Virginia: Medical Malpractice – a Lawyer’s Preclusion

Virginia: Medical Malpractice – a Lawyer’s Preclusion

Effective July 1, 2006, Va. S. Ct. Rule 1:6 adopted “transactional” analysis for res judicata and issue preclusion.  Specifically, it bars “any second or subsequent civil action against the same opposing party or parties on any claim or cause of action that arises from the same conduct, transaction, or occurrence”.  (emphasis added)

 

Accordingly, per Rule, statute, regulation, jurisprudence, and commentators, infra: [A] nonsuit is irrelevant to res judicata, claim preclusion, and claim splitting; [B] 12 VAC 5-371-140(G) declaratory judgment action and a medical malpractice suit for wrongful death monetary damages are not the “same” cause of action; [C] numerous practical facts and circumstances must be compared to scrutinize whether two actions arise out of the same transaction, conduct, or occurrence; [D] the fact disputes and monetary damages of a medical malpractice action could not have been litigated in a consolidated declaratory judgment action, which statutorily is limited only to interpretations; and [E] declaratory judgment – even in the “same” cause of action – enjoys special treatment under res judicata principles and is not a bar to subsequent damages claims.

 

  1. Temple, Lambert, and Russell show nonsuit to be a nullity and red-herring.

 

Temple v. Mary Washington Hosp., Inc., 288 Va. 134, 140-41 (2014) dictates: (1) once plaintiff nonsuits, it is as if that “action had never been filed, as a nonsuit ‘leaves the situation as if the suit never had been filed’;” (2) without “incorporation following a nonsuit, it is as if those [prior discovery] motions, objections, and rulings never existed since the [refiled] action is ‘new’ and ‘stands independently of any prior nonsuited action’;” and (3) rulings denying discovery of policies in the nonsuited action are not properly before the Court after nonsuit. (emphasis added). Consistent with Temple, earlier in Lambert v. Javed, 273 Va. 307 (2007), the Virginia Supreme Court predicated res judicata on the identical second and third medical malpractice actions for wrongful death filed, not the first wrongful death that non-suited. Likewise, previously Russell v. Hartsoe, 2006 WL 3420840 (Fairfax 2006) presaged and expressly held that nonsuit is not a dismissal with prejudice or final determination on merits, so res judicata principles do not apply to it.

 

  1. Cherrie v. Virginia Health Services, Inc., No. CL14-340 (Gloucester Mar. 18, 2016).

 

            On March 18, 2016, Gloucester Circuit Court held that under Rule 1:6 a consolidated declaratory judgment action for interpretation of 12 VAC 5-371-140(G) and a medical malpractice wrongful death action did not arise from the “same conduct, transaction, or occurrence”.  Cherrie v. Virginia Health Services, Inc., et al., No. CL14-340, Ruling (Gloucester Mar. 18, 2016).  Notably, this pro-plaintiff decision involving declaration judgment is one of “first impression” in Virginia under amended Rule 1:6.

 

  1. Professor Kent Sinclair, Virginia Civil Procedure §14.11 (6th ed.)

 

In his treatise, Virginia Civil Procedure §14.11 (6th ed.), Professor Kent Sinclair emphasizes that determining whether actions arise out of the same conduct, transaction or occurrence under Rule 1:6 requires comparison of numerous claim facts; that Rule 1:6 still may require two trial concerning the same facts; and that claim preclusion simply does not apply to nonsuits:

 

  1. In §14.11[B][5], under Legislative Context for a New Rule, Sinclair explains: “The determination of what factual grouping constitutes the ‘conduct, transaction or occurrence’ out of which the original claim arose is not dictated by the planned Rule [1:6], and will involve considerations such as whether the facts are related in time, place, and the participants, whether their treatment as a unit conforms to common usage and understanding, the parties’ expectations, or business understanding or usage, in light of the pleadings in the original case.” See, Sinclair, Virginia Civil Procedure, §14.11[B][5] (2016) (emphasis added).

 

  1. Also in §14.11[B][5], under Scope of Conduct, Transaction or Occurrence, Sinclair underscores: “The canons of construction for determining what factual grouping constitutes the ‘conduct, transaction or occurrence’ out of which the original claim arose are not spelled out in Rule 1:6. However, in the other states and the federal courts, which apply the same test as is now applicable in Virginia under this Rule, the determination is made pragmatically, giving weight to such considerations as whether the facts are related in time, place, origin, actions, participants or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to common usage and understanding, the parties’ expectations, or business understanding or usage.” Id. (emphasis added).

 

  1. Additionally in §14.11[B][5], under Other Principles, Sinclair emphasizes: “Rule 1:6 will not change the fact that sometimes one trial will not suffice, making it necessary to preserve the option of a second trial relating to the same facts.Id. (emphasis added).

 

  1. Finally, in §14.11[B][5] under the same heading, Sinclair observes: “Claim preclusion, for example, does not apply to … nonsuits and dismissals without prejudice.” Id. (emphasis added).

 

  1. Lee, Rhoten, and Lambert delineate same conduct, transaction, or occurrence:

 

Rhoten v. Commonwealth, 286 Va. 262 (2013) and Lee v. Spoden, 290 Va. 235, 776 S.E.2d 798 (2015) are the Virginia Supreme Court’s most recent pronouncements on Rule 1:6, feature language favorable to Plaintiffs (consistent with Cherrie and Professor Sinclair), and found no bar and only partial bar, respectively, 286 Va. at 269-72; 776 S.E.2d at 805-06. Lambert v. Javed, 273 Va. 307 (2007) is a factually-distinguishable medical malpractice case applying res judicata to the same successive suits.

