Virginia: Medical Malpractice – a Lawyer’s Pleading
Marshall v. Moniz is a medical malpractice lawsuit pending in Circuit Court for York County, Virginia. Defendants have filed a Demurrer to strike Plaintiff’s “catch-all” allegation of negligence: “Such other tortious acts and omissions as may be investigated, discovered and proved”.
Yet, it is hornbook law that Virginia is a “notice” pleading state. “Every pleading shall state facts on which the party relied in numbered paragraphs, and it shall be sufficient if it clearly informs the opposite party of the true nature of the claim or defense.” Va. Sup. Ct. Rule 1:4(d)(emphasis added).
Conversely, Virginia pleading does not require plaintiffs to itemize details of negligence. “An allegation of negligence. . . is sufficient without specifying the particulars of the negligence.” Va. Sup. Ct. Rule 3:18(b)(emphasis added).
A Demurrer is used to make “the contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted.” Va. Code Ann. §8.01-273(A). “[I]t is unnecessary for the pleader to descend into statements giving the details of the proof in order to withstand demurrer” if the complaint informs the defendant of the nature and character of the claim. Catercorp, Inc. v. Cathering Concepts, Inc., 246 Va. 22, 24 (1993).
Thus, in Ragsdale v. Jones, 202 Va. 278, 284 (1960), the Virginia Supreme Court upheld the admission of intoxication evidence, even through negligence in general and not intoxication in particular was pleaded. Likewise, in Moore v. Jefferson Hosp., Inc., 208 Va. 438, 439 (1967)(reversing a supposed failure to state), the Virginia Supreme Court found sufficient plaintiff’s pleading of negligence that defendant “proximately caused injury to the plaintiff, both mental and physical”. Likewise, Moore v. Payless Supermarket, Inc., 18 Va. Cir. 197, 200 ( Wise Sep. 15, 1989) found the “general allegation of negligence is sufficient”. Similarly, Cunningham v. Roanoke Reg. Airport Comm’n, 70 Va. Cir. 273, 276 ( Roanoke Mar. 8, 2006) held “pleadings are not required to assert anything more than a general allegation of negligence”.
In medical malpractice case of Marshall, Plaintiff pleads sufficient facts, see, Complaint at Paragraphs 4-12; and goes beyond the pale by enumerating some particulars of negligence. See, Complaint at Paragraphs 3 and 13-15. But Plaintiff cannot be pilloried – black-lined and blue-penciled – for giving Defendants a heads-up that there may be other particulars of negligence: his facts are governed by Rule 1:4, but his negligence allegations are governed only by Rule 3:18 (which Defendants ignore) and there is no Virginia Supreme Court authority for editing particular negligence allegations by Demurrers.
Defense counsel initially won over other Circuit Courts juxtaposing fact versus negligence pleading requirements. But misguided Circuit Court holdings do not trump Rule 3:18; plus the legal tide is turning, as recent decisions correctly overrule Demurrers on the point. E.g., Taylor v. Dorn, No. CL09-113, Order (Mecklenberg Jan. 22, 2010); Belay v. Dixon, No. 08002445, Order (Alexandria Jan. 2, 2009); Indeed, some recent Orders obtained by Williamsburg/Newport News attorney Avery T. “Sandy” Waterman, Jr., Esq., predicate granting amendment of Complaints on the identical “catch-all” allegations of negligence. E.g., Morel v. Mary Immaculate Nursing Ctr., Inc., No. 0703005P-03, Order (Newport News Sep. 2, 2008); Licare v. Riverside Health Sys., No. 0702452T-01, Order (Newport News. Feb. 1, 2008).
What are Defendants really trying to achieve in the Marshall medical malpractice suit? Their inequitable impractical gambit is to limit Plaintiff only to the particulars of negligence enumerated gratituitously long before expert disclosures and without the benefit of any discovery – and to cry foul, if Plaintiff subsequently identifies any other particulars of negligence – which should not be countenanced by York County Circuit Court.
Rules and Pre-Trial Orders governing discovery, expert disclosures, etc. are the appropriate protections already afforded Defendants. York County Circuit Court should not eviscerate Plaintiff’s pleading and discovery by rejection of modern “notice” and retreat to archaic formalities.
