Virginia: Medical Malpractice – a Lawyer’s Nonsuit (October 22, 2018)

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In the wrongful death case of Scruggs v. Williamsburg Landing, Inc., No. CL18001644-00 in Circuit Court for the City of Williamsburg and James City County, Virginia, nursing home Defendant, Williamsburg Landing, Inc. (“WLI”), “accepts responsibility and liability for the April 15, 2016 fall,” see, 9/24/16 Liability Stipulations, at 1 (underlining added); which “accidental fall” its Medical Director certified to the Commonwealth of Virginia was the “UNDERLYING CAUSE” of death. See, 4/27/16 Virginia Certificate of Death (underlining added). But Defendant WLI nonetheless seeks to delay its medical malpractice case discovery/prosecution by desperately filing a dilatory Plea in Bar that contrary to Virginia law claims Plaintiff’s enhanced Complaint filed after nonsuit supposedly is time-barred.

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            On its Plea, Defendant WLI “bears the burden of proof”. Baker v. Poolservice Co., 272 Va. 677, 688 (2006). “Where no evidence is taken in support of a plea in bar, the trial court … consider[s] solely the pleadings in resolving the issue presented.” Gray v. Virginia Sec’y of Transp., 276 Va. 93, 97 (2008). “The facts as stated in the pleadings by the plaintiff are taken as true”. Id.

Contrary to Defendant WLI’s Plea, the Virginia Supreme Court, the United States Fourth Circuit Court of Appeals, 5 United States District Court judges, and at least 15 Virginia Circuit Court judges have found that a Complaint filed outside the SOL yet within 6 months of nonsuit is timely, even if it increases ad damnum, adds other allegations of negligence, states new rights of action, etc. arising out of the same “conduct, transaction or occurrence, i.e., “medical malpractice”; it does not constitute a new “cause of action,” and is not time-barred by the statute of limitation (“SOL”). See, e.g., Ex. 6, Hatfill v. The New York Times Co., 416 F.3d 320, 334-35 (4th Cir. Jul. 28, 2005)(Virginia law), reh. en banc denied, 427 F.3d 253 (Oct. 18, 2005), cert. denied, 547 U.S. 1040 (2006); Ex. 7, Quigley v. McCabe, 2017 WL 3821806, *9-10 (E.D. Va. Aug. 30, 2017)(Virginia law)(medical malpractice)(Morgan, J.); Ex. 8, Schur v. Zackrison, 2015 U.S.Dist. LEXIS 165321, 2015 WL 8484441, *6 (E.D. Va. Dec. 8, 2015)(Virginia law)(medical malpractice)(Cacheris, J.); Ex. 9, Dunston v. Huang, 709 F. Supp.2d 414, 417-21 (E.D. Va. Mar. 10, 2010)(Virginia law)(medical malpractice)(Ellis, J.); Ex. 10, Vaughan v. The First Liberty Ins. Corp., 2009 WL 4030729, *3-6 (E.D. Va. Nov. 13, 2009)(Virginia law)(Payne, J.); Ex. 11, Herndon v. Appalachian Reg’l Comty Head Start, Inc., 572 F.Supp.2d 663, 663-64 (W.D. Va. Jul. 25, 2008)(Virginia law)(Jones, C.J.); Ex. 12, McKinney v. Virginia Surgical Assocs., P.C., 284 Va. 455, 459-61 (2012)(medical malpractice); Ex. 35, Huffman v. Fredricksburg Orthopaedic Assocs., P.C., No. CL18-4301, Order at 1 (Richmond Oct. 19, 2018)(medical malpractice); Ex. 13, Mowery v. Smith, No. CL-2016-02658, Hr’g Tr. at 5.17-6.4 (Fairfax County Jul. 28, 2017)(medical malpractice)(Tran, J.); Ex. 14, Mowery v. Smith, No. CL-2016-02658, Order, *1 (Fairfax County Apr. 14, 2017)(medical malpractice)(Ortiz, J.); Ex. 15, Panth v. Ashouripour, 2017 WL 342545, *1-2 (Alexandria Jan. 18, 2017)(medical malpractice); Stinnett v. Fishburne, No. CL16-2204, Order (Chesterfield Dec. 9, 2016)(Rockwell, J.); Ex. 16, Whitson v. Coccia, 2016 WL 9343688, *1 (Norfolk Nov. 17, 2016)(Migliozzi, J.); Ex. 17, Jones v. Veeramani, No. CL2016-9470, Hr’g Tr. at 7.2-14 (Fairfax County Aug. 26, 2016)(White, J.); Ex. 18, Lakani v. Tavallali, 2014 WL 11206844, *1 (Fairfax County Apr. 18, 2014)(medical malpractice); Ex. 19, Jackson v. Vanga, 85 Va. Cir. 266, 267-69, 2012 WL 9334885, *2-3 (Norfolk Aug. 24, 2012)(medical malpractice); Ex. 20, Washington v. Hoffman, 2011 WL 13060431, *1 (Fairfax County Nov. 15, 2011)(Ney, J.); Ex. 21, Potter v. Vernon, No. CL10004040-00, Order (Richmond Feb. 16, 2011); Ex. 22, Farmer v. Blue Ridge Surgical Assocs., P.C., No. CL09274-00, Letter Op. at 1-2 (Carroll Oct. 7, 2010)(medical malpractice); Hatcher v. Dailey, No. CL10-4252, Order (Franklin Aug. 23, 2010)(Alexander, J.); Ex. 23, Wood v. Brosseau, No. CL10-1300, Order (Prince William Jun. 18, 2010)(Hamlin, J.); and Ex. 24, O’Hearn v. Mawyer, 80 Va. Cir. 11, 13, 2010 WL 7372438, *2 (Rockingham Jan. 7, 2010). Cf., Conner v. Rose, 252 Va. 57, 58 (1996)(post-nonsuit Complaint alleging new fraud claim and increased ad damnum permissible).

