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Fruiterman v. Waziri


ficient pool of obstetricians practicing throughout the Commonwealth."

The legislative intent is reflected in the legislative history recorded by legislators in the reports of subcommittees of the two Houses of the General Assembly. See Senate Document No. 11 (1987); House Joint Resolution No. 297 (1989); House Document No. 63 (1990); House Joint Resolution No. 641 (1997). See also King v. Neurological Injury Comp. Program, 242 Va. 404, 409-10, 410 S.E.2d 656, 660 (1991) (rejecting constitutional challenge to Compensation Act).

As we have said, the Compensation Act provides that "the rights and remedies herein granted to an infant . . . shall exclude all other rights and remedies of such infant, his personal representative, parents, dependents or next of kin, at common law . . . ." § 38.2-5002(B). "Statutes in derogation of the common law are to be strictly construed and not to be enlarged in their operation by construction beyond their express terms." Schwartz v. Brownlee, 253 Va. 159, 166, 482 S.E.2d 827, 831 (1997) (citation omitted).

The Compensation Act begins with expressly restrictive definitions. A " articipating physician" is "a physician licensed in Virginia to practice medicine, who practices obstetrics or performs obstetrical services", § 38.2-5001, and "a licensed nurse-midwife who performs obstetrical services", id., and pays "an annual participating physician assessment to the Program", § 38.2-5020(A).

"'Participating Hospital' means a hospital . . . which . . . had in force an agreement with the Commissioner of Health . . . to participate in . . . a program to provide obstetrical care to patients eligible for Medical Assistance Services and to patients who are indigent, and . . . had in force an agreement . . . whereby the hospital agreed to submit to review of its obstetrical service . . . and . . . had paid the participating assessment pursuant to § 38.2-5020 . . . ."

"Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed." Barr v. Town and Country Properties, 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990)(quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)).

Clearly, the General Assembly did not intend to immunize all health-care providers from tort liability for birth-related neurological injury caused by medical malpractice. The legislature expressly identified those entitled to that immunity as "participating physicians" and "participating hospitals"; then expressly defined "physicians" as obstetricians and nurse-midwives who perform obstetrical services; and then expressly specified that the term "participating" includes payment of an annual assessment by qualified physicians and hospitals to finance the costs of the benefits provided by the Compensation Program. No such assessment was imposed upon a professional corporation.

In summary, the Compensation Act expressly limits those entitled to its rights and benefits to selected health-care providers and expressly excludes "a nonparticipating physician or hospital." § 38.2-5002(D). The legislative omission of other health-care providers serving during the course of child birth, such as pediatricians, radiologists, and medical partnerships, confirms our conclusion that participating physicians and hospitals were intended to be the only health-care providers afforded immunity from civil liability by the Compensation Act. A professional corporation, the employer of a participating physician, is conspicuous by its absence.


In support of a second assignment of error, the

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