PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHRISTIAN P. NIELSEN,
Plaintiff-Appellant,

v.

RICHARD L. GAERTNER, M.D.,
                                                                    No. 94-1702
Defendant-Appellee.

VIRGINIA TRIAL LAWYERS
ASSOCIATION,
Amicus Curiae.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-93-1383-A)

Argued: January 30, 1995

Decided: September 18, 1996

Before ERVIN and MOTZ, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Ervin wrote the
opinion, in which Judge Motz and Senior Judge Phillips joined.

_________________________________________________________________

COUNSEL

ARGUED: Steven Mark Garver, LAW OFFICES OF STEVEN M.
GARVER, P.C., Reston, Virginia, for Appellant. John J. Brandt,
SLENDER, BRANDT, JENNINGS & JOHNSTON, Merrifield, Vir-
ginia, for Appellee. ON BRIEF: Cheryl G. Rice, LAW OFFICES OF
STEVEN M. GARVER, P.C., Reston, Virginia, for Appellant. Benja-
min W. Glass, III, VIRGINIA TRIAL LAWYERS ASSOCIATION,
Richmond, Virginia, for Amicus Curiae.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Christian P. Nielson, the plaintiff-appellant in this Virginia medical
malpractice case, appeals from a grant of summary judgment by the
district court dismissing his action on the ground that it was barred
by the two year statute of limitations. We reverse and remand for the
reasons hereinafter set forth.

I.

Nielson's cause of action arose as a result of alleged medical mal-
practice on the part of the defendant-appellee, Richard L. Gaertner,
M.D., occurring between January 16 and March 1, 1991. Pursuant to
Virginia Code § 8.01-581.2,1 Nielsen filed his notice of claim on Jan-
_________________________________________________________________
1 Prior to its amendment in 1993, former Code § 8.01-581.2 provided
in part:

          No action may be brought for malpractice against a health care
          provider unless the claimant notifies the health care provider in
          writing . . . prior to commencing the action. . . . The claimant or
          health care provider may within sixty days of such notification
          file a written request for a review by a medical malpractice
          review panel . . . . No actions based on alleged malpractice shall
          be brought within ninety days of the notification by the claimant
          to the health care provider and if a panel is requested within the
          period of review by the medical review panel.

See Virginia Medical Malpractice Act, Code of Virginia, 1950, § 8.01-
581.1 et seq. (hereinafter "Code").

Effective July 1, 1993, the section was amended to delete the require-
ment that a notice of claim had to be filed prior to the bringing of a mal-
practice suit against a health care provider.

                     2
uary 11, 1993. On February 17, 1993, a request for a Medical Mal-
practice Review Panel was filed with the Chief Justice of the Virginia
Supreme Court. The Chief Justice appointed such a panel on March
24, 1993. On April 7, 1993, the Virginia General Assembly repealed
Code § 8.02-581.9 -- which tolled the statute of limitations for 120
days from the date of a notice of claim or for 60 days from the date
of a medical review panel's opinion -- effective July 1, 1993.2

Beginning in April and continuing until August 30, 1993, the par-
ties engaged in discovery, with the panel chairman issuing periodic
orders relating to the case. On September 9, 1993, the panel held a
hearing and announced its opinion, and on November 3, 1993, Niel-
sen filed this lawsuit. Gaertner then asserted that Nielsen's claim was
barred by the two year statute of limitations,3 arguing that although
the statute had been tolled before the repeal of Code § 581.9, it began
to run again on July 1, 1993 (the effective date of the amendment and
the repeal), leaving one month and 20 days in which Nielsen had to
file his claim, i.e. until August 20, 1993. According to Gaertner, the
repeal was to be applied retroactively, thus barring Nielsen's claim,
while Nielsen contended that the repeal should not be given retroac-
tive effect, so that his filing on November 3, 1993, was timely.

