PRESENT: All the Justices

MARISSA R. SIMPSON, AN INFANT,
WHO SUES BY HER FATHER AND
NEXT FRIEND
                                              OPINION BY
v.   Record No. 121984                 JUSTICE DONALD W. LEMONS
                                           JANUARY 10, 2014
DAVID ROBERTS, ET AL.


           FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                    William D. Broadhurst, Judge

      In this appeal we consider whether the Circuit Court of the

City of Roanoke ("trial court") erred when it held that Marissa

R. Simpson ("Simpson") was a patient of Dr. David Roberts ("Dr.

Roberts") and that her claim arose under Virginia's Medical

Malpractice Act, Code §§ 8.01-581.1 et seq. ("Act"), and was

subject to the Act's statutory cap on damages, Code § 8.01-

581.15.

                  I.     Facts and Proceedings Below

      Simpson filed a motion for judgment in 2003, by her father

and next friend, Christopher Simpson, against Dr. Roberts, Dr.

J. Bradley Terry, and Southwest Virginia Physicians for Women,

Inc. (collectively referred to as the "defendants"). 1    Simpson

alleged that as a result of the defendants' negligence, she was

born with serious and permanent injuries.     In her motion for

judgment, Simpson asserted that her claims were common law

1
  Simpson also sued Dr. Leslie E. Badillo and Carilion Healthcare
Corporation; however, those parties are not involved in this
appeal.
claims for medical malpractice because the treatment in question

was not covered under the Act.    Simpson demanded $10 million in

damages.

       The defendants filed a demurrer, arguing that the motion

for judgment failed to state a cause of action for common law

medical malpractice, failed to state why it was not covered by

the Act, and that the ad damnum exceeded the statutory cap under

the Act.    A hearing on the demurrer was held on August 11, 2005,

where Simpson clarified that she was only alleging her claim

against Dr. Roberts was not covered by the cap.    Simpson argued

that at the time Dr. Roberts breached the standard of care, she

was not a "natural person" because she had not yet been born,

and therefore was not a "patient" as defined by the Act.     She

argued that because Dr. Roberts only treated her while she was

in utero, he never had a doctor-patient relationship with her,

and therefore she could bring a common law cause of action

against him.    Dr. Roberts argued that once Simpson was born

alive, she became his patient and this claim was covered by the

Act.    The trial court sustained the demurrer and allowed Simpson

to file an amended pleading.

       Simpson filed an amended motion for judgment 2 asserting two

alternative counts against the defendants: one for medical


2
  Simpson filed her amended motion for judgment on September 25,
2005, prior to the amendment of Part Three of the Rules of
                                  2
malpractice under the Act, and one for common law medical

malpractice against Dr. Roberts and his employer.    The

defendants filed their responsive pleadings, including another

demurrer to the common law claim.     However, the trial court

never formally adjudicated this demurrer and the parties treated

the claim as though the trial court's ruling on the demurrer was

unchanged.   Simpson then filed a second amended complaint,

adding a claim against another party who is not involved in this

appeal.   The second amended complaint did not alter any of the

allegations against Dr. Roberts and his employer.    The case

proceeded to trial on the second amended complaint.

     A multi-day jury trial was held in May 2012.    The evidence

presented demonstrated that Simpson's mother, Marsha, was

referred to Dr. Roberts by her family doctor during the third

trimester of her pregnancy because she had developed gestational

diabetes.    Dr. Roberts performed amniocentesis to determine

whether Simpson's lungs were mature enough to induce early

labor.    When Dr. Roberts performed the procedure, bleeding

occurred.    Dr. Roberts then turned Marsha's care over to his

partner, Dr. Terry, and was not involved in any further care of

Marsha or Simpson.   Complications arose from the unsuccessful



Court, effective January 1, 2006, providing that "[a] civil
action shall be commenced by filing a complaint in the clerk's
office." Rule 3:2(a). Her second amended pleading, filed on
May 30, 2006, was styled as a "Second Amended Complaint."
                                  3
amniocentesis.     Dr. Terry performed a caesarean section later

that day to deliver Simpson.     Simpson was born with damaged

kidneys and cerebral palsy.     The jury returned a $7 million

verdict in Simpson's favor against Dr. Roberts, Dr. Terry, and

Southwest Virginia Physicians for Women, Inc.

