Angela C. Bess, M.D. v. Valerie Mucci

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and McCullough
PUBLISHED
Argued at Alexandria, Virginia
WOMEN’S HEALTHCARE ASSOCIATES, INC.
v. Record No. 1180-14-4
VALERIE MUCCI AND
VIRGINIA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PROGRAM
ANGELA C. BESS, M.D.
OPINION BY
v. Record No. 1191-14-4 JUDGE ROBERT J. HUMPHREYS
MARCH 3, 2015
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.
v. Record No. 1211-14-4
VALERIE MUCCI AND
VIRGINIA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PROGRAM
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION1
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.
1
Because these three separate but related appeals share the same factual background and
seven assignments of error, we have consolidated these appeals for the purpose of this opinion.
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.
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.
I. BACKGROUND
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
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.
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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 herself—a damaged uterus, physical pain, and permanent
scarring and disfigurement of her uterus, which occurred during the course of labor and delivery”
-3-
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. 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
-4-
were derivative of the infant’s injuries. The deputy commissioner found that Mucci’s claimed
injuries were separate and distinct from her son’s neurological injuries and therefore were not
limited to the exclusive remedy provision of Code § 38.2-5002(B). The commission affirmed
this ruling on May 29, 2014, and transferred Mucci’s claims to the circuit court for resolution in
that forum.
II. ANALYSIS
A. The Consideration of Expert Reports for Determining Jurisdiction
Standard of Review
In their first assignment of error, appellants challenge the commission’s finding that
Mucci could offer expert opinions as part of her petition under Code § 8.01-273.1. Pursuant to
Code § 8.01-273.1(B), the party seeking referral must provide the commission with “appropriate
assessments, evaluations, and prognoses and such other records obtained during discovery and
are reasonably necessary for the determination of whether the infant has suffered a birth-related
injury. The medical records and the pleading referenced in this subsection shall constitute a
petition as referenced in § 38.2-5004.” Because this assignment of error poses a question of law,
the Court reviews the commission’s decision de novo. NiSource, Inc. v. Thomas, 53 Va. App.
692, 711, 674 S.E.2d 581, 591 (2009).
Appellants collectively claim that the commission erred in considering Mucci’s two
expert reports arguing that the petition is comprised only of the initial and responsive pleadings
of the parties and medical records. Specifically, appellants argue that the commission erred in
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allowing Mucci to substitute new allegations in her expert reports that were not previously raised
in her complaint or bill of particulars in the circuit court.2
Even without considering the expert reports, the commission found that “[t]here is ample
information in the record transferred to the commission regarding the alleged injuries for which
Valerie Mucci seeks a remedy.” When there is evidence to support the commission’s findings,
they will not be disturbed on appeal, even though there may be evidence in the record to support
a contrary finding. Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11
(1983). Even when the deputy commissioner considered only the documents appellants rely on,
the commissioner still arrived at the same conclusion—that Mucci’s alleged injuries are
non-derivative of her son’s injuries.
Notably, appellants, not Mucci, referred this case to the commission. In interpreting
Code § 38.2-5001, the commission has found that healthcare providers cannot be a claimant
under this statute because they cannot represent the interests of the infant. In re: Subham Patel,
No. B-09-05, 10 WC UNP B0905 (Va. Workers’ Comp. Comm’n Nov. 22, 2010). This
conclusion is “consistent with the language in § 38.2-5004(B) and (C) which says ‘upon receipt
of the petition or the filing of a claim.’” Id. at *11 (emphasis added). Because Mucci’s claims
were transferred to the commission by appellants, Mucci did not file a complaint before the
commission. Instead, appellants, who sought referral to the commission pursuant to the Act,
filed a petition.
Code § 8.01-273.1(B) mandates that the party seeking referral provide the commission
with “appropriate assessments, evaluations, and prognoses and such other records obtained
2
Assignment of Error #1: “The [c]ommission erred when it found that Ms. Mucci could
raise, and the [c]ommission could consider, new allegations regarding the nature, scope and/or
cause of Ms. Mucci’s alleged injuries that were not set forth in the Complaint or Bill of
Particulars.”
