Women’s Healthcare Associates, Inc. v. Mucci, — S.E.2d — (Va.App. 2015)
Virginia’s Birth–Related Neurological Injury Compensation Act of 1987 (BRNICA) affords aggrieved patients a no-fault compensation remedy for qualified injuries while giving potential tort defendants – doctors and hospitals who choose to participate in the Birth–Related Neurological Injury Compensation Fund – an absolute immunity from malpractice liability. Va. Code Ann. § 38.2-5002. For a parallel Florida statute, see Fla. Stat. § 766.302. Participation in this program is optional for both patients and care providers. The program compensates injured children for disability damages not covered by the government, health benefit plans, and private insurance. Pain, suffering, and other noneconomic damages are noncompensable (in Florida, they are capped at a low amount). By electing to receive treatment from a participating provider, the patient commits herself and her future child to pursue any compensation claim for birth-related neurological injury before a special administrative tribunal and automatically waives the right to bring a medical malpractice lawsuit against the participating physician or hospital. Wolfe v. Va. Birth–Related Neurological Injury Comp. Program, 580 S.E.2d 467, 476 (Va. 2003).
Because injury claims adjudicated by the tribunal do not depend upon medical malpractice, the tribunal’s decisions need not be reported to the National Practitioner Data Bank pursuant to the Health Care Quality Improvement Act of 1986. This Act, 42 U.S.C. § 11131, only requires reporting of payments “under a policy of insurance, self-insurance, or otherwise in settlement (or partial settlement) of, or in satisfaction of a judgment in, a medical malpractice action or claim.”
The scope of BRNICA’s coverage is consequently of paramount importance for patients, doctors, and hospitals. Virginia’s appellate court’s decision in Women’s Healthcare Associates, Inc. v. Mucci clarifies this scope.
This decision distinguished between a newborn’s neurological injuries from labor complications and injuries suffered by his mother that included damaged uterus, physical pain and related emotional distress. The court held that the BRNICA program covers only the newborn’s injuries. The mother’s injuries, it explained, are “separate and distinct” and therefore fall outside the program’s scope.
In making this precedential decision, the court relied on Va. Code Ann. § 38.2–5002(B). According to this provision, the program’s scope “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.” This provision allows mothers to file medical-malpractice actions for any personal injury not originating from the injury to the child. In Mucci, the mother’s injuries squarely fell into the “separate and distinct” category because they “did not occur “but for” the birth-related neurological injury to her son,” but “could have also occurred with the delivery of an otherwise healthy child.”
The mother was consequently free to sue her doctors for medical malpractice, but she would not be able to include in her suit any claim for emotional damages resulting from her son’s injury. Any such derivative claim will be barred by BRNICA because it is included in the patient’s waiver.
This decision was unquestionably correct, but it still leaves one serious problem unresolved. The mother’s emotional harm was a combined product of her child’s neurological condition and her own injuries. With these injuries being a substantial factor responsible for her indivisible emotional harm, the mother can now sue her doctors for the full amount of that harm notwithstanding her prior waiver under BRNICA. Courts adjudicating such malpractice suits would now have to alter the common law doctrine of causation in a way that accounts for the plaintiff’s BRNICA waiver. As part of that reform, they would need to develop a method of valuating the child-related – and hence noncompensable – fraction of the mother’s emotional harm. Developing this method and having jurors implement it properly would be extremely difficult.