         The defendants filed a motion to reduce the jury verdict

pursuant to Virginia's statutory cap under the Act.     Simpson

filed an opposition to this motion and a motion asking the trial

court to reconsider its previous ruling sustaining the

defendants' demurrer on Simpson's common law cause of action

against Dr. Roberts and Southwest Virginia Physicians for Women,

Inc. 3

         The trial court held a hearing on the motion to reduce the

verdict and heard argument from the parties.      At the conclusion

of the hearing, the trial court held that the cap applied.       The

trial court further held that Simpson was Dr. Roberts' patient,

because at the time she was born alive, she became a "patient"

under the Act.     A final order was entered on August 21, 2012,

awarding Simpson $1.4 million, the amount to which she was

entitled under the cap.

         Simpson timely filed her appeal to this Court, and we

awarded her an appeal on the following assignments of error:

3
  Simpson agreed that the statutory cap applied to her verdict
against Dr. Terry. Her argument that the cap does not apply is
limited to Dr. Roberts and his employer.
                                    4
1.   The trial court erroneously ruled that the child was a
     patient of Dr. Roberts; and that her claim arose under the
     Medical Malpractice Act and was subject to the statutory
     cap on damages.

2.   The trial court erroneously reduced the verdict based on
     the Medical Malpractice Act.

                               II.   Analysis

                            A. Standard of Review

     The issues whether Simpson is a patient within the meaning

of the Act and whether the health care which was provided or

should have been provided is covered by the Act are questions of

statutory interpretation.      Well-established principles guide our

review of such questions.      Issues of statutory interpretation

are pure questions of law that this Court reviews de novo.

Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96,

104, 639 S.E.2d 174, 178 (2007).          When the language of a statute

is unambiguous, we are bound by the plain meaning of that

language.     Id.    We must give effect to the legislature's

intention as expressed by the language unless a literal

interpretation of the language would result in a manifest

absurdity.     Id.    If a statute is subject to more than one

interpretation, this Court must "apply the interpretation that

will carry out the legislative intent behind the statute." Id.

                          B. Legislative History

     The origin of Virginia's Medical Malpractice Act is well-

documented.    In 1976, the General Assembly determined that the

                                      5
increase in medical malpractice claims was directly affecting

the cost and availability of medical malpractice insurance, and

that without such insurance, health care providers could not be

expected to continue providing medical care for the

Commonwealth's citizens.   Etheridge v. Medical Center Hospitals,

237 Va. 87, 93, 376 S.E.2d 525, 527 (1989).     Because of this

threat to medical care services, the General Assembly enacted

the Virginia Medical Malpractice Act.    Id.

     The General Assembly took the unusual step of including a

preamble of the Act, in which it explained the need and reasons

for the legislation.   We are aided in our understanding of

legislative intent by the unusually explicit statement of

legislative purpose in the preamble.    See Bulala v. Boyd, 239

Va. 218, 227, 389 S.E.2d 670, 674 (1990).      The preamble states:

               Whereas, the General Assembly has
          determined that it is becoming increasingly
          difficult for health care providers of the
          Commonwealth to obtain medical malpractice
          insurance with limits at affordable rates in
          excess of $750,000; and

               Whereas, the difficulty, cost and
          potential unavailability of such insurance
          has caused health care providers to cease
          providing services or to retire prematurely
          and has become a substantial impairment to
          health care providers entering into practice
          in the Commonwealth and reduces or will tend
          to reduce the number of young people
          interested in or willing to enter health
          care careers; and



                                 6
               Whereas, these factors constitute a
          significant problem adversely affecting the
          public health, safety and welfare which
          necessitates the imposition of a limitation
          on the liability of health care providers in
          tort actions commonly referred to as medical
          malpractice cases[.]

1976 Acts ch. 611.

     One component of the Act is the statutory cap on damages in

any verdict returned against a health care provider, which is

set out in Code § 8.01-581.15.   The purpose of the statutory cap

is to provide a "security blanket" to health care providers and

their insurers, to know what limits in coverage should be

carried and to keep insurance available and affordable.      Gen.