A.  Defendant’s “Authority”:

  1. Spear (Loudoun 2009)

Spear v. Metro. Washington Airport Auth., 78 Va. Cir. 456, 457 (2009) held a Complaint filed outside the SOL yet within 6 months of nonsuit “did not recommence the same action” under the tolling statutes (and thereby was time-barred), simply because of increased ad damnum. See, Ex. 25. Per Spear, an identical Complaint must be refiled.

Defendant WLI omits Spear’s subsequent history, i.e., Virginia Supreme Court granted writ of certiorari; briefs were filed, see, 2010 WL 7827633 and 2010 WL 7827636; and appeal was withdrawn because Defendant paid settlement. See, Ex. 26, 10/15/18 ACMS-SCV Case Information Record #092451 Printout. Defendant knew Spear would be reversed.

  1. Allen (Loudoun 2009)

Allen v. Loudoun County Sanitation Auth., 81 Va. Cir. 496, 2009 WL 10630365 (Loudoun Nov. 2, 2009), see, Ex. 27, issued in Loudoun shortly after Spear in Loudoun. It held time-barred a public nuisance claim added to a negligence Complaint for wrongful death filed outside the SOL yet within 6 months of nonsuit. Allen rejected two seminal decisions of superior courts: [1] it disagreed with the U.S. Fourth Circuit in Hatfill, supra, see, II(B)(1), infra; and [2] it found “not persuasive” the Virginia Supreme Court in Roller v. Basic Constr. Co., 238 Va. 321 (1989), the fountainhead of its 2012 opinion in McKinney, supra. See, II(B)(3), infra.

Defendant WLI omits Allen. Allen dismissed only the new claim, see, 81 Va. Cir. at 496 – but Defendant WLI angles for dismissal of the whole Complaint! See, Ex. 4, Plea at 2.

  1. Lawton-Gunter (Roanoke 2014)

In Lawton-Gunter, 88 Va. Cir. 327, 2014 WL 8240004 (Roanoke Jun. 12, 2014), both complaints sought medical malpractice recovery, but the second filed outside the SOL yet within 6 months of nonsuit itemized 6 new aspects of negligence. 2014 Lawton-Gunter rejected “same transaction-or-occurrence” test and followed Allen’s abrogated “same-evidence” test. But it was unaware of the dozen then-existing Virginia Supreme Court and other state and federal decisions on point upholding the new “transaction” test. Compare II(B)(1-4), infra, with Ex. 28.

