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Nunnally v. Dr. AVIS Adriena Artis9/12/1997
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
I.
In this appeal, we consider whether to overrule our decision in Scarpa v. Melzig, 237 Va. 509, 379 S.E.2d 307 (1989), holding that in an action for wrongful conception, the statute of limitations begins to run when the health care provider negligently performs the ineffective sterilization procedure.
II.
A.
On October 18, 1995, Valerie R. Nunnally filed her motion for judgment against Danville Memorial Hospital and Dr. Avis A. Artis, and alleged the following. Nunnally decided to have a sterilization because any subsequent pregnancies would have been detrimental to her health. Dr. Artis, the Hospital's purported agent, negligently performed a tubal ligation upon her on February 6, 1989. Nunnally became pregnant on November 1, 1993, and she gave birth to a healthy child. She "experienced a foreseeable traumatic delivery with consequent adhesions and other related medical problems." The defendants filed special pleas in bar, asserting that Nunnally's action is barred by the applicable statute of limitations. The trial court entered a judgment sustaining the defendants' pleas, and we awarded Nunnally an appeal.
B.
Code § 8.01-243(A) provides, in pertinent part, that "every action for personal injuries, whatever the theory of recovery . . . shall be brought within two years after the cause of action accrues." Code § 8.01-230 provides, in relevant part, that " n every action for which a limitation period is prescribed, the cause of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person . . . ."
Nunnally argues that the trial court erred in granting the defendants' special pleas of the statute of limitations. Nunnally contends that she pled a cause of action for wrongful conception, that her cause of action did not accrue until she was injured, that her injury occurred at conception and, hence, that the statute of limitations did not begin to run until November 1, 1993, the date she conceived her child. Thus, Nunnally urges us to overrule our decision in Scarpa v. Melzig, supra. The defendants respond that Nunnally's cause of action accrued on February 6, 1989, the date the sterilization procedure was performed and, thus, her action is barred by the two-year statute of limitations.
In Scarpa v. Melzig, we considered whether the trial court erred in ruling that a plaintiff's medical malpractice action was barred by the two-year statute of limitations. JoAnn C. Scarpa filed an action against her physicians, Eric P. Melzig and Wanda L. Radford. In June 1975, Scarpa was hospitalized under the care of Melzig for treatment of a pelvic infection. Melzig removed certain tissue and body structures from Scarpa's body during an operation. Melzig erroneously recorded in a written operative report that he had removed Scarpa's left fallopian tube when, in fact, the left fallopian tube was not among the structures removed. Melzig signed a hospital discharge summary which also erroneously indicated that Scarpa's left fallopian tube had been removed.
In August 1980, Scarpa was hospitalized under the care of Dr. Radford because Scarpa desired a permanent sterilization. Radford performed the procedure and noted that Scarpa's left fallopian tube was not present when, in fact, the left fallopian tube was present. Thus, Dr. Radford did not ligate, cut upon, or alter Scarpa's left fallopian tube.
Scarpa conceived and became pregnant in March 1984, and a child was born. During an assessment of
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