COURT OF APPEALS OF VIRGINIA

Present: Judges Causey, Raphael and Senior Judge Clements

Argued by videoconference

FATIMA SHAW-McDONALD

OPINION BY

v. Record No. 0067-23-4 JUDGE STUART A. RAPHAEL

JANUARY 30, 2024

EYE CONSULTANTS OF NORTHERN 

 VIRGINIA, P.C., ET AL. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Richard E. Gardiner, Judge1

Benjamin J. Trichilo (Harvey J. Volzer; McCandlish Lillard; 

Shaughnessy & Volzer, P.C., on briefs), for appellant.

F. Nash Bilisoly (W. Thomas Chappell; Elaine duRoss McCafferty; 

Woods Rogers Vandeventer Black PLC, on brief), for appellees.

Fatima Shaw-McDonald sued the two defendants here for medical malpractice, claiming 

that they botched her eye surgery. While the case was pending in the trial court, ShawMcDonald filed for Chapter 7 bankruptcy protection, prompting defendants to move to dismiss 

this case for lack of standing. The trial court deferred acting on that motion. Although ShawMcDonald initially failed to disclose the malpractice claim to the bankruptcy court, she amended 

her schedules to do so. At the close of the bankruptcy case, the medical-malpractice claim was 

abandoned by the trustee. Even so, the trial court dismissed this case for lack of standing, 

thinking that dismissal was required by Kocher v. Campbell, 282 Va. 113 (2011). 

1 Before his elevation to the Supreme Court of Virginia, Justice Thomas P. Mann 

presided at the June 6, 2022 hearing at which defendants first moved to dismiss the lawsuit. 

Judge Gardiner granted the motion to dismiss.

PUBLISHED
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We find that the trial court erred in relying on Kocher. Unlike the plaintiff in Kocher, 

Shaw-McDonald had standing when she sued defendants. Although her malpractice claim was 

temporarily transferred to the bankruptcy estate when she filed her Chapter 7 petition, the claim 

was abandoned at the close of the bankruptcy case, restoring it to her under 11 U.S.C. § 554(c),

as if no bankruptcy petition had been filed. Thus, the trial court erred in dismissing the case for 

lack of standing.

BACKGROUND

The material facts are not disputed. In August 2019, Shaw-McDonald filed this medicalmalpractice suit in the Circuit Court of Fairfax County against defendants Eye Consultants of 

Northern Virginia, P.C. and Northern Virginia Eye Surgery Center, LLC. Shaw-McDonald

claimed that defendants negligently performed her cataract surgery in 2017. She amended the 

complaint in June 2021, increasing the damages claimed to $2.3 million. 

In March 2022, Shaw-McDonald filed a Chapter 7 bankruptcy petition in the United 

States Bankruptcy Court for the Eastern District of Virginia. Shaw-McDonald incorrectly 

checked “No” on the petition questionnaire in response to whether she had any “[c]laims against 

third parties” or had “filed a lawsuit or made a demand for payment.” She also incorrectly 

answered “No” to the question, “Within 1 year before you filed for bankruptcy, were you a party 

in any lawsuit, court action, or administrative proceeding?” 

Shaw-McDonald failed to disclose her bankruptcy filing to defendants, neglecting to 

supplement her answer to an interrogatory that asked if she had ever “filed for bankruptcy 

protection.” On the night before trial, however, defendants discovered the bankruptcy filing and 

realized that Shaw-McDonald had not disclosed the malpractice case to the bankruptcy court. 

When the parties here appeared for trial on June 6, 2022, defendants brought the 

bankruptcy filing to the trial court’s attention and moved to dismiss the case with prejudice for 
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lack of standing, relying on Kocher, 282 Va. at 113. Kocher held that the plaintiff’s complaints 

filed in the Circuit Court of Spotsylvania County were a “nullity” because he had previously 

filed for bankruptcy, transferring his personal-injury cause of action to the bankruptcy estate. Id.

at 118-19. The trial court here “deferred ruling” on defendants’ motion so “plaintiff’s counsel 

c[ould] have a meaningful opportunity to investigate these matters.” The trial court added: “In 

the interim, except for plaintiff supplementing discovery relative to bankruptcy matters, this case 

is stayed pending potential briefing and argument on the outstanding motion to dismiss.” 

