Last month, a Virginia appellate court issued a written opinion in a personal injury case illustrating how diligent and precise Virginia medical malpractice plaintiffs must be when filing their complaint. The case required the court to determine if the jury’s verdict in favor of the plaintiff should be upheld when the trial judge instructed the jury on medical battery despite the fact that the plaintiff’s complaint did not mention medical battery. Ultimately, the court concluded that the plaintiff should have added language to include a medical battery claim, and her failure to do so prevented the trial judge from instructing the jury on the issue.
The plaintiff was a breast cancer survivor who required follow-up surgery. The plaintiff claimed that she had originally discussed having surgery on both breasts but ultimately decided to only proceed with surgery on her right breast.
The defendant’s version of the events leading up to the surgery were different from the plaintiff’s version. The defendant claimed that the plaintiff never indicated to him that she wished to have him operate on only her right breast. Needless to say, the defendant performed surgery on both breasts, and the plaintiff suffered serious complications related to her left breast.
The plaintiff filed a medical malpractice claim against the defendant, claiming that he was “negligent” in operating on the “wrong” breast. Later, after the statute of limitations had expired, the plaintiff attempted to amend the complaint to include an additional claim of medical battery. However, since the amendment was filed after the statute of limitations had expired, the court prevented the plaintiff from amending the complaint.
The trial proceeded on the negligence claims, and at the conclusion of the evidence, the plaintiff was successful in getting the judge to instruct the jury on medical battery over a defense objection. The jury returned a verdict in favor of the plaintiff.
The defendant appealed, arguing that there was no basis for the judge to instruct the jury on medical battery because the plaintiff’s complaint did not allege medical battery. The court agreed with the defendant and reversed the jury’s award. The court explained that a case based on surgery that is conducted on the wrong part of the body may proceed as either a negligence claim or a medical battery claim. However, the claims are not the same and have different elements that must be established. Under Virginia law, a plaintiff’s initial pleading must be specific enough to put the defendant on notice. Here, the court held, the plaintiff’s initial complaint said nothing about medical battery and mentioned the word “negligence.” This would indicate to the defendant that the claim was one of negligence, rather than medical battery. Furthermore, the fact that the plaintiff later attempted to amend the claim to include a medical battery claim showed that the plaintiff was aware the two claims are not synonymous.
Have You Been a Victim of Medical Malpractice?
If you or a loved one has recently been a victim of medical malpractice, you may be entitled to monetary compensation. Virginia medical malpractice cases require specificity and precision, and a plaintiff’s failure to comply with even the most seemingly insignificant rule can prevent them from recovering compensation for their injuries. The skilled Virginia personal injury attorneys at the law office of Charles B. Roberts, P.C. are knowledgeable in all personal injury matters, including Virginia medical malpractice claims. Call 703-491-7070 to schedule a free consultation with an attorney today.
See More Blog Posts:
Summary Judgment in Virginia Personal Injury Cases, Virginia Injury Lawyers Blog, July 5, 2017.
NFL Brain Injury Update: CTE More Common than Originally Thoughts, Virginia Injury Lawyers Blog, August 8, 2017.