenting in part.

I cannot agree with the reasoning contained in Parts V and VI of the Court’s opinion. The majority impliedly recognizes that in order to become liable for personal injuries to another, a defendant must have caused injuries to a “person.” Further, to come within the Medical Malpractice Act, a health care provider’s negligence must have caused “injury to, or death of, a patient.” Code § 8.01-581.15 (emphasis added). Therefore, in order to arrive at its conclusion, the majority must find that Veronica Boyd was both a “person” and a “patient” before she was born.

That is a particularly difficult feat on the facts of this case. The evidence demonstrated that all of Veronica’s injuries resulted from Dr. Bulala’s negligence during the time preceding the child’s delivery. He is not charged with any acts or omissions which caused injury to the child either during the actual delivery, or thereafter. *236 Veronica was born “blue and limp,” and suffering from severe asphyxiation as a result of oxygen deprivation before delivery.

In Lawrence v. Craven Tire Co., 210 Va. 138, 140 , 169 S.E.2d 440, 441 (1969), we said: “We are unwilling to hold that a child en ventre sa mere can maintain a common law action for personal injuries.” We quoted with approval foreign authority which said: “We adhere to the rule that an unborn child is a part of the mother until birth and, as such, has no juridical existence.” Id. at 142 , 169 S.E.2d at 442 (emphasis added) (citation omitted).

In Modaber v. Kelley, 232 Va. 60 , 348 S.E.2d 233 (1986), we were even more explicit. “In Virginia, the law is established that an unborn child is not a ‘person’ within the meaning of our wrongful death statute.” Id. at 66 , 348 S.E.2d at 236 . “Furthermore, we have adopted the view in tort litigation that an unborn child is a part of the mother until birth.” (Emphasis added.) Id., 348 S.E.2d at 236-37 .

In light of the majority’s opinion, it might be supposed that we had abandoned that view, were it not for Kalafut v. Gruver, 239 Va. 278 , 389 S.E.2d 681 (decided today). There, we adopted the rule that a child' born alive may maintain an action for injuries sustained in útero, but we carefully pointed out that “the rule we adopt today has no impact on the precedential value of Lawrence or Modaber.” Id. at 284 , 389 S.E.2d at 684 . Further, we reiterated our view that “a fetus is not a ‘person.’” Id. at 281 , 389 S.E.2d at 685 .

Thus, if a child born alive has a cause of action for personal injuries sustained in útero, of what does its cause of action consist? In Kalafut , we were not required to answer that question, but we must do so here in order to determine the effect of the medical malpractice cap. Because, as the majority acknowledges in Part V(A), the child had no existence as a “person” when the injury occurred, the answer can only be that the child, after birth, has a cause of action for the injury sustained by the mother’s body, of which it was a part, resulting from the defendant’s negligence.

Further, the mother was the obstetrician’s only “patient” at the time of his malpractice, because the Act defines a “patient” as a “natural person.” Code § 8.01-581.1(3). At the time the tort was committed, Helen Boyd was the only “natural person” under the care and treatment of Dr. Búlala. It follows that although the child, after her birth, had a right to maintain an action in her own *237 name, Kalafut, 239 Va. at 286 , 389 S.E.2d at 685 , the child’s cause of action was entirely derivative of her mother’s claim.

The father’s claim was equally derivative for the same reason. In the absence of Dr. Bulala’s acts of malpractice committed against his patient, Helen Boyd, neither Veronica nor her father, Roger Boyd, would have had a cause of action.

The pertinent statutory language is “[i]n any verdict returned ... in an action for malpractice ... the total amount recoverable for any injury to, or death of, a patient shall not exceed seven hundred fifty thousand dollars.” Code § 8.01-581.15 (1977 Repl. Vol.). All elements of damage claimed by Veronica, Roger, and Helen Boyd, individually and jointly, flow from a single “injury to . . . a patient,” Dr. Bulala’s neglect of Helen Boyd. See Code § 8.01-581.15; Etheridge v. Medical Center Hospitals, 237 Va. 87, 105 , 376 S.E.2d 525, 535 (1989). Therefore, in my view, Code § 8.01-581.15 limits the “total recovery” to $750,000. Consequently, I disagree with the apportionment formula fashioned in Part VI of the majority’s opinion.