That same day, Shaw-McDonald filed amended schedules in the bankruptcy court. The 

amended schedules listed the medical-malpractice claim against defendants and requested that it 

be exempted from the bankruptcy estate. 

Two weeks later, on June 21, the bankruptcy trustee certified to the bankruptcy court that 

Shaw-McDonald’s bankruptcy estate was fully administered. On June 22, Shaw-McDonald 

moved the trial court to reinstate her medical-malpractice case, arguing that Kocher was 

distinguishable. 

On July 1, the bankruptcy court closed Shaw-McDonald’s bankruptcy case and 

discharged the trustee. The parties do not dispute that the medical-malpractice claim was “not 

otherwise administered” when the bankruptcy case was closed. 11 U.S.C. § 554(c). 

Two weeks later, defendants filed a renewed motion to dismiss this lawsuit and noticed it 

for a hearing on July 29, 2022. Their motion again argued that Shaw-McDonald’s bankruptcy 

filing deprived her of standing under Kocher. They also argued that Shaw-McDonald should be 

judicially estopped from pursuing the claim. For her part, Shaw-McDonald moved to reinstate 

the case, again setting forth her argument that Kocher was distinguishable. Her written 

opposition to defendants’ motion to dismiss included the same arguments. 
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The parties appeared for argument on July 29, 2022, but the record does not contain a 

transcript of the hearing. Six weeks later, the trial court issued an order calling for further 

briefing by the parties about the effect of 11 U.S.C. § 554(c). After receiving the parties’ 

submissions, the trial court issued a letter opinion and final order on October 17, 2022. See 

Shaw-McDonald v. Eye Consultants of N. Va., 110 Va. Cir. 380 (Fairfax 2022). 

The trial court concluded that “Kocher resolves the instant matter.” Id. at 381. The court 

reasoned that Shaw-McDonald lost standing to pursue the case when she filed for bankruptcy. 

Id. Any abandonment of that claim back to Shaw-McDonald under “11 U.S.C. § 554(c) has no 

bearing on this case,” the court reasoned, because that “statute is concerned with the status of 

property ‘at the time of the closing of a [bankruptcy] case.’” Id. The court thought that the 

relevant point in time here was “June 6, 2022,” the original trial date, not “July 1, 2022[,] when 

the [bankruptcy] case was closed.” Id. So the court dismissed Shaw-McDonald’s claims “with 

prejudice.” Id. at 383. The court said that its ruling on standing made it unnecessary to decide

whether Shaw-McDonald’s claims were also “barred by judicial estoppel.” Id. at 382 n.2. 

Shaw-McDonald noted a timely appeal. 

ANALYSIS

Whether a litigant has standing presents “a ‘question[] of law subject to de novo review 

on appeal.’” Biddison v. Va. Marine Res. Comm’n, 54 Va. App. 521, 527 (2009) (alteration in 

original) (quoting Moreau v. Fuller, 276 Va. 127, 133 (2008)). Shaw-McDonald’s standing here 

depends in part on federal bankruptcy law and on the meaning of our Supreme Court’s decision

in Kocher. Those issues also involve pure questions of law that we review de novo. See 

Commonwealth v. Watson, 297 Va. 355, 357 (2019); Kocher, 282 Va. at 116.

2

2 We reject defendants’ threshold argument that we cannot reach the merits of this appeal 

because Shaw-McDonald failed to file a transcript of the July 29, 2022 hearing or a statement of 
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“The concept of standing concerns itself with the characteristics of the person or entity 

who files suit.” Morgan v. Bd. of Supervisors of Hanover Cnty., ___ Va. ___, ___ (Feb. 2, 2023) 

(quoting Anders Larsen Tr. v. Bd. of Supervisors of Fairfax Cnty., 301 Va. 116, 120 (2022)). 

“The point of standing is to ensure that the person who asserts a position has a substantial legal 

right to do so . . . .” Anders Larsen Tr., 301 Va. at 120 (quoting Cupp v. Bd. of Supervisors of 

Fairfax Cnty., 227 Va. 580, 589 (1984)).

