Ronda L. Wolfe, on behalf of her infant daughter Taylor Hope Wolfe, appeals a decision from the Virginia Workers' Compensation Commission denying Taylor benefits under the Birth-Related Neurological Injury Compensation Program. The commission concluded that Taylor did not suffer a birth-related brain injury due to oxygen deprivation. Wolfe contests this ruling on several grounds:
1. The commission allegedly erred in its assessment of the evidence regarding a birth-related brain injury.
2. It did not adequately consider that umbilical cord blood gas testing, which she claims should have been performed, could have demonstrated oxygen deprivation.
3. The commission was said to have ignored a supposed concession regarding Wolfe’s entitlement to a presumption under Code § 38.2-5008.
4. The commission failed to sufficiently rebut this presumption by identifying a specific non-birth-related cause of Taylor's injuries.
The Court of Appeals found that the Program did not concede the presumption of entitlement and that there was insufficient evidence to prove Wolfe’s claim without inferring that absent blood gas testing would have shown oxygen deprivation. However, the court acknowledged that such an inference could be valid under certain circumstances. Consequently, the case is remanded to the commission to evaluate whether those circumstances existed and if the evidence, including the potential inference, supports Wolfe’s entitlement to the presumption and benefits. The court affirmed part of the commission's decision, reversed another part, and ordered further proceedings in alignment with its opinion.
Background details include that Taylor was born on January 24, 1998, following a largely uneventful pregnancy and delivery, with no indications of fetal distress during monitoring. Upon birth, Taylor exhibited respiratory difficulties, requiring resuscitation, though she was stable in color and heart rate. Her APGAR scores indicated some distress but were not critically low, and subsequent arterial blood gas tests were normal.
At 10:20 a.m., six hours post-birth, Taylor was noted to be 'pale pink,' with no recorded umbilical cord blood gas measurements. A review of records showed a lack of nurses' flow sheets and delivery records. The day after birth, Taylor experienced seizures that were managed with medication; however, an EEG conducted within 24 hours was normal. Imaging revealed small hemorrhages in both frontal lobes on a CT scan performed at one day old, but these were not present on later MRIs. Testing indicated no multi-organ failure during the neonatal period. Taylor was diagnosed with cerebral palsy, requiring feeding via a gastronomy tube and having no ability to walk or speak.
On March 26, 2001, a claim for benefits was submitted on Taylor's behalf, which was ultimately denied by the Program. While they acknowledged her permanent disabilities, they stated her condition did not stem from a birth-related neurological injury as defined by the Act. Evidence was presented by both parties, with the claimant referencing opinions from pediatric experts who suggested 'probable perinatal anoxic brain injury.' Neurologist Dr. Francis X. Walsh reviewed the records and opined that Taylor likely suffered an anoxic ischemic event during delivery, despite a lack of specific evidence in the delivery records. He noted that the records from the half-hour before delivery were insufficient for conclusive diagnosis.
Dr. Richard T. Welham commented on the absence of immediate postpartum umbilical cord gas tests, which he indicated are critical for determining potential anoxia or asphyxia at birth. He highlighted the discrepancy between a normal fetal heart tracing and Taylor's adverse outcomes, emphasizing the significance of the missing blood gas data.
Obstetrician Dr. Daniel G. Jenkins initially suggested that Taylor qualified for benefits but later retracted that opinion, citing the omission of prematurity as a contributing factor to her condition and the lack of documented evidence for intrapartum asphyxia. He concluded that the cause of Taylor's cerebral palsy remained unknown, thus changing his stance on her eligibility for the fund.
Dr. Troyer concluded that hypoxia sufficient to cause Taylor's neurological injury did not occur during the second stage of Wolfe's labor. She noted that any gaps in fetal heart monitoring were primarily before midnight, with adequate documentation during active labor showing no signs of hypoxia. At 3:58 a.m., when Wolfe entered the second stage, the fetal heart tracing was reactive and indicated no fetal compromise. Monitoring continued intermittently until delivery at 4:27 a.m., with no mention of meconium, which would suggest fetal distress. According to ACOG standards, the monitoring conducted was sufficient in the absence of distress.
