14 Jan Virginia: Medical Malpractice – a Lawyer’s Designation
Unpublished, the medical malpractice Order of the Virginia Supreme Court in Kraina v. Carman, Record No. 071718 (Jul. 18, 2008) has been under the legal radar. Yet it is a very important response to aggressive defense pleading.
Kraina reverses and remanded Norfolk Circuit Court’s grant of summary judgment that was predicated on the striking of plaintiff’s expert designation based on it supposedly not comporting with Complaint allegations of medical malpractice. Id. at 1, 4. Rejecting the trial court’s grant of such defense motions, the Virginia Supreme Court cited no jurisprudence and relied solely on Va. S. Ct. Rules 1:4(d) and 3:18(b); lionizing as dispositive “notice” pleading in general and “general allegations of negligence” in particular. Id. at 3.
Toward circumventing Kraina, Defendants early file Demurrers and/or Motions for Bills of Particular (toward trying to force Plaintiff’s into solely particularized allegations of negligence), then late file Motions to Strike and Motions for Summary Judgment. Fight the dilatory defense pleadings that wrongfully attack your sufficient general allegations of negligence, preserve your Objections to any bad rulings, and make any particularized allegations non-exclusive.