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Lopez-Rosario v. Habib

Supreme Court of Virginia

April 14, 2016

KENIA L. LOPEZ-ROSARIO,
v.
CHRISTINE HABIB, ET AL

          FROM THE CIRCUIT COURT OF FAIRFAX COUNTY. John M. Tran, Judge.

         For LOPEZ-ROSARIO, KENIA L., Appellant: KAMEROW, JACOB ALVIN, (ESQ.).

         For HABIB, CHRISTINE, VIRGINIA SURGERY ASSOCIATES, P.C., Appellee: WALKINSHAW, PAUL THOMAS, (ESQ.), GLAJCH, JESSICA ASHLEY, (ESQ.), MITCHELL, BYRON JAMES, (ESQ.).

         PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Lacy, S.J.

          OPINION

         S. BERNARD GOODWYN, JUSTICE.

         In this 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 appointed.

         Background

         Kenia 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.

         A 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."

         The 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 Center." [1]

         Subsequently, 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.

         The 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 lawsuits.

         The 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 ...


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