JEFF CHARLES HAMMER, M.D., LINDA JOY MATHISON-EZIEME, M.D. AND VIRGINIA CENTER FOR WOMEN, INC. d/b/a VIRGINIA CENTER FOR WOMEN
D.S., CRYSTAL SENECAL, JAMIE SENECAL, AND THE VIRGINIA BIRTH-RELATED NEUROLOGICAL INJURY FUND
THE VIRGINIA WORKERS' COMPENSATION COMMISSION
R. Davis (Mary Elizabeth Sherwin; Kaufman & Canoles,
P.C., on briefs), for appellants.
R. Collins, Senior Assistant Attorney General; Judith M.
Cofield (Mark R. Herring, Attorney General; Rhodes B.
Ritenour, Deputy Attorney General; Nicholas F. Simopoulos,
Senior Assistant Attorney General, on brief), for appellees.
Present: Judges Humphreys, Beales and O'Brien Argued at
MARY GRACE O'BRIEN
("claimant" or "the child") and Crystal
Senecal filed a medical malpractice suit against the
physicians who provided prenatal care to Ms. Senecal, the
child's mother. In defense of the claim, the physicians
("appellants") asserted statutory tort immunity
under the Virginia Birth-Related Neurological Injury
Compensation Act, Code §§ 38.2-5000 to -5021. At
appellants' request, the circuit court transferred the
case to the Workers' Compensation Commission ("the
Commission") to determine whether claimant was required
to accept compensation under the Act instead of proceeding
with his lawsuit. Following a hearing, a deputy commissioner
found that the Act did not apply and appellants were not
entitled to statutory immunity. The full Commission affirmed.
Appellants assert the following assignments of error on
1. The Commission erred in interpreting and applying Virginia
Code § 38.2-5001, specifically the time period during
which a birth-related neurological injury may occur, for
purposes of deciding applicability of the Act.
2. The Commission erred in finding that [claimant and the
Virginia Birth-Related Neurological Injury Fund] met their
burden of proof and production with sufficient credible
evidence to rebut the presumption set forth in Virginia Code
I. Legal Background
case involves the application of the Virginia Birth-Related
Neurological Injury Compensation Act ("the Act").
"One of only two such statutes in the nation, the . . .
Act provides claimants with a no-fault remedy for
compensation for qualified injuries." Cent. Va.
Obstetrics & Gynecology Assocs., P.C. v. Whitfield,
42 Va.App. 264, 271, 590 S.E.2d 631, 635 (2004). "The
Act also affords potential tort defendants . . . an absolute
immunity to civil malpractice liability for these
injuries" if they contribute to a compensation fund.
Id. A claimant may seek application of the Act to
his claim to obtain benefits from the fund. Or, "in
cases where litigation may be more promising, a claimant may
seek to defeat the application of the Act to his
claim . . . where the tort defendants in a pending
malpractice lawsuit seek the application of the Act to the
claim over the objection of the claimant." Id.
at 271-72, 590 S.E.2d at 635. Here, appellants sought to have
the child's claim resolved pursuant to the Act, rather
than in a medical malpractice suit.
Act to apply, the infant must have sustained a
"birth-related neurological injury" as defined in
Code § 38.2-5001. We have held that the definition of a
"birth-related neurological injury" contains four
1. The infant sustained "an injury to the brain or
spinal cord" that was "caused by deprivation of
oxygen or mechanical injury."
2. The injury occurred "in the course of labor, delivery
or resuscitation necessitated by a deprivation of oxygen or
mechanical injury that occurred in the course of labor or
delivery, in a hospital."
3. The injury rendered the infant "permanently
motorically disabled and (i) developmentally disabled or (ii)
for infants sufficiently developed to be cognitively
evaluated, cognitively disabled."
4. Such disability caused "the infant to be permanently
in need of assistance in all activities of daily
Va. Obstetrics, 42 Va.App. at 272, 590 S.E.2d at 635-36
(quoting Code § 38.2-5001). If the party seeking
application of the Act proves that the injury falls within
this definition, then the Act applies. Id. at 273,
590 S.E.2d at 636.
"[t]he legislature, recognizing the difficulty in
proving when, but not whether, such an injury was sustained,
enacted a presumption to assist potential claimants in
obtaining benefits." Wolfe v. Va. Birth-Related
Neurological Injury Comp. Program, 40 Va.App. 565, 578,
580 S.E.2d 467, 473 (2003) (citing Code §
38.2-5008(A)(1)). A rebuttable presumption of a birth-related
neurological injury applies when the proponent (in this case,
appellants) proves elements one and three listed above.
Cent. Va. Obstetrics, 42 Va.App. at 273, 590 S.E.2d
at 636. "When these two predicate facts are proved, the
factfinder may presume that elements two and four of the
statutory definition are also met." Id.
the presumption applies, the burden of proof shifts to the
party opposing the presumption (in this case, claimant and
the Virginia Birth-Related Neurological Injury Fund) to
disprove element two or four, and thereby establish
"that the injuries alleged are not birth-related
neurological injuries within the meaning of the
chapter." Wolfe, 40 Va.App. at 578, 580 S.E.2d
at 474 (quoting Code § 38.2-5008(A)(1)(a)).
the request of a party who is a participating hospital or
physician, Code § 8.01-273.1 directs a trial court to
refer the case to the Commission to determine "whether
the cause of action satisfies the requirements of the . . .
Act." The claim "is reviewed by a panel of three
qualified and impartial physicians drawn from the fields of
obstetrics, pediatrics, pediatric neurology, neonatology,
physical medicine and rehabilitation, or any other specialty
particularly appropriate to the facts of a particular
case." Code § 38.2-5008(B). The panel prepares a
report, and in its conclusion determines whether the
infant's injury "does or does not satisfy each of
the criteria of a birth-related neurological injury [as
defined in] § 38.2-5001." Code § 38.2-5008(C).
The Commission must consider, but is not bound by, the