Recent Virginia Circuit Court Decisions Affect Medical Malpractice Defendants

Published on: 1/12/2005

Three recent decisions by Virginia Circuit Courts should be of interest to Virginia healthcare providers and their insurers. These decisions deal with nonsuits, an effort to circumvent Virginia's cap on damages in malpractice cases, and communications with current and former employees of a healthcare provider.

The Fairfax Circuit Court recently ruled that where a plaintiff seeks a second or additional nonsuit, the plaintiff must notify all defendants affected, regardless of whether they have been served with process. In the case of Janvier v. Armino, the Court held that the order granting the second nonsuit was void because the plaintiff failed to give notice to the defendant of its second nonsuit request. The case was ultimately dismissed because the statute of limitations had since run on the medical malpractice claim.

Section 8.01-380 of the Code of Virginia allows the plaintiff to take one nonsuit as a matter of right. The court may allow additional nonsuits or counsel may stipulate to them. The Supreme Court of Virginia has never ruled on the issue of whether notice is required for a second or additional nonsuit. However, Fairfax is now the second Circuit Court to issue a ruling that notice is required, even where the defendants have not been served. A Spotsylvania County judge ruled in 1994 that, without notice to the defendants, a second nonsuit order was ineffectual. The Court reasoned that where a second nonsuit is issued via the exercise of discretion by a judge, the Court must have the benefit of hearing from all parties. Therefore, notice is required to all defendants, regardless of whether they have been served. This ruling is helpful to defendants, because it gives defendants an opportunity to object to serial nonsuits, and perhaps eliminate a claim, even before the defendant is served.

In the recent case of Verni v. Castro, the plaintiff brought medical malpractice and products liability claims against two defendant physicians and their group. The claims surrounded the defendants' use of "chelation therapy" to treat Mr. Verni's cardiac problems. Mr. Verni died of a massive heart attack after receiving six treatments, and his wife sought damages of $5 million. Presumably, the plaintiff included the products liability claims in an attempt to recover beyond the statutory medical malpractice cap. The Washington County Circuit Court rejected plaintiff's attempt to sidestep the statute in this way, and held that the alleged facts did not support the products liability claims. The essence of the plaintiff's claim was that the defendants improperly treated the decedent's cardiac problems, by choosing chelation therapy over other methods. The Court held that the treatment rendered was an inseparable part of the health care rendered, and the claims sounded in medical malpractice. The products liability claims were dismissed, and the medical malpractice claims were allowed to go forward.

Finally, a court has clarified what type of ex parte communications plaintiff's counsel may have with a defendant's current and former employees. In the medical malpractice case of Pruett v. Virginia Health Services, Inc., the Lancaster County Circuit Court ruled that the plaintiff's lawyer may talk to former nursing home employees, both "control group" and "non-control group," but the plaintiff's lawyer may not talk to any current nursing home employees about the allegations of negligence. The subject matter of the communication is significant, because the plaintiff's lawyer may talk to current employees about matters not related to the allegations of negligence.

A "control group" employee is one with the authority to make decisions on a corporation's behalf, or one who may be regarded as the alter ego of the corporation. Officers and directors are traditional "control group" employees, but in the healthcare setting the issue becomes more complex since nurses or other employees may expose a corporation to vicarious liability. The Court reasoned that current, non-control group employees, like nurses who provide resident care, should also be protected. Therefore, it barred ex parte communications by plaintiff's counsel with any current employees on the matters related to the alleged acts of negligence. The Court further ruled that if any current or former employee has retained independent counsel with respect to the matters at issue, the plaintiff's attorney must communicate with the employee through his or her attorney. Healthcare corporations should be aware that plaintiff attorneys may be able to speak to their current employees about "unrelated" matters. In addition, plaintiff attorneys may be able to speak to former employees about any subject, once the attorney has identified himself, his client, and inquired about independent counsel.