Assem. J. Subcomm. Studying Virginia's Medical Malpractice Laws,

Interim Report, H. Doc. No. 21, at 12 (1985).       The General

Assembly determined that the cap on recovery was an appropriate

means of addressing the problem described in the preamble.

Bulala, 239 Va. at 227-28, 389 S.E.2d at 675.      It is clear that

the intent of the legislature was to have the statutory cap

apply "[i]n any verdict returned against a health care provider

in an action for malpractice."   Code § 8.01-581.15.

            C. Definition of Patient/Application of Cap

     There are several terms defined in the Act that are

applicable to our analysis here.       A "patient" is defined as:

          [A]ny natural person who receives or should
          have received health care from a licensed
          health care provider except those persons

                                   7
           who are given health care in an emergency
           situation which exempts the health care
           provider from liability for his emergency
           services in accordance with § 8.01-225 or
           44-146.23.

Code § 8.01-581.1.   Malpractice is defined as:

           [A]ny tort action or breach of contract
           action for personal injuries or wrongful
           death, based on health care or professional
           services rendered, or which should have been
           rendered, by a health care provider, to a
           patient.

Id.   Health care is defined as:

           [A]ny act, or treatment performed or
           furnished, or which should have been
           performed or furnished, by any health care
           provider for, to, or on behalf of a patient
           during the patient's medical diagnosis,
           care, treatment or confinement.

Id.

      Simpson argues that, at the time Dr. Roberts injured her,

she was a fetus and therefore did not meet the definition of a

"patient" because she was not yet a "natural person."     This

Court has consistently followed the rule that a fetus is part of

the mother, and injury to the fetus is injury to the mother.     If

the fetus is never born alive, the fetus never develops a legal

claim, but the mother may recover for the physical injury and

mental suffering associated with a stillbirth. 4   Modabar v.

Kelley, 232 Va. 60, 66, 348 S.E.2d 233, 236-37 (1986).    However,

4
  The amendments to Code § 8.01-50(B)&(C) effected by Acts 2012,
ch. 725 were not in effect at the time this cause of action
arose.
                                   8
if the child is born alive, the child may bring a claim for the

injury suffered in utero.

     In Kalafut v. Gruver, 239 Va. 278, 283-84, 389 S.E.2d 681,

684 (1990), we held that "a tortfeasor who causes harm to an

unborn child is subject to liability to the child, or to the

child's estate, if the child is born alive."   This is often

referred to as the "conditional liability rule."    Id. at 284,

389 S.E.2d at 684.   We explained that

          the test is not, as defendant implies,
          whether the decedent could have maintained a
          personal injury action at the time of
          defendant's negligence or, stated
          differently, whether a fetus can maintain a
          tort action at the time it is injured in
          utero. Rather, the statutory test is
          whether, had death not ensued, the person
          could subsequently have maintained a
          personal injury action. Clearly, the answer
          to that question is in the affirmative in
          the case of a live birth.

Id. at 285, 389 S.E.2d at 684-85.

     We applied this rule in the context of a medical

malpractice action in the case of Bulala, 239 Va. 218, 389

S.E.2d 670, which was decided the same day as Kalafut.    In

Bulala, we considered whether a child, born alive, who was

injured during labor, was a "patient" of the obstetrician who

should have been present at her delivery.    Id. at 229, 389

S.E.2d at 675-76.    In Bulala, the defendant doctor failed to

arrive at the hospital in a timely fashion to monitor the mother


                                  9
during her labor and was not present for the delivery.    The baby

suffered asphyxia which caused severe birth defects.   Id. at

223, 389 S.E.2 at 672.   We held that the baby and the mother

were each entitled to a separate cap under the Act because once

the baby was born alive she became a "person" and met the

definition of a "patient" under the Act.    Id. at 229, 389 S.E.2d

at 675-76.   The baby was entitled to her own separate damages

because at the moment of live birth, she became a patient who

should have received care from the defendant doctor.     Id.

       In Castle v. Lester, 272 Va. 591, 636 S.E.2d 342 (2006), we

reaffirmed our previous ruling in Bulala, holding that "when [a]

defendant-doctor's negligence caused the child, though born

alive, to be seriously impaired.... the mother and child were

both 'patients' of the defendant, each of whom was entitled to a

separate statutory damage cap under the Virginia Medical

Malpractice Act."   272 Va. at 602, 636 S.E.2d at 347 (citation

omitted).

