                            COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Haley
Argued at Chesapeake, Virginia


MARYVIEW HOSPITAL, T/A
 MARYVIEW MEDICAL CENTER

v.     Record No. 1277-08-1

LATISHA WOODARD, ADMINISTRATRIX OF
 THE ESTATE OF JALIYAH N. LEE

NICOLA M. DAVIES, M.D.,                                                 OPINION BY
 EASTERN VIRGINIA MEDICAL SCHOOL,                                   JUDGE LARRY G. ELDER
 EVMS ACADEMIC PHYSICIANS AND                                           APRIL 28, 2009
 SURGEONS HEALTH CARE FOUNDATION AND
 GHENT FAMILY PRACTICE

v.     Record No. 1316-08-1

LATISHA WOODARD, ADMINISTRATRIX OF
 THE ESTATE OF JALIYAH N. LEE AND
 VIRGINIA BIRTH-RELATED
 NEUROLOGICAL INJURY COMPENSATION FUND


           FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

              Daniel M. Kincheloe (N. Beth Dorsey; Paul T. Walkinshaw;
              Hancock, Daniel, Johnson & Nagle, P.C., on briefs), for appellant
              Maryview Hospital, t/a Maryview Medical Center.

              Terry L. Jenkins (Glen A. Huff; Huff, Poole & Mahoney, P.C., on
              briefs), for appellants Nicola M. Davies, M.D., Eastern Virginia
              Medical School, EVMS Academic Physicians and Surgeons Health
              Services Foundation and Ghent Family Practice.

              Charles B. Lustig (Stephen C. Swain; Johnny S. Joannou;
              Shuttleworth, Ruloff, Swain, Haddad & Morecock, P.C.; Joannou,
              Knowles & Associates, on brief), for appellee Latisha Woodard,
              Administratix of the Estate of Jaliyah N. Lee.

              No brief or argument for appellee Virginia Birth-Related
              Neurological Injury Compensation Fund.
       Maryview Hospital, t/a Maryview Medical Center and Nicola M. Davies, M.D., Eastern

Virginia Medical School, EVMS Academic Physicians and Surgeons Health Care Foundation,

and Ghent Family Practice (hereinafter collectively appellants) appeal from a ruling of the

Workers’ Compensation Commission (the commission) with respect to the claim of Latisha

Woodard, administratrix of the estate of deceased infant Jaliyah N. Lee, rendered pursuant to the

Virginia Birth-Related Neurological Injury Compensation Act (the Act). Appellants contend the

commission improperly concluded that if it found the infant sustained birth-related neurological

injuries, it lacked jurisdiction under the Act to determine whether such injuries were caused by

intentional or willful conduct of the appellants. They argue the commission erred in ordering

that the claim based on willfulness be referred to the circuit court. Because the commission

ruled only that the “willful” portion of the claim would not be allowed to proceed before the

commission and did not rule on the merits of the portion of the claim it held was properly before

it—whether the infant suffered a birth-related neurological injury caused by appellants—we hold

the commission’s determination was not an appealable interlocutory order, and we dismiss the

appeals without prejudice.

                                                I.

                                        BACKGROUND

       At Maryview Hospital on November 21, 2002, following a difficult labor, Latisha

Woodard gave birth to infant Jaliyah Lee. The infant was placed on life support, and on

December 2, 2002, Jaliyah was removed from life support and died, allegedly as a result of

injuries sustained during birth. Woodard filed a motion for judgment against appellants 1 in the

Portsmouth Circuit Court. The motion for judgment included allegations that appellants “acted


       1
         Also named as defendants were Olugbenga S. Oredein, M.D., and Chesapeake
OB/GYN and Associates, Inc., but they did not file a timely appeal of the commission’s decision
in this matter.
                                            -2-
willfully, wantonly and recklessly in a grossly negligent and careless manner so as to evince a

conscious disregard for the rights and safety of others, including Jaliyah and her parents,” and

the motion sought compensatory and punitive damages.

        Appellants responded that they were participating providers under the Act as defined in

Code § 38.2-5001. Based on that status and pursuant to Code § 8.01-273.1, they moved to have

the cause of action stayed in the circuit court and referred to the commission for purposes of

determining whether the cause of action satisfied the Act, in the apparent hope of limiting

Woodard to the remedies provided for under the Act, as set out in Code § 38.2-5002(B).

