PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and 

Lemons, JJ., and Carrico, S.J. 

TODD BERNER, M.D., ET AL. 

v. Record No. 021006 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 April 17, 2003 

SCOTT MILLS, CO-ADMINISTRATOR 

OF THE ESTATE OF NELSON MILLS, ET AL. 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal, we consider whether the Court of Appeals 

erred in affirming a decision of the Virginia Workers' 

Compensation Commission (the Commission) that it lacked 

jurisdiction to consider a claim against a professional 

corporation under the Virginia Birth-Related Neurological Injury 

Compensation Act (the Act), Code §§ 38.2-5000 through -5021. 

The primary question we decide is whether certain statutory 

amendments providing for the inclusion of professional 

corporations under the Act apply retroactively to bar a wrongful 

death action filed in a circuit court against a particular 

professional corporation. 

 We will state the facts relevant to this issue of law. In 

May 1998, Tara Mills gave birth to a son, Nelson Mills, who 

allegedly sustained multiple skull fractures and other serious, 

irreversible physical injuries resulting from medical procedures 

employed during the course of his delivery. Nelson was 

maintained on "life support" systems for about ten days, and he 
died following his parents' decision to discontinue that medical 

support. 

 In April 1999, Tara Mills and her husband, Scott A. Mills 

(collectively, the Mills), in their capacity as coadministrators of Nelson's estate, filed a motion for judgment 

in the Circuit Court of Arlington County against Todd Berner, 

M.D., and his employer, Primary Care for Women, P.C. (Primary 

Care).1 The Mills asserted a wrongful death claim alleging that 

Nelson died as the result of "massive head injuries from skull 

fractures" caused by Dr. Berner's negligent use of forceps 

during the delivery process. 

 In July 1999, pursuant to Code § 8.01-273.1, Dr. Berner and 

Primary Care asked the circuit court to refer the Mills' claims 

to the Commission to determine whether the Commission had 

exclusive jurisdiction under the Act to consider the claims. 

The Act generally provides the sole remedy for infants who have 

incurred a birth-related neurological injury caused by a 

"participating physician" or a "participating hospital," and 

bars infants who have sustained injuries of this nature from 

maintaining a common law tort action against such a 

"participating physician" or "participating hospital." See Code 

§ 38.2-5002(B); Gibson v. Riverside Hosp., Inc., 250 Va. 140, 

 1

 By agreement of the parties, the action later was 

transferred to the Circuit Court of Fairfax County. 

2
142, 458 S.E.2d 460, 462 (1995). The Commission has exclusive 

jurisdiction to decide whether an infant's claim lies within the 

purview of the Act. See Code § 38.2-5003. 

 In January 2000, the circuit court stayed proceedings on 

the motion for judgment and referred the Mills' claims to the 

Commission for a determination whether the claims were subject 

to the provisions of the Act. In March 2000, this Court decided 

Fruiterman v. Waziri, 259 Va. 540, 544-45, 525 S.E.2d 552, 554 

(2000), in which we held that a professional corporation did not 

qualify as a "participating hospital" or a "participating 

physician" under the Act and, thus, was not afforded immunity 

from tort liability for birth-related neurological injuries 

caused by medical malpractice. 

Based on the holding in Fruiterman, the Mills asked the 

Commission to remand their claim against Primary Care to the 

circuit court. The Mills informed the Commission that if it 

took this action, they would nonsuit their remaining claims 

against Dr. Berner and would waive any other claim they might 

have against any defendant under the Act. 

 On April 1, 2000, the Governor of Virginia approved the 

General Assembly's amendment and reenactment of Code §§ 8.01-

273.1 and 38.2-5001. Acts 2000, ch. 207. Code § 8.01-273.1 was 

amended, in relevant part, to permit a party to an action in a 

circuit court, who is "a participating hospital or physician as 

3
defined in § 38.2-5001," to request the Commission to determine 

whether the claim on which the tort action is based is subject 

to the jurisdiction of the Act. 

 Under amended Code § 38.2-5001, the definition of the term 

"participating physician" was expanded to include a 

"professional corporation . . . or other entity through which 

the participating physician practices." As part of its 

amendment and reenactment of Code § 38.2-5001, the General 

Assembly stated that "the provisions of this act amending 

§ 38.2-5001 are declaratory of existing law." Acts 2000, ch. 

207, cl. 2. 

 Several weeks later, a deputy commissioner granted the 

Mills' motion to remand their claims to the circuit court. 

Based on the holding in Fruiterman, the deputy commissioner 

concluded that the Commission did not have jurisdiction over 

Primary Care because it did not qualify as either a 

"participating physician" or a "participating hospital" under 

the Act. The deputy commissioner also held that the April 1, 

2000 amendments did not apply retroactively to the Mills' 

claims. 

 Dr. Berner and Primary Care appealed to the full 

Commission, which affirmed the deputy commissioner's decision. 

The Commission held, in relevant part, that the amendments could 

not be applied retroactively to the Mills' claims because the 

4
amendments would deprive the Mills of their substantive right to 

bring a wrongful death action in the circuit court against 

Primary Care. 

 Dr. Berner and Primary Care (the defendants) appealed this 

decision to the Court of Appeals, which affirmed the 

Commission's decision. Berner v. Mills, 38 Va. App. 11, 13, 18, 

560 S.E.2d 925, 926, 928 (2002). The Court of Appeals 

concluded, in relevant part, that the amendments applied "only 

to cases that arose after their enactment" because "the General 

Assembly did not clearly, explicitly and unequivocally state 

that the . . . amendments were to be applied retroactively to 

causes of action that accrued before April 1, 2000." Id. at 17, 

560 S.E.2d at 928. Thus, the Court of Appeals held that the 

Commission did not err in applying the decision in Fruiterman

and in concluding that the Commission lacked jurisdiction over 

Primary Care, a professional corporation. Id. at 18, 560 S.E.2d 

at 928. The defendants appeal. 