Defendant WLI omits Lawton-Gunter. It dismissed only the new claims, see, 88 Va. Cir. at 327 – but Defendant WLI seeks dismissal of the entire Complaint! See, Ex. 4, Plea at 2.

B. Plaintiff’s Authority:

Tolling “statutes are highly remedial and should be liberally construed in furtherance of their purposes, and are not to be frittered away by any narrow construction.” Baker v. Zirkle, 226 Va. 7, 13 (1983)(emphasis added). “The Virginia legislature has recognized that statutes of limitations are obstacles to the intended flexibility in the exercise of the nonsuit provision.” Sherman v. Hercules, Inc., 636 F.Supp. 305, 306 (W.D. Va. 1986)(Virginia law).

  1. Virginia Supreme Court

In 2012 in McKinney, supra – 3 years after Spear/Allen – the Virginia Supreme Court declared timely a medical malpractice Complaint for only survival filed outside the SOL yet within 6 months of nonsuit of the last Complaint for only wrongful death. See, Ex. 11, 284 Va. at 460-61. McKinney delineated Virginia’s longstanding single indivisible cause of action rule in the context of the tolling provisions of Va. Code §§8.01-229(E)(3) and 8.01-380, i.e., that the “cause of actionwas the Defendant’smedical malpractice,” which was “saved” by the filing and the refiling of the differentrights of actionfor wrongful death and for survival, respectively, regardless that the two required different “evidence”:

[Code §8.01-229(E)(3)] must be read together with Code §8.01–380, the nonsuit statute to which it refers and with which it is in pari materia. *** Application of that principle makes it clear that the terms ‘such action’ and ‘his action,’ as used in Code §8.01–229(E)(3), refer to the same subject as that of Code §8.01–380 and are intended to mean ‘cause of action.’


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A ‘cause of action’ is the set of operative facts which, under the substantive law, gives rise to a ‘right of action.’ ‘Cause of action’ and ‘right of action’ are not synonymous. *** [A] ‘right of action’ is a remedial right to presently enforce an existing ‘cause of action’.


In the context of the present case, the cause of action was the defendant’s alleged medical malpractice resulting in injury to the decedent. From this cause of action, two rights of action arose: (1) the decedent’s right to bring an action for personal injury during his lifetime, which survived to be carried on by his personal representative after his death, and (2) the personal representative’s right to bring an action for wrongful death.


                        The circuit court erred in holding that the ‘survival action is a different cause of action than the wrongful death action’ and that it was therefore not saved by the tolling provision of Code §8.01–229(E)(3). There was a single cause of action. A right of action to enforce it was timely if brought within six months after entry of the order granting the nonsuit.


Id. at 459-61 (emphasis added)(citations omitted). McKinney rejected the “same evidence” test (wrongly used by Allen and Lawton-Gunter) and used a “same transaction” test, when it noted that wrongful death right of action and survival right of action require different “evidence,” id. at 458; nonetheless found timely a post-nonsuit survival action after a pre-nonsuit wrongful death action; and emphasized the core medical malpractice “transaction” was the continuing cause of action. Id. at 460-61. McKinney reversed and remanded. Id. at 461.

In 2013, the Virginia Supreme Court elaborated McKinney’s single “indivisible cause of action rule [that] has existed in the Commonwealth for decades”. Kiser, supra, 285 Va. at 21-29. In 2016, it upheld a Complaint filed outside the SOL yet within 6 months of nonsuit that changed Defendant’s misnomer. Richmond v. Volk, 291 Va. 60, 67 (2016). It reversed and remanded.

  1. U.S. Fourth Circuit Court of Appeals

U.S. Fourth Circuit presaged McKinney in 2005 Hatfill. See, Ex. 6, supra. It upheld as timely a Complaint outside the SOL yet within 6 months of nonsuit, which deleted an emotional distress claim and added as Count Two new allegations that “each of eleven discrete factual statements in Kristol’s columns constituted defamation per se”. 416 F.3d at 328-29 and 334-35.

When Hatfill took a voluntary nonsuit in his original state-court action, he did so with respect to the set of operative facts underlying the complaint, namely the defendants’ publication of Kristol’s columns. When he filed this lawsuit in federal court, the tolling provision saved all rights of action arising from that cause of action, including the right of action alleged in Count Two.


