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    Christian P. Nielsen v. Richard L. Gaertner, M.D., Virginia Trial Lawyers Association, Amicus Curiae, 96 F.3d 110, 4th Cir. (1996)

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    This document summarizes a 1996 appellate court case regarding whether the repeal of a Virginia statute that had tolled the statute of limitations for medical malpractice claims applied retroactively. 1) The plaintiff filed a timely notice of claim in 1993 for medical malpractice occurring in 1991. A review panel was appointed in 1993 and conducted discovery and a hearing, rendering its opinion in September 1993. 2) In April 1993, the Virginia legislature repealed the statute that had tolled the statute of limitations during the medical review process. The defendant argued this meant the plaintiff only had one month to file after the repeal took effect. 3) The appellate court reviewed a similar 1995 Virginia Supreme Court case and determined the repealed

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    Christian P. Nielsen v. Richard L. Gaertner, M.D., Virginia Trial Lawyers Association, Amicus Curiae, 96 F.3d 110, 4th Cir. (1996)

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    This document summarizes a 1996 appellate court case regarding whether the repeal of a Virginia statute that had tolled the statute of limitations for medical malpractice claims applied retroactively. 1) The plaintiff filed a timely notice of claim in 1993 for medical malpractice occurring in 1991. A review panel was appointed in 1993 and conducted discovery and a hearing, rendering its opinion in September 1993. 2) In April 1993, the Virginia legislature repealed the statute that had tolled the statute of limitations during the medical review process. The defendant argued this meant the plaintiff only had one month to file after the repeal took effect. 3) The appellate court reviewed a similar 1995 Virginia Supreme Court case and determined the repealed

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    Filed: 1996-09-18 Precedential Status: Precedential Citations: 96 F.3d 110 Docket: 94-1702

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    This document summarizes a 1996 appellate court case regarding whether the repeal of a Virginia statute that had tolled the statute of limitations for medical malpractice claims applied retroactively. 1) The plaintiff filed a timely notice of claim in 1993 for medical malpractice occurring in 1991. A review panel was appointed in 1993 and conducted discovery and a hearing, rendering its opinion in September 1993. 2) In April 1993, the Virginia legislature repealed the statute that had tolled the statute of limitations during the medical review process. The defendant argued this meant the plaintiff only had one month to file after the repeal took effect. 3) The appellate court reviewed a similar 1995 Virginia Supreme Court case and determined the repealed

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    Christian P. Nielsen v. Richard L. Gaertner, M.D., Virginia Trial Lawyers Association, Amicus Curiae, 96 F.3d 110, 4th Cir. (1996)

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    Scribd Government Docs
    This document summarizes a 1996 appellate court case regarding whether the repeal of a Virginia statute that had tolled the statute of limitations for medical malpractice claims applied retroactively. 1) The plaintiff filed a timely notice of claim in 1993 for medical malpractice occurring in 1991. A review panel was appointed in 1993 and conducted discovery and a hearing, rendering its opinion in September 1993. 2) In April 1993, the Virginia legislature repealed the statute that had tolled the statute of limitations during the medical review process. The defendant argued this meant the plaintiff only had one month to file after the repeal took effect. 3) The appellate court reviewed a similar 1995 Virginia Supreme Court case and determined the repealed

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    of 8

    96 F.

    3d 110

    Christian P. NIELSEN, Plaintiff-Appellant,


    v.
    Richard L. GAERTNER, M.D., Defendant-Appellee.
    Virginia Trial Lawyers Association, Amicus Curiae.
    No. 94-1702.

    United States Court of Appeals,


    Fourth Circuit.
    Argued Jan. 30, 1995.
    Decided Sept. 18, 1996.

    ARGUED: Steven Mark Garver, Law Offices of Steven M. Garver, P.C.,


    Reston, VA, for Appellant. John J. Brandt, Slender, Brandt, Jennings &
    Johnston, Merrifield, VA, for Appellee. ON BRIEF: Cheryl G. Rice, Law
    Offices of Steven M. Garver, P.C., Reston, VA, for Appellant. Benjamin
    W. Glass, III, Virginia Trial Lawyers Association, Richmond, VA, for
    Amicus Curiae.
    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.
    OPINION
    ERVIN, Circuit Judge:

    Christian P. Nielsen, 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.

