Virginia: Medical Malpractice – a Lawyer’s Timeliness

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Va. Code §8.01-6.1 provides “relation back” and thereby timeliness of a Complaint amendment filed after the statute of limitation has run if:

(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 following jurisprudence supports plaintiff amendments “relating back”. See, e.g., Dunston v. Huang, 709 F.Supp.2d 414 (E.D. Va. 2010)(medical malpractice)(Virginia law); Eason v. Sentara CarePlex Hosp., No. CL 12-470, Letter Op., 2015 Va. Cir. LEXIS 168, 2015 WL 6870239 (Hampton Oct. 30, 2015)(medical malpractice); Law v. PHC-Martinsville, Inc., 89 Va. 231 (Henry/Patrick/Martinsville 2014)(medical malpractice); Shaver v. HPB Corp., 84 Va. Cir. 382 (Charlottesville 2012); Clark v. Britt, 79 Va. Cir. 60 (Fairfax 2009); Stanley v. Storck, 61 Va. Cir. 515 (Norfolk 2003); Ritchie v. Norton Comm. Hosp., 55 Va. Cir. 96 (Wise 2001)(medical malpractice); Wallace v. Zoller, 52 Va. Cir. 80 (Winchester 2000)(medical malpractice); Atkins v. Chesler, 50 Va. Cir. 365 (Charlottesville 1999)(medical malpractice); and Stevens v. Hosp. Auth. of the City of Petersberg, 42 Va. Cir. 321 (Richmond 1997)(Lemons, J.).

  1. Arose out of the conduct, transaction or occurrence.

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)(emphasis added).

Contrary to Vines, Carter had reaffirmed the broad pro-amendment “transactional approach” of New River Mtn. Co. v. Painter, 100 Va. 507 (1902).

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 299 (emphasis added). Carter underscored: “It is immaterial whether the facts alleged amount to ‘undue influence’ [as in the original complaint], or ‘fraud’ [as in the amended complaint], or both.” Id. Both complaints “alleged improper conduct”; the relief sought “arose out of the same transaction or act”; and “amendment varied only the mode of demanding the same relief”. Id.

Federal court in Dunston, 709 F.Supp.2d at 418-20, embraced the New River/Carter/ Marshall “transaction or occurrence test” in detail. Presaging Marshall, state courts in Wallace, 52 Va. Cir. at 82-84, and Clark, 79 Va. Cir. at 64-66, followed New River/Carter and rejected Vines, “which focused on the elements of rights of action asserted as opposed to the underlying transactional basis of the rights of action in determining whether the later asserted right of action related back to the original filing.” 52 Va. Cir. at 82.

“Defendants fail to understand the important distinction between the broad transactual concept of cause of action, and the more narrow remedial concept of right of action as applied by the Supreme Court today.” Wallace. Id. “§8.01-6.1 is a clear unambiguous departure from the formulaic assessment of elements set forth in the Vines test.” Clark, 79 Va. Cir. at 66.

In 1997 in the medical malpractice case of Stevens, Virginia Supreme Court Chief Justice Lemons as circuit court judge defined the transactional touchstone broadly as patient “care” and found that “the new claim of [medical malpractice as amended] arises out of the same conduct, transaction, or occurrence as set forth in the original pleadings [alleging only Restatement 319, 329, and 324 duties], namely the care of Ms. Matthews”. 42 Va. Cir. at 334, 337 (emphasis added). Likewise in 1999 another medical malpractice case, Atkins, defined the transactional touchstone broadly as “negligence,” in finding the same “occurrence”. 50 Va. Cir. at 366. Similarly in 2000 yet another medical malpractice case, Wallace, defined the transactional touchstone broadly as “defendant’s [discussions,] diagnosis and treatment,” and found new claims of informed consent and fraud “arose out of the [same] conduct, transaction, or occurrence”. 52 Va. Cir. at 84. Consistently in 2001 still another medical malpractice case, Ritchie, found that amendment adding 2 new breach allegations “arose out of the [same] conduct, transaction, or occurrence … and … varied only the mode of demanding the same relief.” 55 Va. Cir. at 98. In 2003, Stanley held “new statements arose out of the same conduct”. 61 Va. Cir. at 517. In 2009, Clark opined that the amendment’s new wrongful death and civil conspiracy claims and new factual allegations of physical assault “involve[d] the same basic conduct: the circumstances at the Britt residence”. 79 Va. Cir. at 66. In 2010 another medical malpractice case, Dunston, held that new allegations of “failure to perform an alternative procedure and lack of informed consent” arose out of a “single visit” and “relate to a common transaction or occurrence,” and that “the same evidence test [of Vines] no longer applies to define a cause of action”. 709 F.Supp.2d at 420-41. In 2012, Shaver held that new claims of respondeat superior liability were not a new cause of action. 84 Va. Cir. at 384. In 2014 yet another medical malpractice case, Law, rejected the “same evidence” test, applied the broader “same transaction” test, and found “the new [breach] claims clearly arise out of the same transaction – the treatment of the plaintiff during her hospitalization”. 89 Va. Cir. at 232-33.

