Berner v. Mills

Argued at Alexandria, Virginia JUDGE NELSON T. OVERTON FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Todd Berner, M.D. (Berner) and Primary Care for Women, P.C. (Primary Care) appeal a decision of the Workers' Compensation Commission ruling that it did not have jurisdiction over Primary Care under the Virginia Birth-Related Neurological Injury Compensation Act (""the Act""). Berner and Primary Care contend the commission erred in (1) refusing to apply the April 1, 2000 amendments to Code §§ 8.01-273.1 and 38.2-5001 retroactively to the present case; and (2) granting appellees a double recovery under the Act and the Death by Wrongful Act statutes where the only viable theory of liability against Primary Care was respondeat superior. Finding no error, we affirm. Background On May 28, 1998, Tara Mills gave birth to a son, Nelson Mills (""the decedent""). The decedent remained on life support after his birth through June 7, 1998, at which time life support was discontinued and he died.