Id. at 335. In Hatfill, the Fourth Circuit reversed, remanded, and denied rehearing en banc; and the United States Supreme Court denied writ of certiorari.

  1. U.S. District Courts for the Eastern and Western Districts of Virginia

During 2008-2017, four federal judges from the Alexandria, Richmond, and Norfolk Divisions of the Eastern District of Virginia and one federal judge from the Western District of Virginia opined for Plaintiff. See, Quigley, Schur, Dunston, Vaughan, and Herndon, supra.

In the leading 2010 Dunston medical malpractice case, Judge Ellis explains:

On the merits, although plaintiff’s additional claims — namely the failure to perform an alternative procedure and lack of informed consent — were filed after the original limitations period expired, application of the transaction or occurrence test compels the conclusion that these claims are nonetheless saved by the nonsuit statute of limitations tolling provision. *** As such, all of plaintiff’s current claims relate to a common transaction or occurrence, and therefore constitute a single cause of action. From this, it follows that because plaintiff’s additional claims are included within the nonsuited cause of action, as defined by the nonsuit statute, they are also properly considered as part of the nonsuited ‘action’ that may be recommenced within six months of the nonsuit, as understood by the nonsuit statute of limitations tolling provision. Although the Supreme Court of Virginia has held that the evidence required to prove an informed consent claim is distinct from the evidence required to prove a medical malpractice claim, this distinction is not determinative given that the same evidence test no longer applies to define a cause of action.


In sum, plaintiff’s failure to perform an alternative procedure and lack of informed consent claims were raised for the first time in her December 14, 2009 complaint, well after the expiration of the applicable two-year statute of limitations, but less than six months after the nonsuit. Because these claims and plaintiff’s previously nonsuited medical malpractice claims arise out of the same transaction or occurrence, both plaintiff’s additional claims and nonsuited claims constitute a single ‘cause of action’ under the Virginia nonsuit statute, and as such come within the ‘action’ saved by the nonsuit statute of limitations tolling provision.


See, Ex. 9, 709 F.Supp.2d at 420-21 (emphasis added). Dunston denied dismissal.

In Herndon in 2008, Chief Judge Jones upheld as timely a Complaint outside the SOL yet within 6 months of nonsuit with 2 new counts under the federal False Claims Act. See, Ex. 11, 572 F.Supp.2d at 663-64. “This tolling provision [Va. Code §8.01-229(E)(3)] saves all of the operative facts supporting any right of action claimed, regardless the particular label. See Hatfill.” Id. at 664 (emphasis added). Herndon denied dismissal.

In Vaughan in 2009, Judge Payne followed Hatfill and Baker with appropriately “liberal construction of the tolling statutes [Va. Code §§8.01-229(E)(3) and 8.01-380],” finding the initial state court “umpire proceeding” saved the federal court Complaint for contract breach and declaratory relief outside the SOL yet within 6 months of nonsuit, since the “endgame is the same,” i.e., insurance policy monetary recovery. See, Ex. 10, 2009 WL 4030729 at *3-6.

Analogously to Hatfill, says Vaughan, an umpire proceeding is but one right of action stemming from a greater cause of action, that of recovering under the policy. When this earlier right of action was nonsuited in favor of the present right of action, argues Vaughan, the statute of limitations was tolled pursuant to Va.Code §§ 8.01–229(E)(3) and 8.01–380.


That analysis is the correct one. Vaughan asserts three new rights of action—two for breach of contract, and one for declaratory relief—all of them arising out of the same set of operative facts as the umpire proceeding. And given the broad scope of an ‘action’ as defined by Virginia law, which includes ‘all civil proceedings whether upon claims at law, in equity, or statutory in nature,’ the umpire proceeding is an ‘action’ that was nonsuited. Thus, the act of nonsuiting that ‘action,’ as in Hatfill, tolled the statute of limitations for ‘all rights of action arising from that cause of action,’ id. at 335, including her present right of action for breach of contract and declaratory relief in this action.


The fact that this action seeks ‘different remedies’ than the umpire proceeding . . . in the sense that the state court only had the power to appoint an umpire while this Court may award damages and issue declaratory relief is of no moment to the analysis. The endgame is the same: Vaughan seeks money under her fire insurance policy for property lost or damaged in a fire. This action and the umpire proceeding are two separate rights of action stemming from one cause of action, and these rights of action may request a variety of remedies. After Hatfill, there is no warrant to continue to apply the ‘different remedies’ rationale . . . .


