Byington v. Sentara Life Care Corp.
| Decision Date | 30 December 2016 |
| Docket Number | Civil Case No.: CL16-3944 |
| Court | Circuit Court of Virginia |
| Parties | WARD BYINGTON, GUARDIAN AND CONSERVATOR, OUIDA BYINGTON, Plaintiff, v. SENTARA LIFE CARE CORPORATION d/b/a SENTARA NURSING CENTER—NORFOLK, et al., Defendants. |
Ward Byington ("Mr. Byington"), in his capacity as guardian and conservator of Ouida Byington ("Ms. Byington"), and Defendants Sentara Life Care Corporation d/b/a Sentara Nursing Center—Norfolk ("Sentara"), Lanesha Saunders, LPN, Theron Nichol, LPN, Levanda Gilliam, CNA, and Comfort Odurukwe, CNA (collectively, "Defendants") appeared by counsel before this Court on December 20, 2016, for a hearing (the "Hearing") on Defendants' Plea of Estoppel and Motion for Costs, Defendants' Objections to Designated Portions of the Deposition of Cathy Cao, M.D., and an evidentiary hearing regarding Ms. Byington's incapacity as ordered by the Court in its August 1, 2016, Order. At the conclusion of the Hearing, the Court took the matters under advisement.
Now the Court—after reviewing the related briefs, considering the argument of counsel, and consulting applicable authorities—OVERRULES Defendants' Plea of Estoppel, GRANTS Defendants' Motion for Costs, OVERRULES Defendants' Objections to Designated Portions of the Deposition of Cathy Cao, M.D., and finds that Ouida Byington was incapacitated on or before July 2011 and never regained capacity, such that the Complaint in this matter is deemed to be timely filed. The bases for the Court's rulings are as follows.
A long and tortured procedural path has led the parties to their present positions.
Ouida Byington filed a medical malpractice action on September 19, 2014, stemming from an alleged personal injury that occurred at Sentara Nursing Center—Norfolk on April 18, 2013 (the "Incident"). The Complaint was filed in her personal capacity. Defendants filed a Motion to Dismiss on March 17, 2015, asserting that based on Plaintiff's counsel advising "that Ms. Byington's mental state has deteriorated to the point that she cannot respond to discovery," "it is clear that the Plaintiff lacks capacity to prosecute this lawsuit on her own behalf." (Mot. to Dismiss 1, Byington v. Sentara Life Care Corp., et al., No. CL14-6626 (Norfolk Cir. Ct. Mar. 17, 2015).) On April 2, 2015—more than six months after filing suit—Plaintiff's counsel filed a Motion to Amend Complaint, seeking to "remove Plaintiff Ouida Byington, from the above-styled action and substitute in lieu thereof 'Ward Byington on behalf of his mother and next friend Ouida Byington' as the proper Plaintiff."1 (Mot. to Amend 1, Byington v. Sentara Life Care Corp., et al., No. CL14-6626 (Norfolk Cir. Ct. July 28, 2015).) The Court denied Plaintiff's Motion to Amend Complaint.
On July 13, 2015—four and a half months before the scheduled trial—Plaintiff's counsel filed a Motion to Appoint Michael Weisberg, Esq. as Guardian ad Litem pursuant to Section 8.01-9B of the Code of Virginia, i.e., to substitute himself as plaintiff. Defendants objected and again moved to dismiss the lawsuit, contending that it was inappropriate for counsel to name himself as plaintiff and that such action was inconsistent with the intended purpose of Section 8.01-9B. On July 28, 2015, the Court held a hearing at which it, inter alia, ordered that "Plaintiff's Counsel shall file a Petition for Guardianship/ Conservatorship in accordance with Va. Code Ann. § 64.2-2001, et seq." and denied Defendants' Motion to Dismiss in order to "to allow Plaintiff time to file the appropriate Petition for Guardianship/Conservatorship." (Order, Byington v. Sentara Life Care Corp., et al., No. CL14-6626 (Norfolk Cir. Ct. Aug. 20, 2015).)
On August 19, 2015, Defendants filed another Motion to Dismiss, in which they asserted that Plaintiff's counsel had represented that Ms. Byington lacked capacity and was not aware of the Complaint; that Plaintiff's counsel had failed to petition for guardianship/conservatorship; and that, during the same time period, Mr. Byington testified that his mother was able to answer questions in a deposition. At the related hearing, Defendants argued that the state of Ms. Byington's mental health was unclear and that they were prejudiced by Plaintiff's failure to timely designate an appropriate person to prosecute the suit and/or because they should not haveto defend an action filed on behalf of a competent Plaintiff without that Plaintiff's knowledge or consent.
After a Petition for Guardianship/Conservatorship had not been filed in the five weeks following the July 28, 2015, hearing and in light of the alleged confusion regarding Ms. Byington's capacity, Defendants claim they requested to conduct Ms. Byington's deposition in September 2015. When no response was received from Plaintiff, Defendants filed another Motion to Dismiss—this time for failure to produce a material witness—on September 18, 2015. After Plaintiff failed to timely designate experts for the scheduled December 7, 2015, trial, Defendants also filed a Motion in Limine and Motion for Summary Judgment.
