Virginia: Wrongful Death – a Lawyer’s Amendment

Virginia: Wrongful Death – a Lawyer’s Amendment

On September 28, 2012, Mr. Waterman argued Plaintiff’s Motion for Leave to Amend in the wrongful death suit of Arshan v. Stephen E. Plotnick, M.D., et al., No. CL11-1316 in the Circuit Court for the City of Williamsburg and James City County, Virginia. The Judge granted the Motion over the objection of Defendants, Dr. Plotnick and his PLLC, which formerly practiced medicine in Virginia Beach, Virginia.

This medical malpractice matter is controlled by Rule 1:8 of the Rules of the Virginia Supreme Court of Virginia. “Leave to amend shall be liberally granted in furtherance of the ends of justice.” Va. Sup. Ct. R. 1:8 (emphasis added).

Over 50 years ago the Virginia Supreme Court embraced its Rule’s liberality toward amendment as the modern trend, which governs the Arshan wrongful death case. “The tendency of modern decisions is reflected in our Rule”. Goode v. Courtney, 200 Va. 804, 807 (1959).

Accordingly, where as in the Arshan medical malpractice action there really is no undue prejudice or previous amendment, the amendment should be granted. E.g., Mortarino v. Consultant Eng’g Sevs., Inc. 251 Va. 289 (1996); Kole v. City of Chesapeake, 247 Va. 51 (1994). Indeed, in Gray v. Rhoads, 55 Va. Cir. 362, 377-378 (Charlottesville Jul. 2, 2001), upon dismissing claims for negligent supervision and training, sua sponte the judge granted leave to amend for claims of negligent hiring and retention.

Virginia Circuit Courts routinely grant leave to amend to further justice, this Arshan wrongful death lawsuit being no exception. E.g., Gagnon v. Burns, No. CL08-572 (Gloucester Jun. 16, 2009); Seibert v. Riverside Hosp., Inc., No. 40366-DP (Newport News Nov. 13, 2007)(medical malpractice); Pedigo v. Flattop Mountain Landowner’s Assn., Inc, 73 Va. Cir. 26, 33 (Greene Dec. 7, 2006); PMG Invs., LLC v. Gravely-Robinson, 71 Va. Cir. 140, 141 (Roanoke Jun. 14, 2006). In PMG, the circuit court granted an amendment on an appeal de novo from General District Court. In Pedigo, the circuit court granted leave to amend after sustaining a demurrer.

“A trial court that fails to allow amendments is likely to have abused its discretion. See, e.g., Peterson v. Castano, 260 Va. 299, 534 S.E. 2d 736 (2000); Mortarino v. Consultant Eng’g Servs., Inc., 251 Va. 289, 467 S.E. 2d 778 (1996).” Drewery v. City of Roanoke, 63 Va. Cir. 609, 619 (Roanoke Sep. 7, 2001). Kole v. City of Chesapeake, 247 Va. 51 (1994); XL Specialty Ins. Co. v. Commonwealth, 47 Va. App. 424 (2006); and Dirtselis v. Dirtselis, 2005 Va. App. LEXIS 451 (Nov. 8, 2005). The Supreme Court of Virginia and the Court of Appeals of Virginia regularly have reversed and remanded for denial of leave to amend. E.g., Peterson, 260 Va. at 303-304; Mortarino, 251 Va. at 295-296; Kole, 247 Va. at 57; XL, 47 Va. App. at 437-438; and Dirtselis, 205 Va. App. LEXIS 451 at *11-14. Unlike the judge in the Arshan medical malpractice hearing, the circuit court in Mortarino properly had sustained a demurrer, but “abused its discretion in failing to allow the filing of the amended motion for judgment”. 251 Va. at 296.

In Booher v. Botetourt County Board of Supervisors, 65 Va. Cir. 53, 59-61 (Botetourt Apr. 29, 2004), Defendants variously opposed the motion for leave to amend on grounds of it being unseasonable, the movant not showing it would not be futile, and the movant not having tendered the proposed amendment. But the court found no untimeliness despite months having past since initial filing, where there was no trial date or discovery. Id. at 60. Next the court in Booher rejected the futility assertion: “There is no technical burden upon a party seeking leave to amend to demonstrate that the amendment will not be futile. Nothing within the Rules of Virginia’s jurisprudence calls for such a showing.” Id. Then the Court held that although producing the proposed amendment at hearing “may be preferable and is often done, it is not required.” Id. Finally, Booher observed that the burden instead was on defendant opposing the Motion, who could not show undue prejudice. Id. at 61. When asked in the Arshan wrongful death argument, Defendants could not articular any undue prejudice.

Although Plaintiff’s amendment in the Arshan medical malpractice proceeding certainly reflects very badly on Plotnick Defendants, as did the 2007 record alteration/fraud allegations against Riverside Hospital in Seibert, supra, they are not unduly prejudicial to them. Like Riverside Hospital, Plotnick Defendants have nobody to blame for their underlying misconduct or their discovery misconduct besides themselves.

The Arshan wrongful death lawsuit granting amendment is “in furtherance of the ends of justice,” as mandated. Denial of amendment denies justice.