Woodard opposed the referral, arguing the exception of Code § 38.2-5002(C) for “intentionally

or willfully caus[ing] or intend[ing] to cause a birth-related neurological injury” applied. As a

result, she contended she was entitled to proceed with her civil suit in the circuit court.

        Following argument on this issue, the circuit court ruled “the Commission has ‘exclusive

jurisdiction to decide whether an infant’s claim lies within the purview of the Act[,]’ Berner v.

Mills, 265 Va. 408, 411, 579 S.E.2d 159, 160 (2003),” and that Code § 8.01-273.1 compelled it

to refer the case to the commission for this determination as a result of appellants’ requests for

referral. The circuit court also concluded “[Woodard’s] assertion that [appellants] in this case

acted willfully and wantonly is unavailing . . . [and] is not enough to deprive the Commission of

jurisdiction.”

        When the matter had been transferred to the commission, Woodard averred the

commission lacked jurisdiction over both the wrongful death claim and the “claim that the

injuries were the result of intentional or wilful [sic] and wanton acts of the [appellants].” She

asked the deputy to “remove the matter” from the commission’s docket and “refer [it] back to the

circuit court for further adjudication with respect to the willful and intentional aspects of the

case.” The deputy denied the motion to the extent Woodard sought referral of the entire claim to

                                                 -3-
the circuit court, but he granted “the portion seeking to refer the claim for injuries alleged to arise

from [appellants’] intentional or willful conduct.” The deputy reasoned as follows:

               The General Assembly has . . . made it clear that the civil courts’
               jurisdiction no longer extends to claims for medical malpractice
               resulting in birth-related neurological injuries while the
               Commission’s jurisdiction does not extend to claims made that
               physicians and hospitals intentionally or willfully caused or
               intended to cause these injuries. The plain language of
               § 38.2-5002(C) contemplates this result, recognizing that if its
               preconditions, filing before a final decision is rendered [by the
               commission] under the Act and no receipt of benefits under the
               Act, are met, a plaintiff may proceed with an action [in circuit
               court] under the common law for an injury to an infant caused by
               intentional or willful conduct.

In a review on the record, the commission unanimously affirmed what it referred to as the

deputy’s “interlocutory” determination.

       Appellants then noted these appeals.

                                                  II.

                                             ANALYSIS

        “‘The Court of Appeals of Virginia is a court of limited jurisdiction.’ Unless a statute

confers subject matter jurisdiction to that court over a class of appeals, [it] is without authority to

review an appeal.” Lewis v. Lewis, 271 Va. 520, 524-25, 628 S.E.2d 314, 316-17 (2006)

(quoting Canova Elec. Contracting, Inc. v. LMI Ins. Co, 22 Va. App. 595, 599, 471 S.E.2d 827,

829 (1996)). Pursuant to Code § 17.1-405(2) and (4), the Court of Appeals has appellate

jurisdiction over any final decision of the Virginia Workers’ Compensation Commission and any

interlocutory decree or order in such a matter involving the granting, dissolving, or denying of

an injunction or “adjudicating the principles of a cause.” Code § 17.1-405(4) (emphasis added).

       A final decree is one “‘which disposes of the whole subject, gives all the relief that is

contemplated, and leaves nothing to be done by the court.’” Erikson v. Erikson, 19 Va. App.

389, 390, 451 S.E.2d 711, 712 (1994) (quoting Southwest Va. Hosps. v. Lipps, 193 Va. 191, 193,
                                                 -4-
68 S.E.2d 82, 83-84 (1951)). Because the commission ruled it “has jurisdiction to entertain the

portion of the claimant’s claim for the decedent’s [alleged] birth-related neurological injuries

alleged to arise from the physicians[’] and hospital’s medical malpractice” but has not held a

hearing or made a decision resolving that portion of the claim, manifestly its ruling is an

interlocutory order rather than a final order.