Dr. Troyer preferred more detailed fetal heart data but stated that Taylor's pink color at delivery indicated adequate oxygenation. She believed the monitoring showed fetal heart rates in the 120s and 130s, making it unlikely that significant hypoxia occurred. While she acknowledged that using an internal monitor could have been beneficial after Wolfe's water broke, she maintained that external monitoring was appropriate given the absence of distress.
She opined that umbilical cord gas testing is warranted only if there are concerns about the baby's oxygenation during labor. Although she agreed that testing would have been prudent at birth due to observable problems, she reiterated that hypoxia sufficient to explain Taylor's neurological injury did not occur during labor. Dr. Troyer outlined four criteria necessary for a diagnosis of birth asphyxia under ACOG standards: a cord pH less than 7.0, low APGAR scores at five minutes, neurological sequelae, and multi-organ damage. She confirmed that Taylor did not meet the multi-organ damage or APGAR score criteria required for such a diagnosis, and she described the small brain hemorrhages observed as consistent with a normal neonate.
The findings indicate that the absence of hemorrhages and normal MRI results contradict the diagnosis of perinatal asphyxia/hypoxia according to ACOG criteria. A panel of physicians, including Dr. John W. Seeds, concluded that there was no evidence supporting oxygen deprivation during labor or delivery, citing a normal fetal monitor strip, clear amniotic fluid prior to birth, and normal neonatal heart rate and skin color shortly after birth. They emphasized that the lack of umbilical cord pH testing—critical for confirming hypoxemia—does not imply that acidemia was present. The panel expressed uncertainty about the cause of the child's disabilities and stated that the absence of definitive evidence could not support a diagnosis of perinatal oxygen deprivation.
During the hearing, the claimant argued for a spoliation of evidence presumption due to the failure to obtain cord blood gas levels, but the chief deputy commissioner rejected this claim, noting that the delivering physician was not a party to the case. The commission affirmed the denial of benefits by a two-to-one vote, with the majority agreeing that the cause of the child's condition was uncertain. The dissenting opinion contended that the lack of adequate delivery records and cord blood gas testing warranted a presumption that the results would have favored the claimant. The dissent argued that not applying such a presumption due to the physician's non-party status would impose stricter conditions than those in civil malpractice cases.
The Act provides a framework for monetary relief to claimants with birth-related neurological injuries, defined as brain or spinal cord injuries in infants resulting from oxygen deprivation or mechanical injury during labor, delivery, or immediate post-delivery. Such injuries must render the infant permanently motorically disabled and either developmentally disabled or cognitively disabled if sufficiently developed. To assist claimants, a rebuttable presumption under Code § 38.2-5008(A)(1) arises when it is shown to the Virginia Workers' Compensation Commission that the infant sustained a qualifying injury. If either party disputes the presumption, the burden to prove the injuries are not birth-related falls on the opposing party.
The claimant argues that the presumption applies for three reasons: the Program conceded its application, the evidence indicated her disability was due to perinatal birth asphyxia, and the failure to obtain umbilical cord blood gas results should favor her claim. However, the court finds the first argument unconvincing because the claimant did not raise the alleged error before the commission, which precludes consideration under Rule 5A:18. Additionally, the Program's statements were misquoted and taken out of context; they did not concede the presumption but rather argued against the claim's compensability. For the presumption to apply, the claimant must provide evidence of a brain or spinal cord injury caused by oxygen deprivation or mechanical injury.