Moreover, Virginia case law indicates that ‘tolling statute[s] . . . ‘are highly remedial and should be liberally construed in furtherance of their purposes, and are not to be frittered away by any narrow construction.’ *** Liberal construction of the tolling statutes, to include an umpire proceeding as an action the nonsuit of which tolls her right to file this action for damages, is thus appropriate.


Id. at *5-6 (emphasis added)(case citations omitted in part). Vaughan denied dismissal.

In Schur in 2015, Judge Cacheris upheld as timely a medical malpractice Complaint outside the SOL yet within 6 months of nonsuit that increased ad damnum, added intentional infliction of emotional distress claim, and deleted contract claim. See, Ex. 8, 2015 WL 8484441.

The nonsuit tolling doctrine applies even though Schur did not raise an IIED claim in his general district court complaint. A new claim may benefit from the nonsuit tolling doctrine when that claim arises from the same conduct, transaction or occurrence as the nonsuited action. Dunston. *** In this case, it is clear that the IIED claim arises from the same transaction or occurrence as Schur’s prior suit for fraud, negligence, and other claims. The transaction in the prior suit involved Defendants’ alleged misdiagnosis and unnecessary treatment occurring between June and October 2012. Schur’s IIED claim is based on the same misdiagnosis and course of treatment, including Defendants’ statements regarding the seriousness of Schur’s medical condition. According to the complaint, Defendants’ misdiagnosis caused him to undergo treatment and caused him severe anxiety. Therefore, the IIED claim is part of the same cause of action as the nonsuited general district court case. Hence, the IIED claim benefits from the tolling doctrine, making it timely.


Id. at *6 (emphasis added). Schur denied dismissal.

In Quigley in 2017, Senior Judge Morgan upheld as timely a Complaint filed outside the SOL yet within 6 months of nonsuit that added §1983 claim. See, Ex. 7, 2017 WL 3821806 at *9-10. Despite being unaware of the Fourth Circuit’s 2005 Hatfill or that the Virginia Supreme Court’s 2012 McKinney defined “action” for Va. Code §8.01-229(E)(3), Quigley followed Dunston as persuasive, adopted same “transaction or occurrence” test, and denied dismissal.

  1. Virginia Circuit Courts

15 judges of 9 Virginia Circuit Courts opined for Plaintiff. 5 judges are of Fairfax County during 2011-2017, 2 judges each are of Richmond during 2011-2018 and Norfolk during 2012-2016, and 1 judge is of each of the following venues: Alexandria (2017), Chesterfield (2016), Carroll (2010), Franklin (2010), Prince William (2010), and Rockingham (2010).

In 2011 in Washington, supra, Judge Ney of Fairfax County upheld enlarged Complaint outside the SOL yet within 6 months of nonsuit. See, Ex. 20, 2011 WL 13060431 at *1. It “alleges . . . new injuries and damages . . . including past, present, and future pain and suffering, permanent injury, disfigurement, and lost earning capacity [plus] double the amount of medical bills”; which Defendant claimed was a “new and different action” time-barred by Spear. See, Ex. 29, Washington Defendant’s Mem. in Support of Plea in Bar, 2016 WL 845143.

In 2014 in the medical malpractice case of Lakani, supra, Fairfax County Judge upheld enlarged Complaint outside the SOL yet within 6 months of nonsuit. See, Ex. 18, 2014 WL 11206844 at *1. It added 6 “deviations from the standard of care” defendant claimed time-barred by Spear. See, Ex. 30, Lakani Defendant’s Mem. in Support of Plea, 2014 WL 11206734 at *1-2.

In 2016 in Jones, supra, Judge White of Fairfax County upheld Complaint outside the SOL yet within 6 months of nonsuit that added a new theory of recovery and compensatory damages, increased ad damnum, and deleted punitive damages. See, Ex. 17, Hr’g Tr. at 4.11-22.

The way I think Virginia law is on this issue is that it is the cause of action that is important. There might be minor differences in the additional allegations but the cause of action, to me, is essentially a person injury cause of action arising out of an automobile accident and that’s the cause of action which I believe was re-filed.