    Nielsen's cause of action arose as a result of alleged medical malpractice 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 January 11, 1993. On February 17, 1993, a
    request for a Medical Malpractice 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 8.01-581.9--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 parties 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, Nielsen 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 retroactive effect, so that his filing on November 3,
    1993, was timely.

    The district court agreed with Gaertner's position and granted summary
    judgment in his favor, holding that Nielsen's claim was barred by the two year
    statute of limitations and that the facts did not establish 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 retroactive application of


    statutes, applies to this case, or whether case law under Dye v. Staley, [226 Va.
    15], 307 S.E.2d 237 (Va.1983) and Turner v. Wexler, [244 Va. 124], 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, governs this
    case?

    a. If Va.Code 8.01-1 governs, whether the repealed statute involves


    procedural, substantive, or vested rights?

    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, 250 Va. 306, 462 S.E.2d 338
    (1995)."5 We subsequently obtained supplemental briefs from the parties
    addressing Cumberland v. Boone, and the case is now ripe for decision.

    II.
    A.
    10

    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.
    11

    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 250 Va. 306, 462
    S.E.2d 338 (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 malpractice committed by defendant Boone and other doctors and
    health care providers. Some of the defendants then requested a medical
    malpractice review panel. A review panel was appointed and held a hearing
    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,
    Cumberland was required to file his motion for judgment within the unexpired
    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.
    12

    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 medical 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 opinions, or the
    respective plaintiffs filed their complaints.6

    III.
    13

    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, 239 Va. 166, 387 S.E.2d 753 (1990), where,
    after pointing out that it had described the 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.

    .....
    14
    15 these procedural requirements ... were formulated to provide the defendant with
    All
    adequate notice of the nature of the claim, to assist the parties in case preparation,
    and to encourage settlement prior to trial.

    16

    Harris, 462 S.E.2d at 340 (quoting Morrison, 387 S.E.2d at 757); see also
    Hewitt v. Virginia Health Servs. Corp., 239 Va. 643, 391 S.E.2d 59, 60 (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. 462 S.E.2d at 340 (citations
    omitted).

    17

    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.

    18

    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.

    19

    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 benefits of former Code 8.01-581.9. Id. The Virginia
    Supreme Court went on to say:

    20 believe that application of the repeal provision to Cumberland's case would


    We
    disrupt this carefully balanced statutory 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 provisions. We conclude that
    such a result would constitute a miscarriage of justice.
    21 we stated in Baker [v. Zirkle, 226 Va. 7, 307 S.E.2d 234, 236-37 (1983) ], former
    As
    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 application of the statute of limitations." ...
    307 S.E.2d at 236-37. Our decision here employs that compensatory statute to
    prevent the imbalance in remedy that would otherwise result from application of the
    repeal provision.

    22

    Id. (citation omitted).

    23

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

    24 8.01-1 imposes a duty on the trial court to prevent a manifest injustice in the
    Code
    application of a new provision of law.
    25 duty is not dependent on the presence of a saving clause in the new provision of
    This
    law; in fact, the need to exercise 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 plaintiff who has given a notice of claim prior to
    July 1, 1993, pursuant to former Code 8.01-581.2, 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.
    26

    Id. 462 S.E.2d at 343-44.

    27

    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.

    28

    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 accordingly we hold that the
    district court erred in granting summary judgment in favor of Gaertner.

    IV.
    29

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

    30

    REVERSED AND REMANDED.

    Prior to its amendment in 1993, former Code 8.01-581.2 provided in part:

    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 requirement that a
    notice of claim had to be filed prior to the bringing of a malpractice suit against
    a health care provider.

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


    The giving of notice of a claim pursuant to 8.01-581.2 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, whichever is later.

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

    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 miscarriage of
    justice.
    (Emphasis added.)

    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

    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

    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 medical 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, Harris filed her motion for
    judgment and Dr. DiMattina filed a motion to dismiss, 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

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