Plaintiff's counsel filed his first Petition for Guardianship/Conservatorship on October 1, 2015, but never pursued it. (Petition for the Appointment of Guardian and Conservator for Ouida Byington, Byington v. Byington, No. CL15-10060 (Norfolk Cir. Ct. Oct. 1, 2015).) A hearing on the Motion to Dismiss, Motion in Limine, and Motion for Summary Judgment was held on October 6, 2015, where Plaintiff elected not to argue the matters. Plaintiff instead took a nonsuit, and the Court entered a related Order that day. (Nonsuit Order, Byington v. Sentara Life Care Corp., et al., No. CL14-6626 (Norfolk Cir. Ct. Oct. 6, 2016).)
On December 17, 2015, Plaintiff's counsel filed a second Petition for Appointment of Guardian and Conservator of Ouida Byington. (Petition, Re: Appointment of Guardian and Conservator for Ouida Byington, CL15-13003 (Norfolk Cir. Ct. Dec. 17, 2015).) On February 4, 2016, Plaintiff's counsel refiled the nonsuited action in the name of "Ward Byington, on behalf of his mother and next friend Ouida Byington"—as he had requested a year earlier in the Motion to Amend Complaint, which the Court denied. Defendants again moved to dismiss the Complaint. On April 12, 2016, the Court entered an Order stating that Mr. Byington "does not have standing or authority to file suit on behalf of his mother as 'next friend,' and no Order had been entered appointing him as conservator for purposes of bringing forth litigation on [Ms.] Byington's behalf" and dismissing the suit without prejudice. (Dismissal Order, Byington v. Sentara Life Care Corp., et al., No. CL16-1270 (Norfolk Cir. Ct. Apr. 12, 2016).)
On April 5, 2016—eight months after the Court's Order instructing that a Guardian/Conservator be appointed—Ms. Byington was adjudicated incapacitated and Mr. Byington qualified as guardian and conservator of the estate of Ouida Byington for purposes of the instant litigation. (Decree, Re: Appointment of Guardian and Conservator for Ouida Byington, No.CL15-13003 (Norfolk Cir. Ct. Apr. 5, 2016).) On April 8, 2016—two days after the expiration of the six-month period in which to re-file the nonsuited action—Mr. Byington, as guardian and conservator of Ouida Byington, filed the Complaint now before the Court.
Shortly thereafter, Defendants filed a Special Plea in Bar, pursuant to Section 8.01-229(E) of the Code of Virginia, asserting that the statute of limitations had run. Plaintiff responded by filing a Grounds of Defense, arguing that Ms. Byington was "incapacitated considerably before filing her complaint in the instant matter on April 8, 2016."2 (Grounds of Defense 1.) A hearing on the Special Plea in Bar and Grounds of Defense was held on June 22, 2016. There, Plaintiff's counsel alleged for the first time that Ms. Byington lacked capacity from the inception of the original Complaint—September 19, 2014—and that, under Section 8.01-229(A)(2)(b), the statute of limitations therefore was tolled until one year after qualification of a guardian or conservator, rendering the April 8, 2016, Complaint timely filed. On August 1, 2016, the Court overruled Defendants' Special Plea in Bar but allowed counsel additional time to conduct discovery on the limited issue of Ms. Byington's incapacity in preparation for an evidentiary hearing on the issue.3 (Order, Aug. 1, 2016).)
Subsequent to the June 2016 hearing, Defendants filed a Plea of Estoppel and Motion for Costs based on Plaintiff allegedly taking inconsistent positions during the litigation associated with the Incident and Plaintiff's related alleged misrepresentations. In support of the pending evidentiary hearing regarding Ms. Byington's incapacity, on November 30, 2016, Plaintiff deposed Cathy Cao, M.D.—Ms. Byington's treating neurologist between September 2010 and January 2012—and Defendants subsequently filed objections to designated portions of Dr. Cao's deposition. The Court held a hearing on Defendants' Plea of Estoppel and Motion for Costs and Defendants' Objections to Designated Portions of the Deposition of Cathy Cao, M.D., and also presided over an evidentiary hearing regarding Ms. Byington's incapacity, on December 20, 2016 (the "Hearing").
At the Hearing, Plaintiff's sole evidence to support that the inception of Ms. Byington's incapacity was on or before the Incident, and that she has not subsequently regained capacity,was the transcript of Dr. Cao's deposition and the accompanying deposition exhibit (Dr. Cao's medical record for Ms. Byington). Defendants did not present any evidence on the incapacity issue, asserting that Plaintiff failed to satisfy her burden of proof.
Defendants' Plea of Estoppel and Motion for Costs asserts that Plaintiff has taken inconsistent positions and made associated misrepresentations during the pending litigation and that Plaintiff therefore is estopped—under principles of judicial estoppel or,...
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