Virginia: Medical Malpractice – a Lawyer’s Diligence

Virginia: Medical Malpractice – a Lawyer’s Diligence

Citing Va. Code Ann. §8.01-296, Defendant Riverside doctors emphasize that Plaintiff did not attempt to serve them at their homes in the birth-related personal injury lawsuit for medical malpractice of Andre L. Gibbons, Jr., et al. v. Riverside OB/GYN and Family Care, et al., No. CL10-2326T-01 in Circuit Court for the City of Newport News, Virginia. Under §8.01-296, however, service at home is permissible, but not required.

§8.01-296 permits service anywhere. Personal service commonly is effected at defendants’ places of business, including through their agents there – for example, Dr. James M. Mullins, III was served with medical malpractice suit papers at his place of business on August 9, 1999, in Shannon S. Fernandez, et al. v. James M. Mullins, III, No. CL9927106H-02 in Newport News Circuit Court, without any objection.

Plaintiff’s experienced professional process servers actually served Defendant Riverside doctors in the Gibbons medical malpractice case through their respective agents who represented that they could accept service at their regular places of business on December 5 and 6, 2011, respectively; which should be good service of process within 1 year of filing. That is reflected in the Service Returns properly filed with the Court Clerk.

Even if arguendo service of Defendant Riverside doctors in the Gibbons medical malpractice action within 1 year of filing was not effective (which is denied), that should not be fatal under the circumstances at bar. Plaintiff again served Defendant Riverside doctors promptly after they filed defensive pleadings, which comes within the “due diligence” exception ignored by Defendants.

Va. Code Ann. §8.01-275.1 cited by Defendant Riverside doctors in the Gibbons medical malpractice lawsuit also mandates: “Service of process on a defendant more than twelve months after the suit or action was commenced shall be timely upon a finding by the court that the plaintiff exercised due diligence to have timely service made on the defendant.” (emphasis added). Likewise, Va. Code Ann. §8.01-277(B) cited by Riverside Defendant doctors provides:

Upon finding that the plaintiff did not exercise due diligence to have timely service and sustaining the motion to dismiss, the court shall dismiss the action with prejudice. Upon finding that the plaintiff did exercise due diligence to have timely service and denying the motion to dismiss, the court shall require the person filing such motion to file a responsive pleading within 21 days of that ruling.

(emphasis added). To the same effect is Va. Sup. Ct. R. 3:5: “No order, judgment or decree shall be entered against a defendant who was served with process more than one year after the institution of the action against that defendant unless the court finds as a fact that plaintiff exercised due diligence to have timely service on that defendant.” (emphasis added).

Defendant Riverside doctors in the Gibbons medical malpractice suit assert that the Norfolk Circuit Court decision in Drewry v. Nottingham, 62 Va. Cir. 269 (Norfolk Mar. 22, 2004) is dispositive in their favor. But it is not. It is distinguishable on three (3) alternate grounds.

First, unlike Plaintiff in the Gibbons medical malpractice case, plaintiff in Drewry simply posted at the wrong home address for defendants. Second, unlike Plaintiff in Gibbons, plaintiff in Drewry never effected service on defendant. Third, unlike Plaintiff in Gibbons, plaintiff in Drewry made no showing of “due diligence”. Id. at 269-272.

Moreover, Drewry cited the Virginia Supreme Court for the following definition of “due diligence”: “such a measure of prudence, activity, or assiduity, as is properly to be expected from, and expected by, a reasonable and prudent man under the particular circumstances, not measured by any absolute standard, but depending on the relative facts of the special case.” Id. at 272 (quoting STB Marketing Corp. v. Zolfaghari, 240 Va. 140, 144 (1990))(emphasis added). Plaintiff in the Gibbons medical malpractice action exercised “due diligence” – was reasonably prudent – under STB. Plaintiff: (1) verified the places of business of Riverside Defendant doctors; (2) requested issuance of Summonses promptly after obtaining the prerequisite written expert certification under Va. Code Ann. 8.01-20.1; (3) promptly delivered the Summonses to a professional process server for service; and (4) understood and relied that process was served through doctors’ agents who advised they were authorized to accept such service.

Plaintiff in the Gibbons medical malpractice lawsuit is more closely akin Palum v. Quinn, 59 Va. Cir. 35 (Loudoun Mar. 18, 2002). In Palum, plaintiff attempted substituted service at what erroneously was believed to be defendant’s home address within 1 year of filing, which service was quashed; and then posted service at defendant’s actual home address 15 months after filing. Id. at 38. Finding that plaintiff in Palum “acted in good faith” and “had a reasonable belief,” Judge Chamblin found “due diligence” and denied the Motion to Dismiss. Id. at 39-40.

Judge Chamblin in Palum observed, “Since the trial court has the discretion to waive the rule [about serving within 1 year] where it finds the plaintiff to have behaved in good faith, the rule cannot be considered to be a jurisdictional rule; it is, rather, a administrative, quasi-penal one.” Id. at 39 (quoting W. Hamilton Bryson, Bryson on Virginia Civil Procedure (3d Edition) at 110). “While the definition of ‘due diligence’ approved in Dennis appears to impose upon a plaintiff a strong duty to accomplish timely service, I think that the duty needs to be considered in the relation to the reason for the rule and the statute.” Id. (emphasis added). Re the plaintiff in Palum like Plaintiff in the Gibbons medical malpractice suit having waited almost 1 year to attempt service, Judge Chamblin emphasized: “The law allows the Plaintiff the one-year window for service on defendant.” Id.

Judge Chamblin in Palum also emphasized, “The purpose of both [8.01-275.1 and the Virginia Supreme Court Rule] is to promote the timely prosecution of lawsuits and to avoid abuse of the judicial system.Id. at 38. Plaintiff in the Gibbons medical malpractice case attempted “timely prosecution” and did not “abuse…the judicial system”. Conversely, the judicial system is subject to potential “abuse” when defendants disavow their office agent’s authority after they have accepted service right after 1 year has passed.

Flagler v. Liberty Mutual Ins. Co., 73 Va. Cir. 61 (Fairfax Mar. 9, 2007) and Goldstein v. Bourgad, 68 Va. Cir. 132 (Fairfax Jun. 7, 2005) also support Plaintiff in the Gibbons medical malpractice action. In Goldstein, the court found “due diligence” even though service within 1 year was defective because the Notice of Motion for Judgment was missing; where plaintiff re-served correctly within an extension of time after 1 year. In Flagler, plaintiff was granted an additional 2 months to serve, after failing to serve within the first 14 months; and subsequently was dismissed for still failing to serve at all.