-6-
during discovery and are reasonably necessary for the determination of whether the infant has
suffered a birth-related injury. The medical records and the pleading referenced in this
subsection shall constitute a petition as referenced in § 38.2-5004.” Therefore, the “petition”
includes all medical records and expert reports that can be characterized as assessments,
evaluations, prognoses, and records that can be obtained during discovery. Appellants argue that
Mucci’s expert reports do not meet the definition of a “petition,” because the expert reports relate
to Mucci’s injuries and not her infant son’s. However, appellants are unable to point to any
statutory language or case law that supports the proposition that the deputy commissioner is
limited to considering only the “petition” to make a jurisdictional determination.
The General Assembly has authorized the commission “to hear and pass upon all claims
filed pursuant to this [Act]. The [c]ommission may exercise the power and authority granted to
it in Chapter 2 of Title 65.2 as necessary to carry out the purposes of this chapter.” Code
§ 38.2-5003. The commission has concluded that the purpose of the Act is to “implement a
social policy of providing compensation to families whose neonates suffer birth-related
neurological injuries.” Va. Birth-Related Neurological Injury Comp. Program v. Young, 34
Va. App. 306, 311-12, 541 S.E.2d 298, 301 (2001). Consistent with this purpose, the
commission has been granted broad discretion in reviewing all claims brought under the Act.
There is no statutory language that limits the commission’s authority to consider the entire record
when making a jurisdictional determination.
Finally, the commission’s consideration of the entire record is consistent with the less
rigid, informal nature of the pleading requirements of the commission. “Pleading requirements
in administrative proceedings before the Industrial Commission are traditionally more informal
than judicial proceedings . . . rigid or technical rules of pleading, evidence, or practice in the
conduct of hearings shall not apply so long as the procedures adopted protect the substantial
-7-
rights of the parties.” Sergio’s Pizza v. Soncini, 1 Va. App. 370, 376, 339 S.E.2d 204, 207
(1986) (internal citations omitted). Thus, the commission did not err in considering other
documents in the record when making its determination of jurisdiction.
B. Issues Regarding Sufficiency of Notice
Appellants also claim that the commission erred in finding that issues regarding
sufficiency of notice of Mucci’s claim are matters to be resolved by the circuit court upon
remand.3 While appellants argue that Mucci’s theory of negligence expressed in her complaint
and bill of particulars was different than the theories advanced by her two experts in their
reports, this distinction was never relevant to the commission’s inquiry. Because the Program
created by the Act was designed as a “no-fault” system of compensation, decisions regarding
acceptance into the Program are not based on a finding of negligence. Cooper v. Adler, 44
Va. App. 268, 276, 604 S.E.2d 747, 751 (2004).
The commission’s task was never to assess whether any of the appellants were negligent
with regard to Mucci’s injuries. Instead, the commission’s sole task was to determine if Mucci’s
injuries were “separate and distinct” from her son’s neurological injuries within the meaning of
the Act. The deputy commissioner acknowledged this limited inquiry, stating, “I’m going to
allow the expert reports only to the extent that they address the nature of the injury and whether
or not they’re probative in my determination of whether the injury is derivative.” The fact that
the expert reports expressed a different theory of negligence than stated in the circuit court
pleadings had no relevance to the commission’s determination of whether Mucci’s injuries were
separate and distinct from her infant’s injuries.
3
Assignment of Error #2: “The [c]ommission erred when it ruled that the issues
regarding the sufficiency of notice of Ms. Mucci’s claim, as provided in the Complaint and Bill
of Particulars, are ‘matters of procedure and proof, which are issues to be resolved by the circuit
court upon remand,’ and not matters to be resolved by the [c]ommission prior to, and for the
purpose of, determining jurisdiction.”
-8-
Furthermore, appellants were on notice of Mucci’s specific allegations of injury. It is
clear from the medical records and bill of particulars that Mucci seeks damages for her alleged
permanent disfigurement and damage to her uterus, and pain and worry about her own
well-being. Mucci’s February 16, 2011 pleading to the commission (submitted more than a year
before the evidentiary hearing), further explained that her claim is for “physical injuries to
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.”
Appellants were provided with every opportunity to conduct discovery prior to the
evidentiary hearing that the parties, themselves, requested. “Any party . . . upon application to
the commission setting forth the materiality of the information requested, serve interrogatories or
cause the depositions of witnesses residing within or without the Commonwealth to be
taken . . . .” Code § 38.2-5007. Noting the appellants’ failure to conduct discovery, the
commissioner stated at the evidentiary hearing,
The [c]ommission has discovery rules, we allow discovery, nobody
has written asking me for any discovery. The parties were
certainly welcome to take any depositions they wanted to take . . .
to propound interrogatories, request for production of documents.