 The defendants argue that the Court of Appeals erred in 

affirming the Commission's refusal to apply the amendments to 

Code § 38.2-5001 retroactively to the Mills' claims. They 

assert that the General Assembly plainly expressed an intent 

that those amendments be applied retroactively by stating that 

the amended statute was "declaratory of existing law." The 

defendants also contend that because Code § 38.2-5001 was 

5
amended and reenacted soon after our decision in Fruiterman, the 

amendments did not effect a substantive change in the law but 

merely articulated "what always has been the law and what always 

should have been the interpretation thereof." We disagree with 

the defendants' arguments. 

 Our analysis is guided by the fundamental principles of 

statutory construction that retroactive laws are not favored, 

and that a statute is always construed to operate prospectively 

unless a contrary legislative intent is manifest. Adams v. 

Alliant Techsystems, Inc., 261 Va. 594, 599, 544 S.E.2d 354, 356 

(2001); McIntosh v. Commonwealth, 213 Va. 330, 331-32, 191 

S.E.2d 791, 792 (1972); Duffy v. Hartsock, 187 Va. 406, 419, 46 

S.E.2d 570, 576 (1948). The General Assembly incorporated the 

substance of these basic principles into the language of Code 

§ 1-13.39:3, which provides additional direction concerning 

statutes, such as the two before us, that contain the word 

"reenacted" in their title or enactment.2 Code § 1-13.39:3 

states: 

 Whenever the word "reenacted" is used in the 

title or enactment of a bill or act of assembly, it 

shall mean that the changes enacted to a section of 

the Code of Virginia or an act of assembly are in 

addition to the existing substantive provisions in 

 2

 Code § 1-13.39:3, enacted in 2001, is applicable to the 

present appeal because the statute is a procedural provision of 

law. See Walke v. Dallas, Inc., 209 Va. 32, 35, 161 S.E.2d 722, 

724 (1968). 

6
that section or act, and are effective prospectively 

unless the bill expressly provides that such changes 

are effective retroactively on a specified date. 

 The provisions of this section are declaratory of 

existing public policy and law. 

Based on this provision, a "reenacted" statute will be 

applied retroactively only if the bill or act of assembly 

containing the legislation explicitly and unequivocally meets 

the requirements of Code § 1-13.39:3. Both Code §§ 8.01-273.1 

and 38.2-5001 are subject to the above requirements because the 

single bill that enacted the amendments to both statutes 

employed the word "reenacted" in stating the contents of the 

legislation. That bill, however, did not contain an express 

provision that the statutory changes would be effective 

retroactively on a specified date. See Acts 2000, ch. 207. The 

absence of this required language from the bill compels a 

conclusion that the amendments to those sections are effective 

prospectively, not retroactively. 

We also observe that, in enacting other amendments to the 

Act, the General Assembly employed language plainly manifesting 

a retroactive intent under the provisions of Code § 1-13.39:3. 

For example, in its amendment and reenactment of Code § 38.2-

5009, the General Assembly stated that "[t]he amendments to this 

section . . . shall be retroactively effective in all cases 

arising prior to July 1, 1990, that have been timely filed and 

7
are not yet final." Code § 38.2-5009(B); see also Code § 38.2-

5001 (stating in 1999 amendment that definition of "Birthrelated neurological injury" as set forth in that statute "shall 

apply retroactively to any child born on and after January 1, 

1988"). The General Assembly's failure to use language of this 

nature in the bill reenacting Code §§ 8.01-273.1 and 38.2-5001 

further demonstrates that the amendments to that section were 

not intended to be applied retroactively. Thus, we hold that 

the phrase "declaratory of existing law" is not a statement of 

retroactive intent, and that the language of Code §§ 8.01-273.1 

and 38.2-5001 does not manifest a legislative intent that the 

statutes be applied retroactively. 

The contrary conclusion advanced by the defendants would 

effectively nullify the requirement in Code § 1-13.39:3 that 

"reenacted" statutes apply prospectively unless the bills 

enacting them contain certain specified language. Moreover, any 

construction of the phrase "declaratory of existing law" as a 

statement of retroactive intent would render the language of 

Code § 1-13.39:3 self-contradictory and meaningless.3 Under 

 3

 We also find no merit in the defendants' contention, 

advanced at oral argument in this case, that the terms 

"declaratory of existing public policy and law" and "declaratory 

of existing law" signal a retroactive legislative intent in some 

statutes, but demonstrate a prospective legislative intent in 

other statutes. We will not assign the same statutory language 

contradictory interpretations. 

8
basic rules of statutory construction, we are prohibited from 

construing a statute in such a manner. See Sansom v. Bd. of 

Supervisors, 257 Va. 589, 595, 514 S.E.2d 345, 349 (1999); 

Hubbard v. Henrico Ltd. P'ship, 255 Va. 335, 340, 497 S.E.2d 

335, 338 (1998); Doss v. Jamco, Inc., 254 Va. 362, 371, 492 

S.E.2d 441, 446 (1997). Therefore, we conclude that the Court 

of Appeals correctly held that the Commission did not err in 

refusing to apply Code §§ 8.01-273.1 and 38.2-5001 retroactively 

and, thus, that the Commission lacked jurisdiction over Primary 

Care based on our decision in Fruiterman.4

For these reasons, we will affirm the Court of Appeals' 

judgment. 

Affirmed.

 4

Based on our holding that Code §§ 8.01-273.1 and 38.2-5001 

do not apply retroactively to the Mills' claim, we do not reach 

the issue whether a retroactive application of those statutes 

would impair any substantive or vested right belonging to the 

Mills. 

9