From Charlottesville, Virginia

Covering the state of Virginia, Wilson & Hajek, a personal injury law firm, is centrally located in Charlottesville, Virginia. Francis Hajek is an experienced Virginia personal injury attorney and lawyer who provides aggressive representation and personal service to his clients who have suffered injuries. Since 2007, he has been listed in Best Lawyers in America.

Tuesday, March 16, 2010

Medical Malpractice Statute of Limitations Decision

In a well reasoned but fairly complicated decision, Judge Ellis, from the Eastern District of Virginia federal court, has held that after a plaintiff takes a non-suit and then refiles her medical malpractice claim, the assertion of new theories of recovery in the refiled medical malpractice action are not barred by the statute of limitations as long as they arise from the same occurrence as the original claim. Have I lost you yet? Well, let's start with the concept of the non-suit. Virginia law permits a plaintiff to dismiss his or her case at any time before a final decision in the case and then refile the case within six months. And, here is the cool part, even if the statute of limitations has expired or will expire in the time before the case is refiled, it does not apply to the refiled action. There is a major exception to this rule, cases under the Federal Employer's Liability Act or FELA do not get the benefit of this statute. So if you are an injured railroad worker, your case must be filed within the appropriate statute of limitations period and you can not dismiss it if the period has expired without giving up your claim forever. Now let's go back to the medical malpractice case. In that case, the plaintiff dismissed her case and then refiled several months later. When the case was refiled, the statute of limitations period had expired, but the non-suit statute preserved her claim. In the refiled action, the plaintiff asserted two new theories of recovery that had not been raised in the earlier filing. The defendant asked the court to dismiss the new theories of recovery claiming that they were barred by the statute of limitations. The court disagreed and held that since the theories of recovery all arose out of the same operative body of facts, in other words, the same transaction or occurrence, the claims could be asserted. The underlying reasoning is that the cause of action, which was dismissed using the non-suit statute, includes all theories of recovery that could be asserted based on the facts. The decision seems to be a fair limitation on the use of the non-suit statute and it establishes the transaction or occurrence test as the standard for judging refiled actions. But, at a length of twelve pages, it is not the type of light reading that you want to take to the beach. Instead, you will have to put on your thinking cap and use your brain.

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