Virginia: Medical Malpractice – a Lawyer’s Beneficiary

Virginia: Medical Malpractice – a Lawyer’s Beneficiary

On April 6, 2016, Mr. Waterman’s medical malpractice case for alleged wrongful death in Joanne T. Rauchfuss, Administratrix of the Estate of George William Rauchfuss, Jr., Deceased v. Peninsula Radiological Associates, Ltd. and Benjamin J. Pettus, M.D. No. CL1302754V-04(DP) in Circuit Court for Newport News, Virginia, was heard on Plaintiff’s Motion for Leave to File Third Amended Complaint and on Defendants’ Motion to Transfer Venue.  Significantly, in a ruling of “first impression” in Virginia, Rauchfuss held that the patient was an intended third-party beneficiary of the Radiology Defendants’ Radiology Services Agreement, which imported a “national” radiology standard of care (“SOC”) and Riverside’s “policies, procedures, and protocols” in the SOC too, and which Plaintiff alleges were breached by Radiology Defendants.

 

In addition to finding that Plaintiff’s new claim for breach of Agreement was not time-barred, Rauchfuss also found that Plaintiff sufficiently stated a claim for punitive damages against Radiology Defendants, and approved Plaintiff’s Third Amended Complaint in the medical malpractice lawsuit.  Rauchfuss also rejected the Radiology Defendants’ attempt to transfer the wrongful death case to more conservative Williamsburg.

 

Incident to the Rauchfuss wrongful death case adopting Mr. Waterman’s arguments at hearing, the following findings were indicated:

 

  1. Vines v. Branch, 244 Va. 185 (1992) is dead law re “relation back” of complaint amendment, and has been superseded by statute, Va. Code §8.01-6.1 with its three-part principles, which is adopted;

 

  1. Plaintiff’s Third Amended Complaint, including its new breach of contract claim, arises out of the conduct, transaction, or occurrence set forth in the original pleading;

 

  1. Plaintiff was “reasonably diligent” in asserting Third Amended Complaint; did not have to key on Defendants, Peninsula Radiological Associates, Ltd. and Benjamin J. Pettus, M.D., in discovery; and instead was free to pursue other Co-Defendants for pertinent information and materials;

 

  1. Defendants will not be “substantially prejudiced” in litigating on the merits as a result of the timing of this amendment, since the time period is not all that long and is okay;

 

  1. Third Amended Complaint “relates back” to the time of filing of the original pleading, and is not time-barred by the applicable two-year statute of limitations;

 

  1. Under Va. Code §55-22, Plaintiff’s patient is a third-party beneficiary, i.e., is an “intended beneficiary,” not an “incidental beneficiary, of the 9/16/11 Radiology Services Agreement between Defendant, Peninsula Radiological Associates, Ltd., and Riverside Physician Services, Inc.; and based on the totality of the agreement, the parties intended to meet the care, services, requirements, etc. of future patients;

 

  1. Third Amended Complaint sufficiently alleges a claim for punitive damages against both Defendants, Peninsula Radiological Associates, Ltd. and Benjamin J. Pettus, M.D.;

 

  1. Defendants’ Affidavit of Kelly Street Brown, Esq. re transfer of venue is hearsay which violates Plaintiff’s right of cross-examination;

 

  1. Traveling time between Williamsburg and Newport News is just commuting distance, not “substantial inconvenience”; and

 

  1. Healthcare providers are treated like all other persons as trial witnesses.

 

Therefore, in the Rauchfuss medical malpractice suit against the Radiology Defendants, the Court ruled:

 

  1. Plaintiff’s Motion for Leave to File Third Amended Complaint is GRANTED;

 

  1. Plaintiff is AUTHORIZED to file and serve forthwith her tendered Third Amended Complaint (including its new breach of contract claim, new punitive damages claim, and Exhibits 1-22), as revised by the additional third-party beneficiary language proffered at hearing, with the Hearing Order being entered nunc pro tunc to date of hearing;

 

  1. The caption of this cause is and shall be MODIFIED for all purposes to Joanne T. Rauchfuss, Administratrix of the Estate of George William Rauchfuss, Jr. v. Peninsula Radiological Associates, Ltd. and Benjamin J. Pettus, M.D.;

 

  1. Defendants’ Affidavit of Kelly Street Brown, Esq. is INADMISSIBLE in evidence;

 

  1. Defendants’ Motion for Transfer of Venue is DENIED; and

 

  1. The Court will NOT REVISIT any of its 4/6/16 hearing rulings on any Demurrer by either Defendant, although Defendants are not forbidden from filing Demurrers to the Third Amended Complaint.

 

 

Rauchfuss already is scheduled for yet another discovery hearing before the Court on May 31, 2016, because of the Radiology Defendants withholding responsive materials and information from the Plaintiff widow.

THE VIRGINIA STATE BAR REQUIRES ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN’S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.