Defendants do not dispute that Shaw-McDonald had standing to sue them for medical 

malpractice “at the time of filing this action.” Kocher, 282 Va. at 119. They contend, however,

that Shaw-McDonald lost standing to pursue that claim when she filed for bankruptcy. But 

defendants overlook that Shaw-McDonald’s claim was restored to her through abandonment by 

the bankruptcy trustee.

“The commencement of a [bankruptcy] case . . . creates an estate” that includes “all legal 

or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. 

§ 541(a)(1). In other words, “[a]ll the legal and equitable interests in property that the debtor had 

before the petition was filed pass to and become a part of the bankruptcy estate, under the control 

of the trustee.” Kocher, 282 Va. at 117. Those property interests include “inchoate claims at the 

time of filing” as well as “those causes of action” that are then “pending in court.” Id. Both

sides agree that Shaw-McDonald’s medical-malpractice claim became part of the bankruptcy 

facts in lieu of a transcript. To be sure, “[w]hen the appellant fails to ensure that the record 

contains transcripts or a written statement of facts necessary to permit resolution of appellate 

issues, any assignments of error affected by such omission will not be considered.” Rule 

5A:8(b)(4)(ii). But this appeal challenges the correctness of a written opinion of the trial court 

involving pure issues of law where the parties’ respective positions were repeatedly set forth in 

their pleadings in the trial court, both before and after the July 29 hearing. So a transcript of the 

July 29 hearing is not indispensable. See, e.g., JSR Mech., Inc. v. Aireco Supply, Inc., 291 Va. 

377, 382 (2016) (finding a transcript not indispensable when the record “sufficiently sets before 

the Court the pure issue of law” on appeal); Veldhuis v. Abboushi, 77 Va. App. 599, 607 (2023) 

(“[T]he transcript is not indispensable . . . as we are able to dispose of the case by considering 

other portions of the record, namely the letter opinion issued by the trial court.”).
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estate on March 24, 2022, when she filed her Chapter 7 bankruptcy petition. At that point, her 

malpractice claim “could only be asserted by the trustee in bankruptcy, unless and until it was 

restored to [her] by the bankruptcy court.” Id. (citation omitted). 

“There are two methods by which assets of a bankruptcy estate may be restored to a 

debtor after a petition in bankruptcy has been filed”—exemption and abandonment. Id. The 

bankruptcy court did not exempt the medical-malpractice claim.3 But the trustee did abandon the 

claim, restoring it to Shaw-McDonald while her medical-malpractice case was still pending. 

Section 554(c) of the Bankruptcy Code provides that, “Unless the court orders otherwise, 

any property scheduled under section 521(a)(1) of this title not otherwise administered at the 

time of the closing of a case is abandoned to the debtor.” 11 U.S.C. § 554(c). In other words, 

“[p]roperty that is scheduled but not administered is deemed abandoned.” Ohio v. Kovacs, 469 

U.S. 274, 284 n.12 (1985). The abandonment in that situation occurs “by operation of law.” 

In re Furlong, 660 F.3d 81, 86 (1st Cir. 2011).

The debtor must describe the asset on the schedule with enough specificity “to enable the 

trustee to determine whether to investigate further.” Id. at 87 (quoting Payne v. Wood, 775 F.2d 

202, 207 (7th Cir. 1985)). Although Shaw-McDonald failed to disclose her medical-malpractice 

claim when she first filed her Chapter 7 petition, she timely amended her schedules to add it. “A 

voluntary petition, list, schedule, or statement may be amended by the debtor as a matter of 

course at any time before the case is closed.” Fed. R. Bankr. P. 1009(a) (emphasis added). 

3 The Bankruptcy Code permits States to decide what types of property are exempt. See 

11 U.S.C. § 522(b)(2). Virginia has chosen to exempt personal-injury actions like the medicalmalpractice claim at issue here. See Code § 34-28.1. “In order to claim the exemption, the 

debtor must list the cause of action as an asset in his schedule B and then claim it as exempt 

property on his schedule C using forms prescribed by the bankruptcy rules.” Kocher, 282 Va. at 

118. Shaw-McDonald fulfilled that obligation with her amended bankruptcy petition. But until 

the bankruptcy court enters an order exempting the listed property, “the property remains a part 

of the bankruptcy estate.” Id. The bankruptcy court did not enter such an order here before the 

bankruptcy case was closed, so Shaw-McDonald’s claim was not exempted.
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Defendants do not dispute that Shaw-McDonald’s amended schedule provided enough 

information for the bankruptcy trustee to decide whether to pursue the claim. 