       For an interlocutory order to be held to have “adjudicat[ed] the principles of a cause,”

Code § 17.1-405(4), as required for immediate appeal,

               the decision must be such that “‘the rules or methods by which the
               rights of the parties are to be finally worked out have been so far
               determined that it is only necessary to apply those rules or methods
               to the facts of the case in order to ascertain the relative rights of the
               parties, with regard to the subject matter of the suit.’” Pinkard v.
               Pinkard, 12 Va. App. 848, 851, 407 S.E.2d 339, 341 (1991)
               (quoting Lee v. Lee, 142 Va. 244, 252-53, 128 S.E. 524, 527
               (1925)). . . . “‘The mere possibility’ that an interlocutory decree
               ‘may affect the final decision in the trial does not necessitate an
               immediate appeal.’” Polumbo v. Polumbo, 13 Va. App. 306, 307,
               411 S.E.2d 229, 229 (1991) (quoting Pinkard, 12 Va. App. at 853,
               407 S.E.2d at 342).

Erickson, 19 Va. App. at 391, 451 S.E.2d at 712-13.

       Applying these principles in Alliance to Save the Mattaponi v. Virginia Marine

Resources Commission, 43 Va. App. 724, 726, 601 S.E.2d 684, 685 (2004), we held that a

circuit court’s order denying a request for intervention is not an appealable interlocutory order.

In Lewis v. Lewis, 271 Va. 520, 526-28, 628 S.E.2d 314, 318 (2006), the Supreme Court held

that, in a suit for divorce, an interlocutory order dismissing a cross-bill but leaving the original

bill for adjudication is not an appealable order. In City of Richmond-Fire & Emergency v.

Brandon, 32 Va. App. 787, 789, 531 S.E.2d 22, 22-23 (2000), we held that an order of one of the

commission’s deputies denying a request for issuance of a subpoena duces tecum also was not an

appealable interlocutory order because it did not “adjudicate the underlying cause.” We further

noted that although the commission might have discretionary authority to conduct an
                                                 -5-
interlocutory review of the evidentiary ruling of one of its deputies, the ruling was not an

interlocutory decision appealable to the Court of Appeals. Id. Thus, in Alliance, Lewis, and

Brandon, we lacked authority to consider the appeal. See Alliance, 43 Va. App. at 726, 601

S.E.2d at 685, cited with approval in Lewis, 271 Va. at 528 n.5, 628 S.E.2d at 319 n.5

(recognizing an adverse interlocutory adjudication may be the subject of an appeal from a final

adjudication); Brandon, 32 Va. App. at 789, 531 S.E.2d at 22-23.

       Similarly, here, the commission’s determination that it lacked jurisdiction to consider the

portion of the claim “that the [infant’s] injuries were the result of intentional or wil[l]ful and

wanton acts of the [appellants]” was not an appealable order because it did not “adjudicate the

underlying cause.” Brandon, 32 Va. App. at 789, 531 S.E.2d at 22. Instead, the effect of the

order was much like the denial of the motion to intervene in Alliance, the denial of the motion

for issuance of a subpoena in Brandon, and the dismissal of the cross-bill in Lewis. In each of

those cases, the court or commission had ruled that a particular claimant, claim or method of

discovery would not be permitted as part of the underlying or primary claim, but the underlying

claim had not been resolved. Similarly, here, the order appealed from determined only that the

“willful” portion of the claim would not be allowed to proceed before the commission; the

commission made no ruling on the portion of the claim it held was properly before it—whether

Jaliyah suffered a birth-related neurological injury caused by appellants. “‘The mere possibility’

that the interlocutory decree ‘[might] affect the [commission’s] final decision’” if it were

reversed—by requiring the commission to consider the claim of intentional or willful conduct—

“does not necessitate an immediate appeal.” Polumbo, 13 Va. App. at 307, 411 S.E.2d at 229

(quoting Pinkard, 12 Va. App. at 853, 407 S.E.2d at 342).




                                                 -6-
                                               III.

       The commission ruled only that the “willful” portion of Woodard’s claim would not be

allowed to proceed before the commission. The commission did not rule on the portion of the

claim it held was properly before it—whether the infant suffered a birth-related neurological

injury caused by appellants. For this reason, we hold the commission’s determination was not an

appealable interlocutory order, and we dismiss the appeals without prejudice. 2

                                                                               Appeals dismissed.




       2
         Upon our dismissal of these appeals, the commission shall proceed to address the
underlying issue of whether the infant suffered a birth-related neurological injury caused by
appellants.
                                               -7-