The district court agreed with Gaertner's position and granted sum-
mary judgment in his favor, holding that Nielsen's claim was barred
by the two year statute of limitations and that the facts did not estab-
_________________________________________________________________

2 Prior to its July 1, 1993 repeal, this section provided in part:

          The giving of notice of a claim pursuant to § 8.02-581.2 shall toll
          the applicable statute of limitations for a period of 120 days from
          the date such notice is given, or for 60 days following the date
          of issuance of any opinion by the medical review panel, which-
          ever is later.

3 Apparently the parties do not disagree that the two year limitation of
Code § 8.02-243(A) is applicable; their dispute centers around the legal
effect of the 1993 amendment to Code § 8.02-581.2, eliminating the
requirement for a notice of claim, and of the repeal of Code § 8.01-581.9
and its tolling provisions.

                     3
lish a "miscarriage of justice," warranting application of the tolling
provision pursuant to Code § 8.01-1.4 (JA 120-126).

Nielsen then appealed to this court. Following oral argument in
January 1995, we filed with the Supreme Court of Virginia an order
dated August 30, 1995, requesting that that court answer the certified
question. See Va. Const. art. VI, § 1; Va. S. Ct. R. 5:42. The question
certified read as follows:

          Whether the repeal of Va. Code §8.01-581.9, effective
          July 1, 1993, applies retroactively to a cause of action in
          which notice of a claim under the former § 581.2 was given
          on January 11, 1993; a medical malpractice review panel
          was appointed on March 24, 1993; discovery was conducted
          from April until August, 1993; and a hearing was held and
          panel decision rendered on September 9, 1993? To answer
          this question, the court may need to consider the following
          issues:

          1. Whether Va. Code § 8.01-2, which addresses the retro-
          active application of statutes, applies to this case, or whether
          case law under Dye v. Staley, 307 S.E.2d 237 (Va. 1983)
          and Turner v. Wexler, 418 S.E.2d 886, 887 (Va. 1992),
          establishing that medical malpractice claims are governed
          by the law as it exists when the cause of action accrues, gov-
          erns this case?

         a. If Va. Code § 8.01-1 governs, whether the
         repealed statute involves procedural, substantive,
         or vested rights?
_________________________________________________________________
4 Code § 8.01-1 provides in part as follows:

          [A]ll provisions of this title shall apply to causes of action which
          arose prior to the effective date of any such provisions; provided,
          however, that the applicable law in effect on the day before the
          effective date of the particular provisions shall apply if in the
          opinion of the court any particular provision (i) may materially
          change the substantive rights of a party (as distinguished from
          the procedural aspects of the remedy) or (ii) may cause the mis-
          carriage of justice.

(Emphasis added.)

                     4
          2. Whether the general presumption of Virginia law
          against the retroactive application of statutes applies in the
          absence of express legislative intent that a statute be applied
          retroactively?

On November 3, 1995, the Virginia Supreme Court found that it
was unnecessary for it to respond to our certified question, opining
"that there is controlling precedent in the decisions of this Court on
the question certified. See Cumberland v. Boone , Record No. 941923,
decided September 15, 1995."5 We subsequently obtained supplemen-
tal briefs from the parties addressing Cumberland v. Boone, and the
case is now ripe for decision.

II.

A.

With reference to our standard of review, a summary judgment is
reviewed de novo on appeal. Jackson v. Kimel, 992 F.2d 1318, 1322
(4th Cir. 1993). Summary judgment is appropriate where there is no
genuine dispute as to a material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c). Here, there is
no disagreement as to the essential facts.

B.

Cumberland v. Boone, the decision of the Virginia Supreme Court
referred to by it as controlling authority in this case, was consolidated
with Harris v. DiMattina, and the opinion deciding the two cases is
found at 462 S.E.2d 338 (Va. 1995). The facts in Cumberland are
strikingly similar to the facts in our case. Cumberland asserted that he
was injured during surgery performed on November 27, 1990, and
during follow-up care which continued through January 9, 1991. He
filed a notice of claim on December 2, 1992, alleging medical mal-
practice committed by defendant Boone and other doctors and health
care providers. Some of the defendants then requested a medical mal-
_________________________________________________________________
5 We point out that our request for certification was filed before the
Virginia Supreme Court announced its decision in Cumberland, as was
the district court opinion in this case.