So far as the change of damages, the ad damnum has a cap on the recovery for a cause of action and I think that [Spears] is wrongly decided and I choose not to file it.


Id. at 7.2-14 (emphasis added).

In 2017 in Mowery, supra, the Complaint outside the SOL yet within 6 months of nonsuit added 12 negligence allegations, including 2 explications of initial general allegations, 7 details of initial allegation, and 3 specific allegations in lieu of initial catch-all “other acts and/or omissions”; plus increased ad damnum. See, Ex. 31, 3/31/17 Plaintiff’s Mem. in Opp. to Plea at 2-4. At hearing, Judge Ortiz of Fairfax County overruled the Plea. See, Ex. 14, 4/17/17 Order.

At subsequent related hearing in Mowery, Judge Tran of Fairfax County concurred:

Judge Ortiz and I have actually spoken about another case – not this case – and in terms of the refiling of a new complaint after a nonsuit had been taken. The cause of action in a medical malpractice case is simply the same as any negligence case, where if the issue was presented to me, other acts that could constitute negligence could be added on a refiled complaint that had been nonsuited; another cause of action couldn’t be added.


See, Ex. 13, 7/28/17 Hr’g Tr. at 5.17-6.4 (emphasis added).

On October 19, 2018, in the medical malpractice case of Huffman, supra, Judge Rupe of Richmond upheld as timely an enhanced Complaint outside the SOL yet within 6 months of nonsuit. See, Ex. 35, 10/19/18 Order. It added 3 new negligence allegations. See, Ex. 36, Huffman Brief in Opp. to Defendant’s Plea in Bar, at 1-2. Huffman denied the Plea.

In 2017 in the medical malpractice case of Panth, supra, Judge Clark of Arlington upheld a Complaint outside the SOL within 6 months of nonsuit that added 4 new detailed negligence allegations. “Under these facts, the law supports applying the ‘same transaction or occurrence test’ [applied inter alia in Schur and Dunton]. The Court rejects the ‘same evidence’ test urged by defendants and applied in Lawton-Gunter.See, Ex. 15, 2017 WL 342545 at *1-2.

In 2016 in Stinnett, supra, Judge Rockwell of Chesterfield upheld Complaint outside the SOL yet within 6 months of nonsuit that increased ad damnum. See, Ex. 32, 12/2/16 Plaintiff’s Mem. of Law in Opp. to Plea in Bar at 1. Stinnett denied the Plea. See, 12/9/16 Order.

In 2016 in Whitson, supra, Judge Migliozzi of Norfolk upheld an enlarged Complaint outside the SOL yet within 6 months of nonsuit. See, Ex. 16, 2016 WL 9343688 at *1. It increased ad damnum and added pre-judgment interest claim, which defendant argued was “not the same action” per Spear. See, Ex. 33, 7/21/16 Whitson Plea in Bar, 2016 WL 9340639.

In 2012 in Jackson, supra, Judge Burrell of Norfolk upheld a Complaint filed outside the SOL yet within 6 months of nonsuit that increased ad damnum. “[C]hanging the ad damnum does not convert the original cause of action into a new cause of action that would prevent the Plaintiff from availing itself of the extension that §8.01-299(E)(3) provides because the new action is still based on the same underlying ‘set of operative facts’ that ‘give rise to one or more rights of action’.” See, Ex. 19, 85 Va. Cir. at 267-69. Jackson overruled the Plea. Id. at 269.

In 2011 in Potter, supra, Richmond Judge upheld a Complaint outside the SOL yet within 6 months of nonsuit that added new negligence allegations and new punitive damages claim, plus increased ad damnum. See, Ex. 34, 1/31/11 Plaintiff’s Brief in Opp. to Defendant’s Plea in Bar, at 1-2. Potter overruled the Plea. See, 2/6/11 Order.

In 2010 in the medical malpractice case of Farmer, supra, Judge Geisler of Carroll upheld a Complaint outside the SOL yet within 6 months of nonsuit that added “several [new] factual allegations regarding dates, procedures, omissions” and increased ad damnum.

