Virginia: Medical Malpractice – a Lawyer’s Authority

Virginia: Medical Malpractice – a Lawyer’s Authority

A Plaintiff once provided Defendants the precise “statements” and citations of his reliable authority more than 30 days before trial in a medical malpractice case. Also, more than 30 days before trial, he gratuitously provided them the full pages of the textbooks and articles in which each of those “statements” appeared.

Va. Code Ann. §8.01-401.1 does not even mention the word “article,” though Defendants still claimed it must be provided. §8.01-401.1 only requires that the discrete specific “statements” relied by a party upon be provided in a medical malpractice suit.

In the medical malpractice trial of May v. Caruso, 264 Va. 358, 361 (2002) (emphasis added), the only authority cited by Defendants, the party “failed to identify, as required by Code 8.01-401.1, the specific statements Dr. Waldo had relied upon to reach his expert opinion.” May simply upheld exclusion for the party failing “to adequately identify the statements,” id. at 363 (emphasis added); it did not hold that the only way to identify statements is to underline/highlight them in an article.

Five years after May, another medical malpractice decision, Budd v. Punyanitya, 273 Va. 583, 588 (2007) (emphasis added), observed that underlining or highlighting is not the only way to adequately identify “statements”. “Budd conceded that he did not provide counsel for Dr. Punyanita with copies of the designated article or otherwise indicate the statement…” Id.

In Healy v. Shegog, No. 00-1249 (Hampton August 2004) (Lerner, J.) and Johnson v. Riverside Hosp., Inc., No. CL002963B-DP c/w No. CL01-30571-DP (Newport News March 2005) (Pugh, J.), Mr. Waterman adequately identified the “statements” simply by providing defendants the typed “statements” with citations. Plaintiffs did not even provide the pages on which the “statements” appeared in those medical malpractice actions, let alone textbooks or articles.