                    5
practice review panel. A review panel was appointed and held a hear-
ing and rendered its opinion on September 10, 1993. On November
4, 1993, Cumberland filed a motion for judgment against Boone, who
filed a special plea asserting that Cumberland's action was barred by
the two year statute of limitations. Boone argued that under Code
§ 8.01-1, see footnote 4, the repeal of former Code § 8.01-581.9
(referred to by the Virginia Supreme Court as the repeal provision)
applied to Cumberland's cause of action. He contended that, once the
tolling provisions of former Code § 8.01-581.9 were repealed, Cum-
berland was required to file his motion for judgment within the unex-
pired portion of the two year limitation period. The trial court granted
the motion to dismiss for the reasons advanced by Boone, saying,
"with the repeal of . . . Code [§] 8.01-581.9[,] plaintiff's Motion for
Judgment is barred by the statute of limitations." 462 S.E.2d at 340.

Thus, under the then existing law, § 8.01-581.2, both Nielsen and
Cumberland were initially prohibited from filing their claims until the
notice and review provisions were completed. Each filed a timely
notice of claim. In each case, a request for the appointment of a medi-
cal review panel was made, a panel was appointed, and the panels
held hearings and rendered opinions. The problem presented in each
case arose because the Virginia legislature amended or repealed the
applicable Code sections, effective July 1, 1993, after the notices of
claim were filed and the medical review panels were appointed and
were functioning, but before the panels held hearings, rendered opin-
ions, or the respective plaintiffs filed their complaints.6

III.

In resolving the legal issue in Cumberland, the Virginia Supreme
Court turned first to the question of whether the statutory provisions
under scrutiny are procedural in nature. In describing why this is
important, it referred to its opinion in Morrison v. Bestler, 387 S.E.2d
753 (Va. 1990), where, after pointing out that it had described the
_________________________________________________________________
6 Under the amended law, a plaintiff is allowed to file his complaint
first, and then either party can request a review panel, with the action at
law being stayed until the medical review panel completes its work and
renders its opinion.

                    6
notice of claim and the tolling provisions as procedural in nature, the
court stated:

          . . . [T]he Virginia General Assembly has enacted certain
          procedures for the prosecution of [medical malpractice
          claims]. These procedures include the notice of claim, a
          waiting period for filing suit, the right to a malpractice
          review panel prior to a court proceeding, use of the opinion
          of the panel, and extensions of statutory filing limitations
          under certain conditions.

...

          All these procedural requirements . . . were formulated to
          provide the defendant with adequate notice of the nature of
          the claim, to assist the parties in case preparation, and to
          encourage settlement prior to trial.

Harris, 462 S.E.2d at 340 (quoting Morrison , 387 S.E.2d at 757); see
also Hewitt v. Virginia Health Servs. Corp., 391 S.E.2d 59, 60 (Va.
1990). The Morrison court then held that the"former Code §§ 8.01-
581.2 and -581.9, as well as the repeal provision, are procedural in
nature, since they control only the method of obtaining redress or
enforcement of rights and do not involve the creation of duties, rights,
and obligations." Id. at 340 (citations omitted).

Because these code sections prescribed only the procedural aspects
of a remedy, the court stated that the legislature could amend or
repeal them at will, "as long as reasonable opportunity and time were
provided to preserve substantive or vested rights." Id. at 340 (citations
omitted). Being procedural rather than substantive in nature, these
former statutes created no vested rights in a plaintiff at the time his
cause of action accrued.

The court then considered whether Cumberland's case fell within
the statutory exception of Code § 8.01-1, see footnote 4. Asking
whether Cumberland had demonstrated a miscarriage of justice, the
court identified that question as dispositive of the appeal.

