KENIA L. LOPEZ-ROSARIO,
CHRISTINE HABIB, ET AL
THE CIRCUIT COURT OF FAIRFAX COUNTY. John M. Tran, Judge.
LOPEZ-ROSARIO, KENIA L., Appellant: KAMEROW, JACOB ALVIN,
HABIB, CHRISTINE, VIRGINIA SURGERY ASSOCIATES, P.C.,
Appellee: WALKINSHAW, PAUL THOMAS, (ESQ.), GLAJCH, JESSICA
ASHLEY, (ESQ.), MITCHELL, BYRON JAMES, (ESQ.).
Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey,
JJ., and Lacy, S.J.
BERNARD GOODWYN, JUSTICE.
appeal, we consider whether the circuit court erred in
dismissing a suit for medical malpractice on the basis that
the plaintiff filed the lawsuit in her own name, although
co-guardians, responsible for her personal affairs, had been
L. Lopez-Rosario (Lopez-Rosario) is an adult with several
physical and cognitive disabilities. On May 13, 2010,
Lopez-Rosario's parents, Kenia I.R. Lopez and Israel
Lopez (collectively, parents) petitioned the Circuit Court of
Loudoun County to appoint them as Lopez-Rosario's
co-guardians. The petition stated that Lopez-Rosario "
is an incapacitated individual as defined by Virginia Code
Ann. § 37.2-1000 and Article II Section 1 of the
Constitution of Virginia." It added that Lopez-Rosario
requires extensive care on a daily basis and is cared for by
her mother full time.
psychologist's report filed with the petition stated,
" Kenia functions at about the level of a six year old
child. Estimated intellectual functioning is in the range of
mild mental retardation. She cannot understand spoken speech,
but can understand and communicate in ASL [(American Sign
Language)], though at the level of a young child." The
report stated that Lopez-Rosario's " [cognitive]
condition is permanent and expected to remain stable."
circuit court held, and its order stated, that
Lopez-Rosario's " best interests shall be met by
appointing co-guardians for her personal decisions, including
decisions relating to her health, safety, treatment and
care." The circuit court deemed that she was "
incapacitated and unable to care for her person and
estate" and that her " incapacity is expected to be
permanent." The court granted guardianship to the
parents and in its order explained that " [t]he
co-guardians shall be responsible for the personal affairs of
Kenia L. Lopez-Rosario. The co-guardians shall have authority
pursuant to § 37.2-1020 of the Code to make decisions
regarding the support care, health, safety, habilitation,
therapeutic treatment and residence of Kenia L.
Lopez-Rosario." Further, the order stated, " all
costs and fees incurred in connection with this proceeding
are to be paid by Children's National Medical
Lopez-Rosario had surgery to remove her gallbladder. The
surgeon, Christine Habib, M.D. (Dr. Habib), allegedly made an
error that injured Lopez-Rosario. On March 7, 2014,
Lopez-Rosario filed suit against Dr. Habib and her employer,
Virginia Surgery Associates (collectively, defendants),
alleging that Dr. Habib's negligence caused her injury.
Lopez-Rosario filed suit in her own name and without
indication that she was under a guardianship.
defendants filed a plea in bar/motion to dismiss, arguing
that because her parents had been appointed as her guardians,
Lopez-Rosario could not file suit under her own name.
Lopez-Rosario opposed the plea in bar/motion to dismiss,
arguing that the guardianship was limited to medical
decisions and did not include matters such as filing
court granted the defendants' plea in bar/motion to
dismiss because it deemed that Lopez-Rosario was " under
a guardianship and does not have standing to file a ...