I mean all of that has been free and available to everyone. So I
don’t feel that there’s any surprise here today.
Additionally, any variance in the theory of negligence alleged in the complaint and expert
reports was not relevant to the commission’s jurisdictional determination. Proving such theories
would be a necessary requirement for Mucci to prove in circuit court, not before the commission.
Therefore, the commission did not err in finding that any issues of proof or notice are best left to
the circuit court upon remand.
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C. Mucci’s Separate and Distinct Injury Claims
Standard of Review
Appellants further argue that the commission erred in its application of the facts of the
present case to the law set forth in the Act. As a result, this alleged error is a mixed question of
fact and law and is therefore reviewed de novo. Young v. Va. Birth-Related Neurological Injury
Comp. Program, 46 Va. App. 558, 569, 620 S.E.2d 131, 137 (2005). Appellants’ third, fourth,
fifth, sixth, and seventh assignments of error claim the commission erred in interpreting Code
§ 38.2-5002(B). The statute specifically states,
[T]he rights and remedies herein granted to an infant on account of
a birth-related neurological injury shall exclude all other rights and
remedies of such infant, his personal representative, parents,
dependents or next of kin, at common law or otherwise arising out
of or related to a medical malpractice claim with respect to such
injury to the infant, including any claims by the infant’s personal
representative, parents, dependents or next of kin that, by
substantive law, are derivative of the medical malpractice claim
with respect to the infant’s injury, including but not limited to
claims of emotional distress proximately related to the
infant’s injury. This subsection shall not be construed to exclude
other rights and remedies available to the infant’s mother arising
out of or related to a physical injury, separate and distinct from an
injury to the infant that is suffered by the infant’s mother during
the course of the infant's delivery.
Code § 38.2-5002(B) (emphasis added).
When construing a statute, “‘[c]ourts are not permitted to rewrite statutes. This is a
legislative function. The manifest intention of the legislature, clearly disclosed by its language,
must be applied. There can be no departure from the words used where the intention is clear.’”
Barr v. Town & Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting
Anderson v.Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944)). Courts must also
assume that the legislature chose, with care, the words it used when it enacted the relevant
statute, and are bound by those words when interpreting the statute. Id.- 10 -
1. Statutory Interpretation of “arising out of,” “derivative,”
and “separate and distinct”
Appellants have advanced three specific assignments of error to the commission’s
interpretation of Code § 38.2-5002(B) as it relates to whether a mother’s injury claim is separate
and distinct from the infant’s injury. First, appellants claim that the commission erred in finding
that Mucci’s alleged injuries are “separate and distinct” from the child’s neurological injuries.4
Appellants also assert that the commission erred in finding that Mucci’s claim does not “arise out
of” or relate to a medical malpractice claim with respect to the infant, or is not “derivative of”
the medical malpractice claim with respect to the infant’s injury.5 Finally, appellants argue that
uncontroverted evidence shows that the timing of and the decision to perform a cesarean section
were dictated solely by the needs of the infant, and therefore any injuries to Mucci’s uterus
occurred as a direct result.6
The statute makes clear, “This subsection shall not be construed to exclude other rights
and remedies available to the infant’s mother arising out of or related to a physical injury,
separate and distinct from an injury to the infant that is suffered by the infant’s mother during the
course of the infant’s delivery.” Code § 38.2-5002(B). The preceding sentence of the code
section expressly states that the remedies granted to the infant shall exclude all other rights and
4
Assignment of Error #3: “The [c]ommission erred when it interpreted and applied Code
Section 38.2-5002(B) in such a manner as to conclude that Ms. Mucci’s alleged injuries are
separate and distinct from the infant’s neurological injury.”
5
Assignment of Error #4: “The [c]ommission erred when it ruled that Ms. Mucci’s claim
does not arise out of or relate to a medical malpractice claim with respect to the infant, or is not
derivative of the medical malpractice claim with respect to the infant’s injury, pursuant to Code
Section 38.2-5002(B).”
6
Assignment of Error #5: “The [c]ommission erred when it failed to consider the
uncontroverted evidence that the fact of and timing of the cesarean section were dictated solely
by the medical needs and condition of the infant, and any alleged injury to Ms. Mucci’s uterine
tissue occurred as a direct, natural result.”
