VIRGINIA:

 In the Supreme Court of Virginia held at the Supreme Court 

Building in the City of Richmond, on Friday, the 31st day of 

October, 2008. 

Pamela E. Mayfield-Brown, Appellant 

 against Record No. 071167 

 Circuit Court No. L06-3008 

Sue K. Sayegh, M.D., F.A.C.O.G., et al., Appellees. 

 

 Upon an appeal from a judgment rendered by the Circuit 

Court of the City of Norfolk. 

Dominique Clark, et al., Appellants, 

 against Record No. 072312 

 Circuit Court No. CL06-3679 

Margarita de Veciana, M.D., Appellee. 

 Upon an appeal from a judgment rendered by the Circuit 

Court of the City of Norfolk. 

Melvin L. Wright, Administrator of the 

 Estate of Anne A. Wright, Deceased, Appellant, 

 against Record No. 071175 

 Circuit Court No. L05-2396 

David F. Silver, M.D., et al., Appellees. 

 Upon an appeal from a judgment rendered by the Circuit 

Court of the City of Norfolk. 

Upon consideration of the record, briefs, and argument of 

counsel, the Court is of the opinion that there is reversible error 

in the judgments of the circuit court. 

 In these consolidated appeals, each appellant asserts that the 
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trial court erred in holding that Eastern Virginia Medical School 

Academic Physicians and Surgeons Health Services Foundation ("EVMS 

Health Services Foundation") and/or its employees and agents are 

entitled to charitable immunity. EVMS Health Services Foundation 

has a stated purpose and organization very similar to that of the 

University of Virginia Health Services Foundation discussed in the 

recently decided case of University of Va. Health Servs. Found. v. 

Morris, 275 Va. 319, 657 S.E.2d 512 (2008). Applying the analysis 

concerning charitable immunity that we articulated in Morris, this 

Court holds that the EVMS Health Services Foundation and/or its 

employees and agents are not entitled to charitable immunity. 

EVMS Health Services Foundation dedicates substantial 

resources to the billing and collection of fees. It engages in 

systematic billing and collection practices similar to those 

employed by the University of Virginia Health Services Foundation. 

EVMS Health Services Foundation contracts with several outside 

collection agencies, including a law firm, which regularly seek 

legal redress for payments owed to the EVMS Health Services 

Foundation for services rendered. 

The amount of EVMS Health Services Foundation’s charity work 

as compared to its income is small. For example, in 2003, its 

financial statements show that EVMS Health Services Foundation 

collected slightly more than 49% of the $67,868,935 amount billed 

to nonindigent patients, resulting in total net patient revenue of 
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$33,302,698. EVMS Health Services Foundation’s financial 

statements show it forgave $1,984,722 in billings for indigent 

services. Therefore, by treating indigent patients, EVMS Health 

Services Foundation failed to receive approximately $973,886 in 

collections. Moreover, EVMS Health Services Foundation’s 2003 

financial statements also show an indigent care reimbursement from 

the Commonwealth of $787,464. Thus, taking into account the 

Commonwealth’s reimbursement, EVMS Health Services Foundation’s 

actual shortfall in 2003, as a result of providing medical care to 

indigent patients, was $186,422. 

EVMS Health Services Foundation, as does University of 

Virginia Health Services Foundation, pays a large portion of its 

excess revenues to its clinicians. EVMS Health Services Foundation 

does not distribute excess revenues based upon need or societal 

benefit. Excess revenues are required to be paid to the clinical 

departments that earned the revenues, after deducting their pro 

rata share of expenses. Each clinical department distributes the 

funds in accordance with a predetermined 70/20/10 distribution 

formula. According to the formula, 70% is paid to the clinicians, 

20% to Eastern Virginia Medical School ("EVMS") for the use of the 

Dean and the remaining 10% to EVMS for the use of the department 

chairs. 

EVMS Health Services Foundation receives no charitable 

donations from individual donors. EVMS Health Services Foundation 
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has never reported to the federal government receipts of any 

contributions from private benefactors, and it is forbidden from 

soliciting or accepting such contributions absent the consent of 

EVMS. 

Upon consideration of the above-referenced factors, it is 

clear that the manner in which EVMS Health Services Foundation 

actually conducts its affairs is like a profitable commercial 

business. See Morris, 275 Va. at 340, 657 S.E.2d at 522. EVMS 

Health Services Foundation is, therefore, not immune from tort 

liability under the doctrine of charitable immunity. 

Accordingly, the judgments of the trial court granting the 

special pleas of charitable immunity in Pamela E. Mayfield-Brown v. 

Sue K. Sayegh, M.D., F.A.C.O.G., et al., Dominique Clark, et al. v. 

Margarita de Veciana, M.D., and Melvin L. Wright, Administrator of 

the Estate of Anne A. Wright, Deceased v. David F. Silver, M.D., et 

al. are reversed, and the cases are remanded for further 

proceedings consistent with this order. 

This order shall be published in the Virginia Reports and 

shall be certified to the said circuit court. 

A Copy, 

 Teste: 

 Patricia L. Harrington, Clerk