Opinion
Docket No.: CL14007545-00
07-29-2016
MARTHA PANCHO, Plaintiff, v. ROBERT A. JOHNSON, M.D., and CHILDREN'S MEDICAL GROUP, INC. d/b/a JOHNSON PEDIATRICS AT PEMBROKE, Defendants.
OPINION AND ORDER OVERRULING PLEA IN BAR AND MOTION TO DISMISS
This matter came before the Court on Defendant Robert A. Johnson's joint Plea in Bar and Motion to Dismiss and Alternative Motion to Join Marco Vega, an infant, and Marco Vega, the infant's father. For the reasons stated herein, the Plea in Bar and Motion to Dismiss is DENIED and the Alternative Motion for Joinder is DENIED.
Background
Plaintiff alleges in her complaint that Defendant failed to take appropriate action to treat her infant son, Marco Vega, for elevated bilirubin levels during an appointment on May 23, 2008, which she claims caused Marco to sustain severe physical and mental injuries. As a result, Plaintiff states that she has suffered damages in the form of loss of services and medical expenses incurred in obtaining treatment for Marco. No personal injury action on behalf of Marco Vega has been filed in any court, and Marco Vega, the infant's father, has not asserted any claim for loss of services or medical expenses relating to Marco's injuries.
Discussion
Plea in Bar and Motion to Dismiss
In the Plea in Bar and Motion to Dismiss, Defendant argues that Virginia Code § 8.01-36(A) bars Plaintiff's action for medical expenses and loss of services because there is no personal injury action pending on behalf of Marco Vega. This statute provides in pertinent part:
Where there is pending any action by an infant plaintiff against a tort-feasor for a personal injury . . . any parent or guardian of such infant, who is entitled to recover from the same tort-feasor the expenses of curing or attempting to cure such infant from the result of such personal injury, may bring an action against such tort-feasor for such expenses . . . either in the action filed in behalf of the infant or in a separate action. If the claim for expenses be by separate action, upon motion of any party to either case, made to the court at least one week before the trial, both cases shall be tried together at the same time as parts of the same transaction.Va. Code § 8.01-36(A).
The Plea in Bar and Motion to Dismiss centers on the first clause of this statute. In Defendant's view, this language prohibits parents from bringing actions for medical expenses unless and until a personal injury action is brought in the infant's name. As no personal action in the infant's name is currently pending in the instant case, Defendant contends that Plaintiff is barred from bringing the instant action under Code § 8.01-36(A).
Under Virginia law, a wrongful injury to an unemancipated infant creates two rights of action: one on behalf of the infant to recover for personal injury, and one on the part of the parent "for loss of [the infant's] services during minority and necessary expenses incurred for the infant's treatment." Moses v. Akers, 203 Va. 130, 132, 122 S.E.2d 864, 865-66 (1961). The parent's right of action to sue for medical expenses is grounded in the common law:
The common law . . . affords a parent . . . no remedy for an injury to his child. He can recover only for his pecuniary loss thereby, and his pecuniary loss includes two elements: his loss of the child's services and earnings, present and prospective to
the end of the minority, and the medical expenses incurred in effecting or attempting to effect a cure.20 Ruling Case Law: Parent and Child § 25, at 615 (William M. McKinney & Burdett A. Rich eds., 1918); see also Keene v. Yates, 81 F. Supp. 2d 655, 656 (W.D. Va. 2000); R.M.B. v. Bedford Cnty. Sch. Bd., No. 6:15-cv-00004, 2015 U.S. Dist. LEXIS 88193, at *14 (W.D. Va. July 7, 2015) ("A parents' common law right to assert a claim for damages is . . . well-established in Virginia"); Stevenson v. W.M. Ritter Lumber Co., 108 Va. 575, 581, 62 S.E. 351, 353 (1908) (recognizing in dicta "the right of action for damages existing at common law in favor of a . . . parent . . . to recover for losses between the time of an injury and the resulting death" of their minor child); 59 Am. Jur. 2d Parent & Child §§ 116, 118, 124 (2002); 4 Thomas G. Shearman & Amasa A. Redfield, A Treatise on the Law of Negligence § 859, at 1951-53 (Clarence S. Zipp ed., 1941). The Court has not located any authority indicating that a parent could only assert this right of action under the common law when a personal injury action on behalf of the minor was pending. To the contrary, all the descriptions of this common law right highlight that it is separate and distinct from, rather than contingent upon, the minor's claim.
