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Fetus Allegedly Injured In Utero Is Patient For Purposes of Application of Virginia’s Statutory Cap on Damages in Med Mal Cases

Simpson v. Roberts
No. 121984 (Supreme Court of Virginia, January 10, 2014)

by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (

In a medical malpractice suit by a minor through her father and next friend for injuries sustained during a doctor's attempt to extract amniotic fluid from the mother by an amniocentesis procedure, the appellate court held that the circuit court did not err in reducing a $7 million jury verdict to the applicable amount of the statutory cap on damages imposed by the Virginia Medical Malpractice Act, Code § 8.01-581.1, et seq. It was correctly determined that the unborn child was a patient of the defendant doctor and that her claim relating to injuries sustained when she was a fetus in utero was subject to the Act's statutory cap on recoverable damages.

The Plaintiff’s mother was referred to the defendant doctor during the third trimester of her pregnancy because the mother had developed gestational diabetes. The defendant doctor performed an amniocentesis to determine whether the Plaintiff’s lungs were mature enough to induce early labor. When the defendant doctor performed the procedure, bleeding occurred. Complications arose from the unsuccessful amniocentesis. Another physician from that practice performed a caesarean section later that day to deliver Plaintiff. Plaintiff was born with damaged kidneys and cerebral palsy. The jury returned a $7 million verdict in Plaintiff’s favor against both physicians and their practice.

The defendants filed a motion to reduce the jury verdict pursuant to Virginia's statutory cap under the Act. Plaintiff opposed the motion as to the amniocentesis doctor and his employer. Plaintiff argued that when the amniocentesis was performed, and when the standard of care was breached, Plaintiff was not a “natural person” because she had not yet been born, and therefore was not a “patient” as defined by the Act. Plaintiff argued that a common law cause of action, rather than a statutory cause of action, against the amniocentesis doctor was proper, and that the statutory cap should not apply. The trial court disagreed. It concluded that the cap applied and reduced the award to $1.4 million under the cap. The trial court held that Plaintiff was the amniocentesis doctor’s patient because at the time she was born alive, she became a “patient” under the Act.

The appellate court agreed. As to whether Plaintiff was a “patient,” the evidence presented at trial was that the amniocentesis was performed, at least in part, for the child’s benefit to determine whether her lungs were developed enough that she could be safely delivered. When the doctor performed this procedure, he was providing health care to Plaintiff and her mother. If Plaintiff had never been born alive, her mother would have been able to recover for the physical and emotional injuries associated with a stillbirth. However, once Plaintiff was born alive, she became a natural person under the Act. Upon birth, she became a patient of the amniocentesis doctor under the Act and had her own claim against the doctor. Under the Act, her claim for negligence included health care provided in utero consistent with the statutory definition. In addition, the definition of “health care” under the Act was sufficient to encompass the medical services that the doctor provided to Plaintiff while she was in utero.

In a concurring opinion, Justice McClanahan agreed that the Act applied to the Plaintiff’s claim against the amniocentesis doctor, but would have held that the Plaintiff became a “patient” as defined by the Act when the doctor performed the alleged negligent amniocentesis—not at the time of birth.