       Simpson attempts to distinguish her situation from that in

Bulala by arguing that Dr. Roberts was never intended to deliver

her or to provide her with health care at any point in her life.

She contends that his only role was to conduct amniocentesis,

which occurred before she was a person and a "patient" under the

Act.   The facts of the case and this Court's precedent, however,

do not support Simpson's position.

                                 10
      As we stated in Kalafut, the test is not whether Simpson

could have maintained a personal injury action at the time of

Dr. Roberts' negligence or, stated differently, whether a fetus

can maintain a tort action at the time an injury is suffered in

utero.   239 Va. at 285, 389 S.E.2d at 684-85.   Rather, the

statutory test is whether, if death does not ensue, a person

could subsequently have maintained a personal injury action.

Id.   In Kalafut and Bulala, our answer to that question was in

the affirmative in the case of a live birth.

      The evidence presented at trial was that the amniocentesis

was performed, at least in part, for Simpson's benefit to

determine whether her lungs were developed enough that she could

be safely delivered.   When Dr. Roberts performed this procedure,

he was providing health care to Simpson and her mother.     If

Simpson had never been born alive, her mother would have been

able to recover for the physical and emotional injuries

associated with a stillbirth.    However, once Simpson was born

alive, she became a natural person under the Act.   Upon birth,

she became a patient of Dr. Roberts under the Act and had her

own claim against Dr. Roberts.   Under the Act, her claim for

negligence included health care provided in utero consistent

with the statutory definition.   Our holding in Castle is

applicable here: Dr. Roberts' negligence in performing the

amniocentesis "caused the child, though born alive, to be

                                 11
seriously impaired.... the mother and child were both 'patients'

of the defendant, each of whom was entitled to a separate

statutory damage cap under the Virginia Medical Malpractice

Act."    Castle, 272 Va. at 602, 636 S.E.2d at 347 (citation

omitted).

     Under this Court's holdings in Bulala, Castle, and Kalafut,

Simpson became a "patient" when she was born alive.   Having

determined that Simpson became a patient, we look to the

statutory definition of "health care" to determine whether her

claim falls within the Act.   The definition of "health care" is

sufficient to encompass the medical services and procedures that

Roberts provided or should have provided while Simpson was in

utero.   Interpreting this statute in any other manner would be

contrary to the clear legislative intent expressed by the

General Assembly to have the statutory cap apply "[i]n any

verdict returned against a health care provider in an action for

malpractice."   Code § 8.01-581.15.   "[E]very statute is to be

read so as to promote the ability of the enactment to remedy the

mischief at which it is directed."    Bulala, 239 Va. at 227, 389

S.E.2d at 674 (citations and internal quotation marks omitted).

Simpson's interpretation of the Act potentially would expose

health care providers who treat pregnant women to unlimited

liability.   Such a result would be contrary to what the General



                                 12
Assembly intended when it passed the Act, and we decline to

accept her construction of the statute.

                           III.   Conclusion

     We will affirm the judgment of the trial court that

Virginia's statutory cap on damages applies to Simpson's cause

of action against the defendants in this case.

                                                              Affirmed.


JUSTICE McCLANAHAN, concurring.

     I concur in the judgment of the Court because I agree the

Act applies to Simpson's claim against Dr. Roberts.       However, I

would hold that Simpson became a "patient" as defined by the Act

when Dr. Roberts performed the amniocentesis – the date she

received the alleged negligent treatment.

     The Act's definitions of "patient" and "health care" focus

on whether and when treatment is, or should have been, performed

by a health care provider, not on when the patient has a cause

of action – an entirely separate issue.        Specifically, the Act

defines "patient" as "any natural person who receives or should

have received health care from a licensed health care provider."