Plaintiff’s cause of action is “negligence,” and her right of action (claim) is “survival for personal injuries” and/or wrongful death. See, e.g., McKinney v. Va. Surgical Assocs., P.C., 284 Va. 455 (2012). Her additional amended factual allegations of breach arise out of the same transaction, the patient’s “care” during her single hospitalization, just like plaintiff in Chief Justice LemonsStevens case.

  1. Reasonably” diligent in asserting.

Significantly, §8.01-6.1 does not require “due diligence,” only that Plaintiff be “reasonably diligent,” a comparatively relaxed standard. However, because some early cases’ amendments added new “fraud” claims, and Virginia law expressly imports the “due diligence” to assess the timeliness of fraud, the “reasonably diligent” standard and the “due diligence” standard have been juxtaposed, see, e.g., Wallace; and subsequent cases have blurred/merged the definitions. See, e.g., Clark.

In Stevens, Chief Justice Lemons found reasonable diligence as follows: “The court does not find that Fultz was not reasonably diligent”. 42 Va. Cir. at 337 (emphasis added). Atkins found that “although Plaintiff filed suit over two years ago, counsel was ‘reasonably diligent’ in asserting her claim given the current status of the case.” 50 Va. Cir. at 366. Ritchie found reasonable diligence despite plaintiff having non-suited the prior year and being “represented by new attorneys;” specific years are lacking, yet duration appears long. 55 Va. Cir. at 98. Wallace too found plaintiff “diligent”. 52 Va. Cir. at 84.

Notably, Stanley and Clark underscore Plaintiff’s need for discovery – and Defendant’s notice by discovery:

Plaintiff could not have known the exact words spoken to the reporters until Plaintiff had taken their depositions. Defendant points out that there was a year between Plaintiff’s taking their depositions and the amendment of the counterclaim. However, Defendant had notice of the content of the statements through the original pleadings and the deposition testimony.

Stanley, 61 Va. Cir. at 517 (emphasis added). Plaintiff “did not receive answers to her questions until after she filed the first suit. *** It was the greater specificity of facts gained from subsequent discovery.” Clark, 79 Va. Cir. at 67 (emphasis added).

8.01-6.1 only requires Plaintiff to be reasonably diligent in “asserting”. Simply “asserting” is broader than “moving”: placing Defendant on notice by conducting and/or amending discovery suffices as “asserting”.

Dunston, Shaver, and Law readily upheld amendments after multiple years had passed. In Dunston, Plaintiff twice amended the complaint and even nonsuited more than 3 years after the medical malpractice. In Shaver, where Plaintiff was injured in 2006, sued in 2008, nonsuited in 2010, and moved to amend in 2011 (more than 5 years later), the court found amendment “in furtherance of the ends of justice”. 84 Va. Cir. at 384. Law was 5 years: Plaintiff was injured by medical malpractice in 2009, sued in 2011, nonsuited in 2012, refiled in 2012, and amended in 2014. 89 Va. Cir. at 232. The medical malpractice case of Eason was more than 7 years to second amendment: Plaintiff was injured by alleged medical malpractice in September, 2008, sued in 2010, nonsuited in 2011, refiled in 2012, amended in 2013, and amended again in October, 2015. 2015 Va. Cir. LEXIS 168, 2015 WL 6870239.

iii.        Not be “substantially” prejudiced.

In the Stevens medical malpractice case, Chief Justice Lemons found Defendant would not be substantially prejudiced by focusing on the timing of trial and discovery: “Trial is not imminent and the parties just began discovery.” 42 Va. Cir. at 337 (emphasis added). The Atkins medical malpractice case followed Stevens and found Defendant was not substantially prejudiced where amendment was sought before trial was set and before discovery was “substantially completed”. 50 Va. Cir. at 366. The Ritchie medical malpractice case found Defendant was not substantially prejudiced “at this stage of the trial [proceedings].” 55 Va. Cir. at 366.

The Wallace medical malpractice case underscored that Defendants “have produced no evidence” to prove they were substantially prejudiced. 52 Va. Cir. at 84 (emphasis added). Clark “was not convinced that the timeliness of the Amended Motion for Judgment substantially prejudiced”. 79 Va. Cir. at 68 (emphasis in original).

Shaver held that “defendant has received sufficient notice that leave to amend would not cause prejudice to the defendant,” despite that Motion for Leave to Amend was filed after more than 5 years and there was an intervening nonsuit. 84 Va. Cir. at 384. The medical malpractice cases of Dunston and Law did not find substantial prejudice, despite amendments after more than 4 and 5 years, respectively, with intervening nonsuits in both cases. 709 F.Supp.2d 414; 89 Va. Cir. 231. The medical malpractice case of Eason opined: “I find that neither the facts of these pleadings nor the procedural history prohibit the desired Amendment.” 2015 Va. Cir. LEXIS 168, 2015 WL 6870239.

Like Defendant in Peterson v. Castano, 260 Va. 299, 301-02 (2000), who unsuccessfully opposed amendment, Defendant still has “sufficient time to undertake any additional discovery,” to name experts, and otherwise to defend at trial. Therefore “substantial prejudice” is not shown.