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Personal Injury

10/29/2009
Mark D. Dix
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Medical Malpractice Suit Dismissed On Statute Of Limitations Grounds

In Chalifoux v. Radiology Associates of Richmond, Inc., a local trial court dismissed a woman's medical malpractice suit against her radiologist. The woman alleged that the radiologist negligently misread several tests and studies, which, if properly read, would have indicated that she had a brain tumor.

The allegedly negligent radiological tests were performed between December 2002 and October 2005. An immediate and threshold problem is apparent from these facts: in Virginia, the statute of limitations for personal injury lawsuits is only two years. In short, the law requires injured persons to file suit within two years of their injury. In this case, Ms. Chalifoux did not file her lawsuit until 2009, four years after the last negligent reading.

Despite Ms. Chalifoux's procedural default, Virginia law allows her an exception to the statute of limitations, called the “continuous treatment rule.” Under the continuous treatment rule, the injury (which starts the two-year statute of limitations clock) does not accrue until an entire course of treatment has concluded. In essence, the rule allows an injured plaintiff to use the latest date she was treated if the discrete medical visits are part of a single or continuous treatment regimen.

In applying the continuous treatment rule, the Richmond City Circuit Court found that Ms. Chalifoux's visits were not part of a continuous treatment. The court held that, even if each test was compared to all the past tests, each radiological test reading was a separate and distinct wrong. As such, the normal two-year statute of limitations should apply to each erroneous test reading.

Labels: personal injury lawsuit

6/4/2009
Clint W. Verity
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Federal District Court Remands Personal Injury Action to State Court.

The United States Federal District Court for the Eastern District of Virginia-Richmond Division remanded a personal injury action based on negligence back to state court. Despite plaintiff's medical expenses of $63,964.92, he/she had only sued for $74,900. The court reasoned that the plainitff's ability to amend his/her Complaint was not enough to keep the action in federal court. Under 28 U.S.C. 1332, a plaintiff must allege an amount in controversey that exceeds $75,000 in order to have his/her state law claim heard in federal court.

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4/8/2009
M. Scott Bucci
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Lawsuit Against Deceased Defendant Cannot Be Amended

The Salem Circuit Court has found that a personal injury lawsuit was untimely filed because the statute of limitations had run, and the previously nonsuited case was a legal nullity. The plaintiff filed his lawsuit prior to the expiration of the statute of limitations against the defendant, who was deceased. The plaintiff then nonsuited the case, and refiled it after the expiration of the statute of limitations. Thereafter, the plaintiff moved to amend the lawsuit to substitute the decedent’s personal representative in place of the decedent defendant.

Citing to the Virginia Supreme Court case of Johnston Memorial v. Bazemore, the Circuit Court judge held that the amendment could not be allowed. The initial personal injury lawsuit against the decedent defendant constituted a “legal nullity.” Although the Virginia Code permits a lawsuit to be amended to name the personal representative, this provision does not apply if the initial case was nonsuited and the statute of limitations has expired.

Labels: personal injury lawsuit statute of limitations

3/26/2009
M. Scott Bucci
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Circuit Court Judge Orders Reduction Of Jury Verdict In Mold Case

A Loudon County judge recently reduced a jury award in a mold exposure case in which a family claimed to have sustained personal injuries due to mold in their home. The jury awarded 4.75 million dollars, and the trial judge reduced the award to 1.45 million dollars. The judge found in part that the verdict was excessive, leading the judge to believe that the jury had misunderstood the law. The judge further noted that although one of the plaintiff's had suffered significant injuries, the injuries were not permanent in nature.

The judge's decision appears to be at odds with Supreme Court precedent, which requires that a verdict "shock the conscience" to be reduced. In Norfolk Beveridge v. Cho, a husband and wife were assaulted by a truck driver and incurred $1,300 and $8,500 in economic damages respectively. The jury returned verdicts of $160,000 and $310,000. In a very brief analysis, the Supreme Court simply noted that "the amount of the jury verdicts are not shocking to this court," and upheld the jury verdicts.

Perhaps most interesting, the primary argument the defendant asserted in Norfolk Beverage, was that there was no evidence of a permanent injury. The Supreme Court found this argument unconvincing, yet this was the main reason that the Loudon County court cited when reducing the verdict.

Labels: mold verdict