Code § 8.01-581.1.    "Health care" is defined as treatment

performed or which should have been performed "on behalf of a

patient during the patient's medical diagnosis, care, treatment

or confinement."     Id. (emphasis added).     Therefore, the Act


                                   13
intends, and indeed assumes, that the physician-patient

relationship exists when the treatment is, or should have been,

rendered.   This conclusion is compelled by basic principles

governing the physician-patient relationship under which "[a]

physician's duty arises only upon the creation of a physician-

patient relationship."   Didato v. Strehler, 262 Va. 617, 626,

554 S.E.2d 42, 47 (2001) (quoting Lyons v. Grether, 218 Va. 630,

633, 239 S.E.2d 103, 105 (1977)).    There is no language in the

Act indicating that the General Assembly intended its definition

of "patient" to relate back to treatment rendered prior to the

creation of the physician-patient relationship and, thus, prior

to the existence of any duty.

     Although the term "natural person" is not defined in the

Act, I believe the General Assembly intended to include children

in utero who are treated by a health care provider within the

meaning of "patient" without regard to whether a cause of action

may be brought by the child against such physician at the time

treatment is rendered.   Code § 8.01-2 defines "person" to

"include individuals, a trust, an estate, a partnership, an

association, an order, a corporation, or any other legal or

commercial entity."   Therefore, the definition of "patient"

should properly be understood to mean natural human beings as

distinguished from artificial entities.



                                14
     Notably, in 2012, the General Assembly amended the wrongful

death statute to recognize that an action may be brought against

a tortfeasor for the wrongful death of a child in utero.

Addressing actions for "fetal death" brought under the Virginia

Medical Malpractice Act, the General Assembly stated that "where

the wrongful act that resulted in a fetal death also resulted in

the death of another fetus of the natural mother or in the death

or injury of the natural mother, recovery for all damages

sustained as a result of such wrongful act shall not exceed the

limitations on the total amount recoverable for a single patient

for any injury under § 8.01-581.15."   2012 Acts ch. 725

(enacting Code § 8.01-50(C)).   Thus, in recognizing actions for

fetal death under the Act, the General Assembly assumed that an

unborn child was a "natural person" for purposes of the

definition of "patient," without finding it necessary to amend

the definition of "patient" under the Act.

     Although the majority holds it is immaterial whether

Simpson was a patient at the time she was treated by Dr.

Roberts, our precedent leaves no doubt that the determination of

whether a physician-patient relationship exists is made with

reference to the time that treatment is, or should have been,

rendered.   For example, in Fruiterman v. Granata, 276 Va. 629,

668 S.E.2d 127 (2008), we required the father in a wrongful

birth action to show the existence of a physician-patient

                                15
relationship at the time the treatment was, or should have been,

rendered.     As we stated, "[t]he question whether [the father]

had a physician-patient relationship with [the physician],

however, turns solely on the facts surrounding [the date health

care was provided to the mother]."     Id. at 644, 668 S.E.2d at

136.   This was so based on the "language included at the end of

the definition of 'health care,' referring to any act or

treatment which should have been furnished 'during the patient's

medical diagnosis, care, treatment or confinement.'"     Id. at

643, 668 S.E.2d at 135. (quoting Code § 8.01-581.1) (emphasis in

original).     See also Gonzalez v. Fairfax Hosp. System, Inc., 239

Va. 307, 310, 389 S.E.2d 458, 459 (1990) (Plaintiff received

"health care" within the meaning of the Act because "[t]he

alleged negligent acts occurred while [plaintiff] was receiving

treatment as a patient.") (emphasis added).

       In Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1976), this

Court recognized the necessity of finding the existence of a

physician-patient relationship when treatment was, or should

have been, rendered.    In determining whether the child in Bulala

was entitled to the benefit of a separate cap, the Court held

that the child was a patient and entitled to a separate cause of

action "because she was a 'natural person' who, at the instant

of birth, received or 'should have received' health care from

defendant."    239 Va. at 229, 389 S.E.2d at 676.   The Court's

                                  16
holding was consistent not only with the Act's requirement that

a physician-patient relationship exist when treatment is, or

should have been, rendered, but also with the well-established

principle that a physician's duty to a patient arises upon the

creation of that relationship.   See Code § 8.01-581.1; Didato,

262 Va. at 626, 554 S.E.2d at 47.
1

     In my view, the majority improperly extrapolates into the

definition of "patient" this Court's test for determining when a

cause of action arises in tort for injuries to a child in utero.