Defendant argues that the first clause of Code § 8.01-36(A) restricts the parent's common law right of action for medical expenses by prohibiting the parent from asserting such a claim unless a personal injury action on behalf of the injured minor is already pending. The Court notes that "a statutory provision will not be held to change the common law unless the legislative intent to do so is plainly manifested." Herndon v. St Mary's Hosp., Inc., 266 Va. 472, 476, 587 S.E.2d 567, 569 (2003) (citing Linhart v. Lawson, 261 Va. 30, 35, 540 S.E.2d 875, 877 (2001); Schwartz v. Brownlee, 253 Va. 159, 166, 482 S.E.2d 827, 831 (1997); Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d 301, 302 (1988)). As such, "a statutory change in the common law will be recognized only in that which is expressly stated in the words of the statute or is necessarily implied by its language." Id. (citing Mitchem v. Counts, 259 Va. 179, 186, 523 S.E.2d 246, 250 (2000); Boyd, 236 Va. at 349, 374 S.E.2d at 302).
The first clause of Code § 8.01-36(A) does not expressly state that a personal injury action on behalf of the injured minor must be pending before the parent may bring her claim. Defendant's interpretation, although supportable under the language of the statute, brings the first sentence of the provision to an end too soon. Defendant reads the statute (paraphrased here) as follows: "Where the infant's action is pending, the parent may bring her action for expenses." Conversely, it would follow that no action by the infant means none may be brought by the parent. An equally supportable reading of the statute that does not abridge the long-recognized common law right of the parent includes the rest of the sentence: "Where the infant's action is pending, the parent may bring her action for expenses in the infant's suit or by separate action." The statute provides that these two actions, if brought separately, may be joined "upon motion of any party to either case." Va. Code § 8.01-36(A). The statute does not clearly express a legislative intent to change the common law and abridge the parent's right of action.
With this language, the General Assembly could plausibly have intended only to acknowledge the parent's common law right of action for medical expenses and to permit that action to be tried jointly with the minor's personal injury action if they are pending at the same time. Indeed, the United States District Court for the Western District of Virginia reached this conclusion in rejecting the interpretation of Code § 8.01-36(A) advanced by Defendant:
I do not interpret [Code § 8.01-36] as requiring an action by the infant for personal injuries as a precondition to the parents' right of action for medical expenses. These separate and distinct causes of action exist as at common law, and the better reading of section 8.01-36 is that it provides a procedural rule whereby if the underlying action by the infant has been filed, the parents' claim may be asserted in that case or in a separate action in the same court.Keene, 81 F. Supp. 2d at 656. The Court is persuaded by this reasoning and concludes that Code § 8.01-36(A) does not expressly provide that a parent is barred from asserting a claim for medical expenses when no personal injury action on behalf of the minor is pending.
Defendant's interpretation is further undermined by the fact that a parent's claim for medical expenses and the injured minor's personal injury claim are governed by different statutes of limitation. The parent of an injured minor must bring his or her claim for medical expenses "within five years after the cause of action accrues." Va. Code § 8.01-243(B). Conversely, a minor who is injured while under the age of eight may bring a personal injury action against a health care provider at any time before his or her tenth birthday. Id. § 8.01-243.1. If the legislature intended to allow parents to assert a claim for medical expenses only when the minor has already brought a personal injury action, it is perplexing that it allowed the minor up to four additional years to bring his or her action.
