Scarpa v. Melzig , 237 Va. 509 ( 1989 )

LACY, J.,

dissenting.

I respectfully dissent. In Locke v. Johns-Manville Corp., this Court defined the statutory term “injury” as positive physical or mental hurt to the plaintiff. More specifically, the Court stated that:

We construe the statutory word “injury” to mean positive, physical or mental hurt to the claimant, not legal wrong to him in the broad sense that his legally protected interests have been invaded.

221 Va. 951, 957, 275 S.E.2d 900, 904 (1981). The Court held that a trial court should determine the time of injury from medical evidence that would pinpoint most clearly the date of injury. Id. at 959, 275 S.E.2d at 905. Accordingly, the Court in Locke determined that the plaintiffs disease appeared when the tumor developed. By determining that the injury appeared when the tumor developed, the Court declared that the statute of limitations did not bar the plaintiffs suit.

Here the majority states that “the crucial question in this case becomes . . . whether the plaintiff sustained any injury, that is, any positive, physical or mental hurt, though slight, on August 5, 1980 when the sterilization procedure was performed.”

Although a legal wrong may have occurred in 1980 when Dr. Radford performed an incomplete sterilization, no “injury” under the Locke accrual rule had occurred because Mrs. Scarpa had suffered no “positive, physical or mental hurt.” Like the plaintiff in Locke, Mrs. Scarpa did not incur a positive, physical or mental hurt when exposed to the defendants’ negligence. Instead, the positive, physical damage occurred when Mrs. Scarpa’s left fallopian tube was involved in the conception of the child. The resulting injury is directly attributable to the negligent actions of both Dr. Radford and Dr. Melzig. Scarpa believed that she was prevented from ever conceiving children again. Until she became pregnant, Mrs. Scarpa never suffered a positive, physical or mental hurt arising from the defendants’ actions. At the time she learned that she had conceived another child, however, she endured hardship and trauma which she was unable to prevent.

In Locke, we stated that the last date the plaintiffs tumor began to form was unknown, and that the plaintiffs evidence did not show the plaintiffs injury occurred earlier than the onset of the tumor’s symptoms. Id. at 958-59, 275 S.E.2d at 905. The Locke Court held that the plaintiff had filed his complaint within the statute of limitations. Id. Likewise, Scarpa’s injury did not occur earlier than the onset of her pregnancy. Whether Scarpa suffered from an incomplete sterilization was not demonstrated by the medical evidence. In fact, the medical evidence expressly represented that Scarpa had obtained a complete sterilization. Accordingly, the medical evidence did not show that Scarpa’s injury occurred earlier than the onset of the pregnancy’s symptoms.

CARRICO, C.J., joins in dissent.