Plaintiff’s Lack of Diligence in Pursuing Claim Results in Dismissal with Prejudice

When hearing Virginia medical malpractice cases, courts enforce a strict set of procedural rules to ensure that cases proceed through the system in an orderly and efficient manner. While perhaps most cases are resolved without significant litigation over one party’s compliance with a procedural rule, occasionally the question of whether a party complied with a rule is the focus of significant litigation.

StopwatchVirginia procedural rules are very important because a party’s failure to follow the rules may result in serious sanctions, including the dismissal of a case or a judgment entered in favor of the opposing party. A recent appellate decision in a medical malpractice case illustrates how one plaintiff’s failure to diligently pursue her case resulted in her case’s dismissal.

The Facts of the Case

The plaintiff claimed that the defendant hospital was responsible for an injury she received while being treated at the hospital in 2003. In 2005, the plaintiff filed her first medical malpractice case against the hospital, but, since she failed to attached a required expert affidavit, the plaintiff voluntarily withdrew her case in 2007 with the intention of obtaining the affidavit and refiling the case.

On the following day, the plaintiff filed her second case against the hospital. However, for undisclosed reasons, the plaintiff also withdrew this case a year later and filed her third case against the same hospital that same day. After the plaintiff’s third case was filed, the defendant sought dismissal, arguing that the plaintiff had waited too long to file the case and that the statute of limitations now barred the plaintiff’s claims.

The parties litigated the timeliness of the case for several years, and ultimately in 2010, the court determined that the plaintiff’s case was timely and could proceed toward trial. However, in the five years after that decision, the plaintiff did little to pursue her claim. Specifically, the plaintiff filed just two notices of deposition and deposed only one of the witnesses.

Eventually, in 2015, the hospital sought dismissal of the case based on its inactivity. The plaintiff explained that one witness had moved and that the hospital was not being forthcoming regarding information necessary to her case. The plaintiff also claimed that dismissal at this point would effectively prevent her from ever seeking compensation for her injuries because the statute of limitations had expired. The court, however, was not persuaded by the plaintiff’s explanation of the delay and agreed to dismiss the plaintiff’s case.

Have You Been Injured Due to Virginia Medical Malpractice?

If you or a loved one has recently been a victim of negligent medical care, you may be entitled to monetary compensation through a Virginia medical malpractice lawsuit. The dedicated Virginia personal injury attorneys at the law offices of Charles B. Roberts, P.C. have extensive experience handling a wide range of complex Virginia personal injury and medical malpractice cases, including those involving nuanced procedural arguments. Call 703-491-7070 to schedule a free consultation with an attorney to discuss your case today.

See More Blog Posts:

Court Upholds Slip-and-Fall Plaintiff’s Verdict over Defendant’s Sufficiency Challenge, Virginia Injury Lawyers Blog, September 6, 2017.

NFL Brain Injury Update: CTE More Common than Originally Thoughts, Virginia Injury Lawyers Blog, August 8, 2017.