In sum, the language of Code § 8.01-36(A) does not expressly or implicitly restrict Plaintiff's common law right of action for medical expenses in the manner alleged by Defendant. The Court therefore concludes that this statute does not bar Plaintiff's action. Accordingly, the Plea in Bar and Motion to Dismiss is DENIED.
Alternative Motion to Join Marco Vega, an infant, and Marco Vega, the father
In the alternative to dismissal, Defendant asks the Court to join the infant and the father into this action. Joinder is governed by Rule 3:12 of the Rules of the Supreme Court of Virginia, which provides in relevant part:
A person . . . may be joined as a party in the action if . . . the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already
parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest of the person to be joined.Va. Sup. Ct. R. 3:12(a).
Defendant asserts that both the infant and his father may have actionable claims arising from Defendant's alleged malpractice. As such, Defendant contends that the Court should join these parties to the case at bar pursuant to Rule 3:12 because proceeding in their absence would both impede their ability to protect their respective interests and subject Defendant to a substantial risk of incurring multiple obligations.
Rule 3:12 permits joinder of a person who "claims an interest relating to the subject." Id. Defendant has not made a showing that either the child or the father have done that. The Court cannot assume that Mr. Vega or the child wishes to bring a lawsuit against Defendant and therefore order that they do so. The Court observes that more than five years have elapsed since the alleged malpractice; accordingly, any claim by the father for medical expenses is likely time-barred pursuant to Code § 8.01-243(B). Consequently, proceeding in the father's absence would not implicate any basis for joinder under Rule 3:12.
Next, Defendant argues that the infant should be joined because his and Plaintiff's claims are governed by a single statutory cap on damages prescribed by Code § 8.01-581.15 and that an award of damages in favor of the mother would reduce the amount of recovery available to the infant under the cap. Defendant therefore contends that permitting Plaintiff's suit for medical expenses to proceed without joining the infant as a party would impede the infant's ability to protect his interests.
The Court agrees that this outcome is possible, not just in this case but in every case of alleged medical malpractice to an infant resulting in significant medical expenses. As discussed previously, however, Plaintiff's right of action for medical expenses and the infant's personal injury claim are separate causes of action that are governed by different statutes of limitations and seek relief for different harms. See Moses, 203 Va. at 132, 122 S.E.2d at 865-66; Va. Code §§ 8.01-243(B), -243.1. If the infant or his next friend wishes to sue Defendants, he has approximately two years left to do that. Defendant's motion would have the Court reduce that limitations period and require him to proceed now.
Defendant has not presented any authority holding that the Court should or even may take that action. No case authority holds that a court must order joinder of a parent's action with a case by an infant that has not even been filed. Even if the infant's suit were pending, the Court notes that Code § 8.01-36(A) expressly provides that Plaintiff's right of action may be tried "either in the action filed in behalf of the infant or in a separate action," thereby indicating that joinder of these actions is at most optional.
The General Assembly may see fit to address with legislation the concern that prompts Defendant to ask that the infant's claim be joined before the damages available under the cap are exhausted by the mother's claim for expenses; but the Court has no basis under the statute or the controlling case law to require the infant to assert his claim before that may happen.
Conclusion
The Court holds that Code § 8.01-36(A) does not expressly or implicitly bar Plaintiff from asserting her common law right of action for medical expenses where no personal injury action on behalf of the infant is pending. Accordingly, Defendant's Plea in Bar and Motion to Dismiss are DENIED.
In addition, the Court concludes that joinder of the infant and his father is unwarranted under Rule 3:12. Defendant's Alternative Motion for Joinder is therefore DENIED.
Counsel are directed to file any written objections to this Order within ten days. Further endorsements are waived pursuant to Rule 1:13 of the Rules of the Supreme Court of Virginia.
The Clerk is DIRECTED to send a copy of this Order to all counsel of record.
Entered: 29 July 2016
/s/_________
Mary Jane Hall, Judge