Virginia: Medical Malpractice – a Lawyer’s Guardian

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On April 14, 2016, the Virginia Supreme Court affirmed in the Fairfax appeal of Lopez-Rosario v. Habib, No. 150587, that Plaintiff lacked standing to file medical malpractice suit in her own name because co-guardians already had been appointed for her.  Id. at 7.  The Court delineated that the co-guardianship was for full legal authority, not a limited one.  Id. at 6.


Notably, the Lopez-Rosario medical malpractice opinion did not consider the alternative argument that “although the parents may be her guardians, they were not her conservators, so they did not have authority to file suit;” finding it barred by Va. S. Ct. Rule 5:25 for being raised for the first time at oral argument on appeal.  Id. at 3 n. 2.  More notably, the Court observed that as Plaintiff’s guardians, her parents were her “fiduciaries [with] the authority and obligation to prosecute lawsuits on [her] behalf,” id. at 6 (emphasis added) – raising the specter of Plaintiff proceeding against her parents for alleged breach of fiduciary duty.  Id.