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Fruiterman v. Waziri



In this appeal from a judgment entered in a medical malpractice, wrongful death action, the appellant, Jan Paul Fruiterman, M.D. and Associates, P.C., a professional corporation (the P.C.), contends that the trial court erred in denying coverage of the Virginia Birth-Related Neurological Injury Compensation Act, Code § 38.2-5000 et seq. (the Compensation Act), to professional corporations.

Ahmad and Hassini Waziri, individually and as personal representatives of the estate of their son, Syawach, filed an amended motion for judgment entitled "Medical Malpractice-Wrongful Death" against Dr. Fruiterman, individually, and against the P.C. Applying the rights and remedies defined in the Compensation Act, the trial court sustained Dr. Fruiterman's demurrer. The court denied the co-defendant's demurrer on the ground that the rights and remedies of the Compensation Act do not apply to professional corporations. The jury returned a verdict against the P.C. for $750,000 which the court reduced by remittitur to $730,000.

The sufficiency of the evidence of medical malpractice and proximate cause are not in issue on appeal. Expert witnesses called by the plaintiffs testified that Dr. Fruiterman's performance of the fetal delivery by Caesarian section was conducted too late to avoid severe brain damage. In response to medical opinion, the parents agreed to suspend life support systems, and Syawach, their first-born child, died eight days after birth.

The General Assembly enacted Chapter 50 of the Code of Virginia, the Compensation Act, in 1987. That act "established the Virginia Birth-Related Neurological Injury Compensation Program." § 38.2-5002(A). The act provided that, subject to two exceptions , "the rights and remedies herein granted to an infant on account of a birth-related neurological injury shall exclude all other rights and remedies of such infant, his personal representative, parents, dependents or next of kin, at common law or otherwise arising out of or related to a medical malpractice claim with respect to such injury." Id.

The Compensation Act established an "Injury Compensation Fund to finance the . . . Compensation Program." § 38.2-5015. To capitalize that fund, the Compensation Act provided that " physician who otherwise qualifies . . . may become a participating physician in the Program . . . by paying an annual participating physician assessment to the Program in the amount of $5,000", § 38.2-5020(A), and that "a participating hospital with a residency training program . . . may pay an annual participating physician assessment to the Program for residency positions," § 38.2-5020(B). To administer the Compensation Program, " he Virginia Workers' Compensation Commission authorized to hear and pass upon all claims filed pursuant to this chapter", § 38.2-5003, and to "make an award providing compensation for . . . items relative to . . . [a covered] injury," § 38.2-5009.


The principal issue raised by the assignments of error is whether a professional corporation is entitled to the rights and benefits of the Compensation Act. The trial court ruled that it was not. The P.C. contends that the trial court misconstrued legislative intent. We disagree with the P.C.

On brief, the P.C. acknowledges that the Compensation Act was intended to serve several interrelated purposes:

"Enacted in 1987 in direct response to the grossly lessening availability of medical malpractice insurance for obstetricians in the Commonwealth of Virginia, the Compensation Act was intended to assure affordable malpractice insurance and therefore a suf

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