                     7
It was pointed out that when Cumberland gave his notice of claim,
the former Code § 8.01-581.2 prohibited him from filing a motion for
judgment until after the applicable statutory time period had expired.
462 S.E.2d at 343. This potential adverse effect on his right to bring
suit was remedied by the tolling provisions of former Code § 8.01-
581.9. Before July 1, 1993, such a plaintiff retained the tolling bene-
fits of former Code § 8.01-581.9. Id. The Virginia Supreme Court
went on to say:

          We believe that application of the repeal provision to Cum-
          berland's case would disrupt this carefully balanced statu-
          tory scheme and subject Cumberland to the disadvantage of
          the former notice of claim requirement, while denying him
          the intended compensatory benefit of the former tolling pro-
          visions. We conclude that such a result would constitute a
          miscarriage of justice.

          As we stated in Baker [v. Zirkle, 307 S.E.2d 234, 236-37
          (Va. 1983)], former Code § 8.01-581.9 was enacted by the
          General Assembly, "[i]n an obvious effort to compensate for
          [the] restrictions upon a claimant's usual free access to the
          courts and to provide relief from an otherwise harsh applica-
          tion of the statute of limitations." . . . 307 S.E.2d at 236-37.
          Our decision here employs that compensatory statute to pre-
          vent the imbalance in remedy that would otherwise result
          from application of the repeal provision.

Id. (citation omitted).

After recognizing that the legislature could have enacted a saving
clause in its repeal of the tolling provisions, but asserting that its fail-
ure to do so does not dictate a different result, the Virginia Supreme
Court continued:

          Code § 8.01-1 imposes a duty on the trial court to prevent
          a manifest injustice in the application of a new provision of
          law.

          This duty is not dependent on the presence of a saving
          clause in the new provision of law; in fact, the need to exer-
          cise this statutory duty is most plainly manifest in a case
          such as this, when no saving clause was enacted to preserve
          the original statutory balance. Therefore, we hold that a

                      8
          plaintiff who has given a notice of claim prior to July 1,
          1993, pursuant to former Code § 8.02-581.2, is entitled to
          the compensatory benefit of the tolling provisions of former
          Code § 8.01-581.9.

          . . . Thus, application of former Code § 8.01-581.9 does not
          divest Boone of any property right already accrued before
          July 1, 1993.

Id. at 343-44.

For these reasons, the Virginia Supreme Court reversed the trial
court's judgment dismissing Cumberland's appeal as barred by the
two year statute of limitations, and remanded the case to the trial
court for further proceedings consistent with its opinion.

We have carefully considered the issues in this case and are unable
to distinguish either the facts or the law herein from the facts and law
in Cumberland. We agree with the Virginia Supreme Court that
Cumberland is indeed controlling authority in this case and accord-
ingly we hold that the district court erred in granting summary judg-
ment in favor of Gaertner.

IV.

For the reasons hereinabove set forth, the decision of the district
court is reversed and the case is remanded to the district court for pro-
ceedings not inconsistent with this opinion.7

REVERSED AND REMANDED
_________________________________________________________________

7 Our conclusion that Cumberland controls here is buttressed by the
Virginia Supreme Court's disposition of the consolidated case of Harris
v. DiMattina, supra. Harris alleged that she sustained injuries from medi-
cal malpractice on July 15, 1991. She mailed her notice of claim on July
13, 1993 (after the effective date of the amendment and repeal). Neither
party ever requested a medical review panel. On October 26, 1993, Har-
ris filed her motion for judgment and Dr. DiMattina filed a motion to dis-
miss, relying on the two year statute of limitations. The trial court
granted DiMattina's motion and the Virginia Supreme Court affirmed,
holding that Harris was not entitled to rely on the tolling provisions of
Code § 8.01-581.9. 462 S.E.2d at 342.

                     9