 

Lee observed that claim preclusion under Rule 1:6 barred “successive litigation of the very same claim,” 776 S.E. 2d at 803; and delineated what constituted “same conduct, transaction or occurrence” – same cause of action, i.e., same “set of operative facts” giving “rise to a right of action”:

 

In determining whether the subsequent action involves the same conduct, transaction or occurrence [under Rule 1:6]. our focus is on whether that action is based on the same or a different cause of action. *** A cause of action is a set of operative facts which, under the substantive law, may give rise to a right of action.

 

Id. at 805 (emphasis added). Lee found the same cause of action – the same conduct, transactions, or occurrences – for both claims arising out of property Term Sheet breaches, id. at 805-06; but not for claims arising out of related subsequent property sale. Id. at 806.

 

Likewise, Rhoten found that civil commitment litigated on circumstances in 2005 did not bar similar related proceedings on circumstances in 2011. “The 2011 petition was not dependent upon the same evidence as the 2005 proceeding, nor did the 2011 petition arise from the same conduct, transaction, or occurrence.” 286 Va. at 271-72 (emphasis added).

 

In Lambert, plaintiff filed three medical malpractice suits stating claims for wrongful death and breach of warranty, each with slight variations of additional claims and/or parties:

 

  1. The first was against Merit Medical Group and other defendants;

 

  1. The second added defendants and negligent hiring/supervision claims; and

 

  1. The third dropped Merit Medical Group as defendant.

 

273 Va. at 309. Lambert appropriately found second and third suits to be the “same cause of action,” id., and did not predicate res judicata on the first suit because it was nonsuited.

 

  1. Medical malpractice action cannot be litigated under Declaratory Judgment Act.

 

The Virginia Declaratory Judgment Act, Va. Code §8.01-184, et seq., provides for “interpretation” of certain regulations, documents, etc.  It also may determine “other instances of actual antagonistic assertion and denial of right”. Id.

 

As a pure creature of statute, Virginia declaratory judgment action is not permitted to adjudicate “disputed fact [that] would be determinative of issues”. Williams v. Southern Bank of Norfolk, 203 Va. 657, 663 (1962). Also, declaratory judgment action is not permitted to adjudicate “money judgment”. Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414, 421 (1970); GiniCorp v. Capgemini, 2007 Va. Cir. LEXIS 5 (Fairfax Jan. 2, 2007).

 

Virginia Imports, Ltd. v. Kirin Brewery of America, LLC, 50 Va. App. 395 (2007), found no res judicata bar where the court lacked subject matter jurisdiction in the first action.  Virginia Supreme Court Justice Kelsey writing as Virginia Court of Appeals Judge affirmed the decision of former Virginia Supreme Court Justice Roush as Circuit Court Judge, pronouncing: “claim preclusion can never apply when the ostensibly barred claim falls outside the subject-matter jurisdiction of the tribunal and thus could not have been adjudicated in the prior action”. Id. at 410 (emphasis added).

 

In Barron v. Netversant-Northern Virginia, Inc. 68 Va. Cir. 247, n. 2 (Fairfax 2005), former Virginia Supreme Court Justice Roush as Circuit Court Judge overruled defendant’s plea in bar asserting improper claim splitting where declaratory judgment was involved, and Judge Bellows declined to reconsider that ruling.  Significantly, as in Cherrie (yet prior to Rule 1:6 amendment) the Barron plaintiff filed a declaratory judgment action and then an action for damages (both of which were based on the same employment agreement).

 

  1. Declaratory judgment is an exception to res judicata principles.

 

Restatement (Second) of Judgments §33 (1982) indicates that declaratory judgment is not subject to ordinary rules of claim preclusion by res judicata or claim splitting. “A valid and final judgment in an action brought to declare rights or other legal relations of the parties is conclusive in a subsequent action between them as to the matters declared, and, in accordance with the rules of issue preclusion, as to any issues actually litigated by them and determined in the action.” Id. (emphasis added). See, Ex. 10.

 

Its Comment “c,” entitled “Effects as to matters not declared,” specifically states that a subsequent action for “coercive relief,” e.g., monetary damages, may be pursued after seeking declaratory judgment relief. “When a plaintiff seeks solely declaratory relief, the weight of authority [is] regardless of the outcome, the plaintiff or defendant may pursue further declaratory or coercive relief in a subsequent action.” Id. (emphasis added). See, Ex. 10.

 

Canvassing law across the nation in a scholarly 2008 opinion, the First Circuit Court of Appeals observed that the overwhelming majority rule is declaratory judgment results only in issue preclusion. “The vast majority of states that have addressed this problem unapologetically apply a special rule of claim preclusion, consistent with that of section 33 of the Second Restatement in the declaratory judgment context.” Andrew Robinson Int’l, Inc. v. Hartford Fire Ins. Co., 547 3d 48, 56-57 (1st Cir. 2008)(and cases cited therein).

 

This includes states who have accepted the “transactional approach” to res judicata like Virginia. E.g., Umhey v. The County of Orange, New York, 957 F.Supp. 525, 527 (S.D. N.Y 1997). Hence for decades litigants after declaratory judgment have been entitled to pursue subsequent suits for monetary damages arising out of the same cause of action. E.g., id. at 527-28; Horn & Hardart Co. v. Nat’l Rail Passenger Corp., 843 F.2d 546-548-50 (D.C. Cir. 1988); Magaldi v. Safeco Ins. Co. of Am., 2010 WL 2542011, *3-5 (S.D. Fla. 2010); Muhammad v. City of Chicago, 1987 WL 15754, *2-3 (N.D. Ill. 1987); and Eason v. The Board of County Commissioners of the County of Boulder, 961 F.2d 537, 540 (Colo. App. 1997).