WOMEN'S HEALTHCARE ASSOCIATES, INC.
VALERIE MUCCI AND VIRGINIA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PROGRAM; ANGELA C. BESS, M.D.
VALERIE MUCCI AND VIRGINIA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PROGRAM; LOUDOUN HOSPITAL CENTER, d/b/a INOVA LOUDOUN HOSPITAL, AZAM DABIRZADEH, R.N., AND ALYSIA WARFIELD, R.N.
VALERIE MUCCI AND VIRGINIA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PROGRAM
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION .
Paul T. Walkinshaw (Glen H. Sturtevant; Rawls McNelis Mitchell, on briefs), for appellant Women's Healthcare Associates, Inc.
Susan L. Mitchell (Altman, Spence, Mitchell & Brown, P.C., on brief), for appellant Angela C. Bess, M.D.
William L. Carey (Rodney G. Leffler; Alexa K. Mosley; Leffler & Mosley, on brief), for appellants Loudoun Hospital Center d/b/a Inova Loudoun Hospital, Azam Dabirzadeh, R.N., and Alysia Warfield, R.N.
Laurie A. Amell (Shulman, Rogers, Gandal, Pordy & Ecker, on briefs), for appellee Valerie Mucci.
Carla R. Collins, Assistant Attorney General-III (Mark R. Herring, Attorney General; Rhodes B. Ritenour, Deputy Attorney General; Catherine Crooks Hill, Senior Assistant Attorney General, on briefs), for appellee Virginia Birth-Related Neurological Injury Compensation Program.
Present: Judges Humphreys, Beales
[64 Va.App. 424] ROBERT J. HUMPHREYS,
Appellants Women's Healthcare Associates, Inc. (" WHA" ), Angela C. Bess, M.D. (" Dr. Bess" ), and Loudoun Hospital Center d/b/a Inova Loudoun Hospital, Alysia M. Warfield, R.N., and Azam Dabirzadeh, R.N. (" Inova" ), (collectively " appellants" ) appeal the decision of the Virginia Workers' Compensation Commission (the " commission" ) transferring Valerie Mucci's (" Mucci" ) personal injury claims to the Circuit Court of Loudoun County (the " circuit court" ). The commission affirmed the deputy commissioner's finding that Mucci's claimed injuries were separate and distinct from her infant son's neurological injury, and thus did not fall under the exclusive remedy of the Virginia Birth-Related Neurological Injury Compensation Act of 1987 (the " Act" ). For the following reasons, this Court affirms the commission's decision to transfer Mucci's personal injury claims to the circuit court.
Enacted by the General Assembly in 1987, the Act provides claimants with a no-fault remedy for compensation for qualified injuries. See Code § 38.2-5002. The Act also affords potential tort defendants (at least those who choose to participate in the Birth-Related Neurological Injury Compensation Fund under Code § 38.2-5015) with an absolute immunity to civil malpractice liability for these injuries. See Code § 38.2-5002(B). By delivering an infant in a participating hospital and/or through a participating physician, the infant's family [64 Va.App. 425] automatically waives the right to bring a medical malpractice lawsuit against the participating physician or hospital if the infant incurs a birth injury that meets the definition in the Code. Wolfe v. Va. Birth-Related Neurological Injury Comp. Program, 40 Va.App. 565, 584, 580 S.E.2d 467, 476 (2003).
Mucci went to Loudoun Hospital Center on February 22, 2006 for a scheduled labor induction. Mucci was approximately forty weeks pregnant and was considered " postdate." Cervidil was placed to ripen Mucci's cervix followed by a Pitocin infusion to initiate
uterine contractions. Mucci was monitored by Dr. Bess and other healthcare providers at Inova throughout the labor process. As labor progressed, the monitoring machines began to show signs of fetal distress, including decelerations in the fetal heart rate. As a result, Dr. Bess attempted a vacuum extraction delivery, which proved unsuccessful. Dr. Bess then performed a cesarean section to deliver Mucci's infant son at 6:56 p.m. on February 23, 2006. Mucci's son was born with neurological injuries, which all parties agree qualify as birth-related neurological injuries under the Act. The commission admitted Mucci's son into the Virginia Birth-Related Injury Compensation Program (the " Program" ) on May 1, 2012.
In addition to her son's injuries, Mucci claims that she suffered injuries during the course of the labor and delivery of her son. In her complaint and subsequent bill of particulars in the circuit court, Mucci stated that her uterine tissue was injured as a result of Dr. Bess's failure to " perform the cesarean section that was indicated" and by her decision to " continue Pitocin induction for an extended period of time instead of discontinuing it." Mucci also claimed that these medical decisions also caused uterine hyperstimulation and prolonged labor and resulted in worry and anxiety for Mucci's own well-being. Inova filed a motion to refer the matter to the commission pursuant to the Act, which the circuit court granted on May 25, 2010.
In a February 16, 2011 pleading to the commission, Mucci further explained that her claim was for " physical injuries to [64 Va.App. 426] herself--a damaged uterus, physical pain, and permanent scarring and disfigurement of her uterus, which occurred during the course of labor and delivery" and emotional distress " related to the permanent injury of her uterus and the surrounding tissues, rather than emotional distress related to the injuries to her son." On the morning of the April 10, 2012 evidentiary hearing to determine jurisdiction of Mucci's claims, the parties exchanged expert designations. Appellants objected to the deputy commissioner's consideration of Mucci's expert opinions, arguing that the opinions were materially distinct from the claims pled in Mucci's complaint and bill of particulars in the circuit court. Mucci presented two expert reports from Dr. Richard Stokes and Dr. Douglas R. Phillips.
According to Dr. Stokes, Mucci experienced " prolonged hyperstimulation and tetanic contractions" which " caused increased stretching of the lower uterine segment and disruption of connective tissue resulting in damage to the uterine tissue." Dr. Stokes concluded that Mucci suffered " severe pain and suffering, as well as substantial concern for her own medical well-being" as a result of the prolonged hyperstimulation and tetanic contractions. Dr. Phillips's report summarized Mucci's injuries:
Ms. Mucci suffered injury to her uterine tissue, endured many hours of tetanic contractions, and ultimately had to undergo an emergency cesarean section delivery which resulted in permanent disfigurement and scarring to her uterus. The prolonged hyperstimulation resulted in uterine hypoperfusion and tissue damage and caused Ms. Mucci to suffer significant pain and suffering. Furthermore, Ms. Mucci became a high risk patient for subsequent pregnancies and required that she undergo a repeat cesarean section procedure for the delivery of her second child on February 19, 2009 at George Washington University Hospital.
Appellants relied on the expert opinion of Dr. Norman Armstrong, who stated that Mucci's medical records indicate that Mucci's cesarean section in 2006 was " a direct result of the nonreassuring fetal heart rate and signs of fetal distress. [64 Va.App. 427] The C-section was unrelated to the mother's individual status at the time. It was performed in a standard manner and its sequelae was typical of any C-section." Ultimately, the deputy commissioner overruled appellants' objection, allowing Mucci's expert reports to the extent they addressed whether Mucci's injuries were derivative of the infant's injuries. The deputy commissioner found that Mucci's claimed injuries were separate and distinct from her son's ...