In Kalafut v. Gruver, 239 Va. 278, 283-86, 389 S.E.2d 681, 684-

85 (1990), this Court recognized that a tortfeasor will be


1
  In Bulala, we were asked to determine whether the limitation of
damages provided for in Code § 8.01-581.15 applied individually
to the mother and her infant daughter or overall to both
plaintiffs when the damages arose from the same act or acts of
medical malpractice. See Bulala, 239 Va. at 222, 389 S.E.2d at
671-72. There was no dispute that the Act applied to the
daughter's claim. Rather, the issue was whether the daughter
was entitled to her own individual cap or whether her claim fell
within the mother's statutory cap. In that context, we
explained that "at the moment of live birth, the child became
the patient of [Dr. Bulala]," the physician responsible for the
delivery of the child. Id. at 229, 389 S.E.2d at 676. Because
the child alleged negligence against Dr. Bulala arising from his
failure to provide care at her birth, we were not asked, and
indeed it was unnecessary, to determine whether an unborn child
may be deemed a "patient" of a health care provider where the
health care provider was not obligated to provide treatment at
the time of birth. Rather, the disagreement in Bulala "existed
. . . as to whom was a proper plaintiff," and not as to whether
the child's claim alleged malpractice within the meaning of the
Act in the first place. See Castle v. Lester, 272 Va. 591, 603,
636 S.E.2d 342, 348 (2006).


                                 17
subject to liability for harm caused to an unborn child when

that child is born alive. 2   Applying the language of Virginia's

wrongful death statute, the Court explained that under the

language of the statute, the test is "whether, had death not

ensued, the person could subsequently have maintained a personal

injury action."   Id. at 285, 389 S.E.2d at 684-85. 3   In adopting

a cause of action for harm to unborn children, the Court stated

that "we have drawn the line between nonliability and liability

for prenatal injury at the moment of live birth of the child."

Id. at 284, 389 S.E.2d at 684.    The test adopted by the Court in

Kalafut, while determinative of when a cause of action for

prenatal injury will lie, has no bearing on whether a child in




2
  Despite recognizing a cause of action for injuries to unborn
children who are born alive, the Court nevertheless refused to
abandon its view that "in tort litigation . . . an unborn child
is a part of the mother until birth." Modaber v. Kelley, 232
Va. 60, 66, 348 S.E.2d 233, 236-37 (1986); see Kalafut, 239 Va.
at 284-85, 389 S.E.2d at 684-85. The Court's retention of this
view, however, did not vitiate the duty owed by a tortfeasor to
a child in utero, the breach of which may give rise to a cause
of action in tort. Likewise, it did not vitiate the duty owed
by a physician to a child in utero, the breach of which may give
rise to a cause of action for medical malpractice. Instead, the
duty owed by a physician to a child in utero is based on whether
a physician-patient relationship has been created and cannot
arise absent the existence of such relationship.
3
  The wrongful death statute now provides a cause of action for
the wrongful death of a child in utero. See Code § 8.01-50(B),
added by 2012 Acts ch. 725.


                                 18
utero is a "patient" under the Virginia Medical Malpractice Act. 4

Furthermore, there is no language in the Act that would evidence

an intent by the General Assembly that this Court's evolving

treatment of the legal status of a child in utero should be

incorporated into its definitions of "patient" and "health

care," both of which focus on whether and when treatment is, or

should have been, rendered, not on when the patient has a cause

of action for negligent treatment.

     For these reasons, I would hold that Simpson became a

"patient" of Dr. Roberts when he performed the amniocentesis.

At that time, the physician-patient relationship was created,

which in turn, gave rise to Dr. Roberts' duty.   Therefore, the

Act and its statutory cap on damages applied to Simpson's claim.

Accordingly, while I depart from the majority's rationale, I

concur with the Court's decision to affirm the judgment of the

trial court.




4
  The majority relies upon Bulala for the proposition that the
Act's definition of "patient" depends on when a cause of action
exists. As stated previously, the issue in Bulala was whether
the child was entitled to a separate cause of action and
statutory cap on damages. Because she alleged negligent
treatment at her birth, the Court was necessarily focused on her
status as a patient at birth. To the extent the Court
incorporated into the definition of "patient" the test it
adopted in Kalafut for determining when a cause of action exists
for prenatal injury, I believe Bulala should be clarified.



                                19
20