Claimant's assertion of a brain injury due to oxygen deprivation lacks support, as she does not claim a mechanical injury or spinal cord damage. The burden of proof rests on the claimant to establish, by a preponderance of the evidence, that oxygen deprivation occurred, requiring a probability rather than a mere possibility. Medical evidence presented is subject to the commission's evaluation and must be credible despite conflicting opinions. The commission is empowered to resolve discrepancies in medical testimony. Claimant's experts suggested that her injury must stem from oxygen deprivation only due to a lack of alternative causes; however, the opinions of Dr. Troyer and the panel physicians indicate that this absence of evidence does not sufficiently establish oxygen deprivation as the cause of her disability.
Virginia law allows for a spoliation inference, implying that when a party controls material evidence and fails to present it, it is presumed that the evidence would have been unfavorable to that party. This principle serves as an admission of the party’s belief in the weakness of their case. Conduct indicating the concealment or destruction of evidence can be used against a party, supporting the notion that missing evidence might be detrimental to their claims. The definition of spoliation encompasses both intentional destruction and the loss or alteration of evidence.
Spoliation refers to the intentional or negligent conduct resulting in the loss or destruction of evidence. A spoliation inference may be applied in legal actions if a reasonable person in the defendant's position should have anticipated that the evidence was relevant to a potential civil action. In this case, the claimant argued for a spoliation inference based on the delivering physician's failure to preserve umbilical cord blood and perform gas testing. The Program countered that the physician was not a party or an agent of a party, asserting it had no duty to preserve the evidence, thus claiming the inference should not apply. The commission found that the claimant did not meet her burden of proof, implicitly rejecting the argument for a favorable inference regarding the cord blood gas testing results. The commission's lack of explanation for this rejection, as required by law, suggests its decision was based on the belief that the physician should not be considered a party. A dissenting opinion argued for treating the physician as a party for spoliation purposes, indicating a divide in interpretation. Previous case law (Kidder) suggested that a claimant could argue for a spoliation inference if the absence of evidence resulted from negligence or intentional actions by a treating physician. The current understanding reinforces that while a delivering physician isn't a direct party to a compensation claim under the Act, their actions are still relevant in evaluating whether a claimant can meet their burden of proof.
Privity refers to a mutual or successive relationship regarding the same rights of property, with 'privy' relating to an individual's legal representation at trial. The Program is considered in privity with a physician, which allows for the missing evidence inference against the Program due to their shared interests. A surety defending an obligee's suit can assert defenses available to the principal, emphasizing the significance of privity. The Act limits the rights of infants and their representatives related to medical malpractice claims for birth-related neurological injuries and grants immunity from suit to all participating physicians, defined as licensed Virginia obstetricians who meet certain criteria, including paying an annual assessment to the Program and agreeing to review by the Board of Medicine for potential substandard care. This creates a privity relationship between the Program and the participating physician, ensuring the Program's accountability for the physician's evidence preservation. Denying the Program's responsibility for missing evidence would undermine the incentive for physicians to secure crucial evidence. Non-participating physicians do not have this immunity. The application of the missing evidence inference to the Program encourages it to hold physicians accountable for evidence preservation. The dissenting commissioner noted that a claimant's burden under the Act should align with common law standards. Thus, the commission is remanded to determine whether the missing evidence inference applies and if it entitles the claimant to benefits.
Dr. Troyer's testimony may indicate that Dr. Beaver was negligent for not preserving umbilical cord blood for gas testing, which could support a finding of birth-related asphyxia. However, the commission must decide if the absence of two out of four ACOG criteria for establishing birth-related asphyxia negates a finding of asphyxia, even with a presumed cord pH below 7.0. The Program did not concede the claimant's entitlement to the presumption under Code § 38.2-5008, and the evidence presented was inadequate to establish this entitlement without inferring that absent testing would have indicated oxygen deprivation. Nonetheless, an inference could be made under the right circumstances. The case is remanded to the commission to evaluate if those circumstances existed and whether the evidence, along with any such inference, sufficiently supports the claimant's entitlement to the statutory presumption and benefits under the Act. The decision is affirmed in part, reversed in part, and remanded.