Both complaints speak to the theory of the case, which is simply medical malpractice. Clearly the second complaint is more detailed and fact specific about the theory of medical malpractice but again, there is no new theory asserted other than medical malpractice. *** [B]oth complaints detail a theory of alleged conduct by the Defendants in relation to their treatment of Ms. Phyllis Farmer over a period of time beginning April 2005 through March 2006. *** Again, the cause of action herein is and has always been plead [sic] as a medical malpractice case arouse [sic] out of conduct involving the Defendants’ treatment and relationship with Ms. Farmer.


See, Ex. 22, 10/7/10 Letter Op. at 1-2 (emphasis added). Farmer denied dismissal. Id. at 2.

In 2010 in Hatcher, supra, Judge Alexander of Franklin upheld an enlarged Complaint outside the SOL yet within 6 months of nonsuit, and denied dismissal. See, 8/23/10 Order. In 2010 in Wood, supra, Judge Hamlin of Prince William upheld an enlarged Complaint outside the SOL yet within 6 months of nonsuit, and denied dismissal. See, Ex. 23, 6/18/10 Order.

In 2010 in O’Hearn, supra, Judge Lane of Rockingham upheld a Complaint outside the SOL yet within 6 months of nonsuit that increased ad damnum for compensatory damages and deleted punitive damages, see, Ex. 24, 80 Va. Cir. at 11; following Hatfill:

Reading §8.01-229(E)(3), this Court also finds that the proper inquiry as to whether a new claim is saved is whether it is part of the same set of operative facts that may give rise to a right of action. While the saving statute does use the word ‘action,’ reading that word strictly would render moot the nonsuit statute’s authorization for a plaintiff to nonsuit a ‘cause of action’.


Id. at 13 (emphasis added). O’Hearn denied dismissal. Id.

  1. Analogous Amendment Authority

Analogously, amendment of Complaints outside the SOL also is governed by the same “conduct, transaction, or occurrence” test, not the old abrogated “same evidence” test.

First, contrary to Vines in 1992, in 1993 the Virginia Supreme Court in Carter v. Williams, 246 Va. 53 (1993) followed the broad pro-amendment “transactional approach” of New River Mtn. Co. v. Painter, 100 Va. 507 (1902), which holds that changing the “mode” or “form” of demand does not state a new cause of action. Citing New River, Carter reiterated:

When the plaintiff in the amended bill attempts to assert rights and to enforce claim ‘arising out of the same transaction or act,’ however great the difference in the form of liability as contained in the amended bill from that stated in the original bill, the amendment will not be viewed as stating a new cause of action. Id. Thus, an amendment does not constitute a new or different cause of action if it ‘only varied the mode of demanding the same thing.

246 Va. at 57 (emphasis added).

Second, in 1996 newly enacted Va. Code §8.01-6.1 codified a new three-part “transactional approach” test for “relation back” of amendments filed outside the SOL:

(i) the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading; (ii) the amending party was reasonably diligent in asserting the amended claim or defense, and (iii) parties opposing the amendment will not be substantially prejudiced in litigating on the merits as a result of the timing of the amendment.


(emphasis added). “The statute altered the limited definition of the term ‘cause of action’ employed by [the Virginia Supreme] Court in Vines v. Branch, 244 Va. 185, 418 S.E.2d 890 (1992). As with the enactment of Code §8.01-272 and -281, the passage of Code §8.01-6.1 reflected the General Assembly’s shift to a transactional approach, but again the General Assembly left intact the common law rule followed in Carter [v. Williams, 246 Va. 53 (1993)].” Davis v. Marshall Homes, Inc., 265 Va. 159, 184 (2003)(dissent).

Third, and dispositively, consistent with Carter and §8.01-6.1, in 2006 the Virginia Supreme Court amended Rule 1:6 (Res Judicata and Claim Preclusion). Rule 1:6 mirrors the expansive same “conduct, transaction or occurrence” test “regardless of the legal elements or the evidence upon which any claims in the prior proceeding depended”. Id. (emphasis added).