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remedies that may be available to other parties with respect to the infant’s injury “arising out of
or related to a medical malpractice claim with respect to such injury to the infant . . . that . . . are
derivative to the medical malpractice claim with respect to the infant’s injury.” Id. Read
together, it follows that the “separate and distinct” claims of an injured child’s mother that are
not subject to the exclusive remedy of the Act, are distinct from the “derivative claims” “arising
out of” a claim of injury to the infant, which are encompassed by the Act.
Appellants mistakenly argue that the correct inquiry under the Act is whether the claim of
the parent arises out of or is related to the infant’s medical malpractice claim. The term “medical
malpractice claim” is qualified with the phrase “with respect to such injury to the infant.” Code
§ 38.2-5002(B). Therefore, the medical malpractice claim must be causally related to the injury
of the infant. This interpretation is consistent with this Court’s previous holding that the phrase
“arising out of” implicates a causation requirement and has been construed as referring to the
“origin or cause of the injury.” Cooper, 44 Va. App. at 278, 604 S.E.2d at 752 (citing Bradshaw
v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938)). Thus, this Court must consider the
origin of Mucci’s injury rather than merely the origin of Mucci’s medical malpractice claim as
appellants suggest. The Virginia Supreme Court has considered the meaning of a derivative
claim, holding it to be a claim “having no origin in itself, but one owing its existence to a
preceding claim.” Mahony v. Becker, 246 Va. 209, 212, 435 S.E.2d 139, 141 (1993) (citing
Black’s Law Dictionary 443 (6th ed. 1990)).
In analyzing whether a mother’s injury was separate and distinct from her infant’s injury,
this Court rejected a mother’s claim for emotional distress stemming from her child’s
neurological injuries reasoning, “but for the injury to the child, appellant would have no claim of
emotional distress.” Cooper, 44 Va. App. at 279, 604 S.E.2d at 752. In that case, this Court
found that the mother’s injuries “flowed naturally from and was incidental to the birth-related
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neurological injury to her child.” Id. In other words, the mother’s claim was derivative of her
child’s injury claim and only existed because her child was born with neurological injuries.
Conversely, Mucci’s claim for injuries to her uterine tissue and emotional stress relating
to those injuries did not occur “but for” the birth-related neurological injury to her son. These
claimed injuries could have also occurred with the delivery of an otherwise healthy child. The
commission found that the “injuries [Ms. Mucci] allegedly sustained were not caused by the loss
of oxygen to [her infant son’s] brain but rather by the induction of labor and subsequent cesarean
section. Her injuries did not flow naturally and incidentally from those her child suffered.” It is
clear from the face of the statute that injuries sustained by a mother that are not incidental to the
child’s neurological injuries are not governed by the Act. The record is clear that Mucci’s claims
are for separate injuries relating to her uterine tissue.
2. Statutory Interpretation of “during the course of delivery”
Appellants’ sixth assignment of error alleges that the commission incorrectly interpreted
the injury timing restrictions of Code § 38.2-5002(B), an issue of first impression for this Court.
Specifically, appellants argue that the commission erred in concluding that Mucci’s alleged
injuries sustained during labor, and not delivery, are beyond the commission’s jurisdiction.7
Words in a statute are to be construed according to their ordinary meaning, given the
context in which they are used. Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350
(1982). “Where the legislature has used words of a plain and definite import the courts cannot
put upon them a construction which amounts to holding the legislature did not mean what it has
actually expressed.” Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934). The term
“delivery” is defined as “the procedure of delivering the fetus and placenta by manual,
7
Assignment of Error #6: “The [c]ommission erred when it interpreted and applied Code
Section 38.2-5002(B) in such matter as to conclude that Ms. Mucci’s alleged injuries sustained
during labor, and not delivery, are beyond the [c]ommission’s jurisdiction.”
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instrumental, or surgical means.”8 Webster’s Third New International Dictionary 597 (3d ed.
1993).
Appellants limit the statutory language by focusing solely on the term “delivery” to
conclude that Mucci’s injury claims are encompassed by the Act. Yet, the plain language of the
statute is, “during the course of the infant’s delivery.” Code § 38.2-5002(B). Adopting
appellants’ proposed interpretation of this statutory language to mean only the birth of a child,
would render the phrase, “during the course of” completely meaningless. If the General
Assembly intended to limit the statutory exclusion to a mother’s injuries only occurring at the
precise moment of delivery, the statute could have been easily written as “at delivery” or “at
birth.” Nonetheless, the legislature specifically included the phrase “during the course of,”
which is consistent with a more expansive inclusion of time, place, and circumstances.