Because Shaw-McDonald’s claim was “not otherwise administered” when her 

bankruptcy case closed, the claim was abandoned back to her by operation of law under § 554(c). 

Once a claim is abandoned, “[i]t reverts to the debtor and stands as if no bankruptcy petition was 

filed.” In re Dewsnup, 908 F.2d 588, 590 (10th Cir. 1990) (emphasis added), aff’d on other 

grounds sub nom. Dewsnup v. Timm, 502 U.S. 410 (1992); 5 Collier on Bankruptcy ¶ 554.02[3],

at 554-6 (16th ed. 2015) (same). This relation-back rule has a long pedigree. See, e.g., Sessions 

v. Romadka, 145 U.S. 29, 51-52 (1892) (“In such case the abandonment relates back to the 

commencement of the proceedings in bankruptcy, and the title stands as if no assignment had 

been made.”). As Justice Cardozo explained in 1937, the trustee’s abandonment of a claim in 

bankruptcy is treated like a gift that was never accepted: “Acceptance is presumed, but rejection 

leaves the title by relation as if the gift had not been made.” Brown v. O’Keefe, 300 U.S. 598, 

602 (1937).

The trial court erred in concluding that Kocher required the dismissal of ShawMcDonald’s claim for lack of standing. Kocher involved a plaintiff who lacked standing at the 

outset of the litigation, not a plaintiff who had standing at the start, temporarily lost control over 

the claim upon filing for bankruptcy, but resumed control when the claim was abandoned by the 

trustee. After the plaintiff in Kocher suffered injuries in a car accident, he filed a Chapter 7 

petition without disclosing his personal-injury claim on his schedules. 282 Va. at 116. The 

plaintiff obtained a standard discharge. The plaintiff then filed and nonsuited two personalinjury actions against the motorist involved in the collision. After the second nonsuit, the 

plaintiff persuaded the bankruptcy trustee to move to reopen the bankruptcy proceeding so the 

plaintiff could disclose the cause of action and apply for an exemption. But before the 
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bankruptcy court granted the exemption, the plaintiff filed suit against the defendant yet again. 

Id. “Therefore, all three of the complaints the plaintiff filed in the circuit court against the 

defendant . . . were filed during the period when the plaintiff lacked standing to assert the cause 

of action because it remained in the bankruptcy estate, enforceable only by the trustee.” Id. at 

118. In the interim, the personal-injury claim became time-barred. Because each lawsuit was “a 

nullity” at the outset for lack of standing, the plaintiff’s filings failed to toll the statute of 

limitations. Id. at 119.

Here, by contrast, Shaw-McDonald had standing at the start when she sued defendants 

for medical malpractice in August 2019. True, she later filed for bankruptcy in March 2022, 

temporarily transferring control over the claim to the bankruptcy trustee. See id. at 117. But the 

abandonment of the claim by the trustee when the bankruptcy case closed in July 2022 restored it 

to Shaw-McDonald “as if” no bankruptcy petition had been filed. Dewsnup, 908 F.2d at 590. 

The trial court correctly recognized that the Bankruptcy Code temporarily transferred 

control over the malpractice claim to the bankruptcy trustee when Shaw-McDonald filed her 

Chapter 7 petition. Shaw-McDonald, 110 Va. Cir. at 381. But the court failed to recognize that 

abandonment of the claim back to Shaw-McDonald restored the claim to her under 11 U.S.C. 

§ 554(c) as if the claim had never been transferred at all. It thus erred in concluding that 

§ 554(c) “has no bearing on this case.” Id. In short, when the trial court granted defendants’ 

motion to dismiss for lack of standing on October 17, 2022, Shaw-McDonald had standing to 

prosecute this case. 
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CONCLUSION

Because the trial court erred in dismissing this case for lack of standing, we reverse the 

judgment and remand the case for further proceedings consistent with this opinion.4 

Reversed and remanded.

4 As the trial court did not reach defendants’ judicial-estoppel argument, the parties 

remain free to litigate that issue on remand. We express no opinion on the merits of that 

argument.