“The Davis [‘same evidence’ majority] opinion remained the law of the Commonwealth until our adoption of Rule 1:6 [‘conduct, a transaction, or an occurrence’ test].” Caperton v. A.T. Massey Coal Co., 285 Va. 537, 551 & n.7 (2013). Under Davis in 2003, “prior to the enactment of Rule 1:6 [in 2006] . . . [t]o establish identity of cause of action, a party formerly had to show that the prior and subsequent claims required the same evidence. By contrast, Rule 1:6 explicitly does not rely on a showing of the same evidence or elements . . . . Virginia’s ‘transactional’ test under Rule 1:6 replaced the prior ‘same evidence’ test”. Rhoten v. Commonwealth, 286 Va. 262, 270 (2013)(citations omitted).

Fourth, consistent with the unitary “transactional approach,” in 2013 the Virginia Supreme Court in Kiser v. A.W. Chesterton Co., 285 Va. 12, 21-22 (2013) delineated that “[a]lthough multiple rights of action may arise under a given cause of action, a wrongful act generally gives rise to only a single indivisible cause of action” (italics original):

A cause of action does not consist of facts, but of the unlawful violation of a right which

the facts show. The number and variety of the facts alleged do not establish more than

one cause of action so long as their result, whether they be considered severally or in

            combination, is the violation of but one right by a single legal wrong. The mere  

multiplication of grounds of negligence alleged as causing the same injury does not

result in multiplying the causes of action. The facts are merely the means, and not the

end. They do not constitute the cause of action, but they show its existence by making

the wrong appear. The thing, therefore, which in contemplation of law as its cause,

becomes a ground for action, is not the group of facts, alleged in the declaration, bill, or

indictment, but the result of these is a legal wrong, the existence of which, if true, they

            conclusively evince.


Id. (italics original)(underlining added). “The number and variety of facts alleged do not establish more than one cause of action [for personal injuries]”. Id. at 23 (emphasis added).

Fifth, the following fourteen (14) anti-Vines cases also support Plaintiff amendment “relating back”. See, e.g., Butler v. Anglero, 95 Va. Cir. 77, 77-80 (Chesapeake Jan. 12, 2017)(medical malpractice); Rauchfuss v. Peninsula Radiological Assocs., Ltd., 2016 WL 1752781 (Newport News Apr. 28, 2016)(medical malpractice); Eason v. Sentara CarePlex Hosp., 2015 Va. Cir. LEXIS 168, 2015 WL 6870239 (Hampton Oct. 30, 2015)(medical malpractice); Law v. PHC-Martinsville, Inc., 89 Va. Cir. 231 (Henry/Patrick/Martinsville Oct. 2, 2014)(medical malpractice); Turner v. B&S Site Development, Inc., 2014 WL 7661890 (Prince William Aug. 22, 2014); Shaver v. HPB Corp., 84 Va. Cir. 382 (Charlottesville Mar. 19, 2012); Clark v. Britt, 79 Va. Cir. 60 (Fairfax Apr. 24, 2009); Stanley v. Storck, 61 Va. Cir. 515 (Norfolk May 9, 2003); Ritchie v. Norton Comm. Hosp., 55 Va. Cir. 96 (Wise Mar. 15, 2001)(medical malpractice); Wallace v. Zoller, 52 Va. Cir. 80 (Winchester Mar. 7, 2000)(medical malpractice); Atkins v. Chesler, 50 Va. Cir. 365 (Charlottesville Nov. 1, 1999)(medical malpractice); Thomas v. Lipscomb, 37 Va. Cir. 301 (Washington Oct. 27, 1995)(medical malpractice); and Stevens v. Hosp. Auth. of the City of Petersberg, 42 Va. Cir. 321 (Richmond May 27, 1997)(medical malpractice)(Lemons, J.). Significantly, Virginia Supreme Court Chief Justice Lemons authored the seminal Stevens opinion in 1997 as circuit judge. Despite the post-Vines Carter, amendment of Va. Code §8.01-6.1, Davis dissent, Rule 1:6(a) amendment, and dozens of cases embracing the new “same conduct, transaction and/or occurrence” test, some Defendants brazenly continue trying to claim and persuade that the old abrogated “same evidence” test still is the law.

Plaintiff understands Defendant WLI will rely solely on pleadings for its Plea. However, if it actually seeks to introduce any evidence, then Plaintiff hereby demands trial by jury for any issue of fact. See, Bethel Investment Co. v. City of Hampton, 272 Va. 765, 770 (2006).