Virginia jurisprudence is clear that, “where the question involves an interpretation which
is within the specialized competence of the agency and the agency has been entrusted with wide
discretion by the General Assembly, the agency’s decision is entitled to special weight in the
courts.” Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 244, 369 S.E.2d 1, 8 (1988).
The rationale of the statutory scheme is that the [administrative
agency] shall apply expert discretion to matters coming within its
cognizance, and judicial interference is permissible only for relief
against the arbitrary or capricious action that constitutes a clear
abuse of the delegated discretion. The reviewing judicial authority
may not exercise anew the jurisdiction of the administrative
agency and merely substitute its own independent judgment for
that of the body entrusted by the Legislature with the
administrative function.
8
Webster’s Third New International Dictionary 597 (3d ed. 1993), also defines
“delivery” as “the expulsion or extraction of a fetus and its membranes.” “Delivery” is also
defined as “giving birth to a child, together with the placenta and membranes, by a parturient
woman.” Taber’s Cyclopedic Medical Dictionary 640 (22d ed. 2013).
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Va. Alcoholic Beverage Control Comm’n v. York St. Inn, Inc., 220 Va. 310, 315, 257 S.E.2d
851, 855 (1979).9
The commission has exclusive jurisdiction to decide whether an infant’s claim lies within
the purview of the Act. Code § 38.2-5003. The legislature entrusted the commission with broad
discretion in interpreting and enforcing the Act. In this role, the commission has consistently
held that the key inquiry in determining whether a mother’s claim is barred depends on whether
it arises out of, or relates solely to the infant’s injury, not whether the mother’s injury occurred at
any particular time during the labor and delivery process. See In re: Robert Chad Lowery, File
No. B-04-09, 05 WC UNP B0409 (Va. Workers’ Comp. Comm’n Apr. 29, 2005); see also In re:
Nina Scott, File No. B-07-05, 07 WC UNP B0705 (Va. Workers’ Comp. Comm’n Nov. 20,
2007).
As applied to Code § 38.2-5002(B), this Court affirms the commission’s determination
that limiting the interpretation of the language “during the course of delivery” to only the
moment of the infant’s birth would create an inconsistency with the definition of “birth related
neurological injury,” which can occur during labor, delivery, and resuscitation. This Court
appropriately defers to the commission’s consistent interpretation of the Act and its medical
terms such as “during the course of delivery.”
3. Commission’s Finding Regarding Mucci’s Remedy
In their final assignment of error, appellants claim that the commission erred by basing its
ruling that it lacks jurisdiction over Mucci’s claims on “the fact that applying the Act to
9
This standard of review was not altered by the 2013 amendments to Code § 2.2-4027.
The General Assembly left intact the language that requires courts to “take due account of the
presumption of official regularity, the experience and specialized competence of the agency, and
the purposes of the basic law under which the agency has acted.” Code § 2.2-4027.
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Ms. Mucci’s personal injury claim would give her no remedy even if she proves her case.”10
Appellants misstate the commission’s holding. The commission, in interpreting the purpose of
the Act, correctly reasoned that the General Assembly did not intend to deprive a mother of a
remedy for her own separate physical injuries simply because those injuries, like her child’s
neurological injuries, may have also been attributed to medical malpractice. This statement is
consistent with the commission’s finding, “we do not believe that the [G]eneral [A]ssembly
intended to offer blanket immunity for all physical injuries, including those of the mother.”
Lowery, 05 WC UNP B0409, at *7. Instead, the Act makes it explicitly clear that non-derivative
injuries to the mother are exceptions to the exclusive remedy provision of the Act.
III. CONCLUSION
Finding that the commission did not err in concluding that Mucci’s claims were separate
and distinct from her infant son’s neurological injuries and thus, were not subject to the exclusive
remedy of the Act, we affirm the commission’s finding and decision to transfer Mucci’s personal
injury claims to the circuit court for resolution.
Affirmed.
10
Assignment of Error #7: “The [c]ommission erred when it based its ruling that it lacks
jurisdiction over Ms. Mucci’s claim on the fact that applying the Act to Ms. Mucci’s personal
injury claim would give her no remedy even if she proves her case.”
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