Dolwick v. Leech, Civ. A. No. 2:92CV140

• Decision Date: 30 June 1992
• Docket Number: Civ. A. No. 2:92CV140,2:92CV722.
• Citation: 800 F. Supp. 321
• Parties: Anna A. DOLWICK, personal representative of the Estate of John Raymond Dolwick, Plaintiff, v. Steven H. LEECH, M.D., Ph.D., and Medical Center Hospital Pathology Associates, Ltd., and Sentara Hospitals — Norfolk t/a Sentara Norfolk General Hospital, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

800 F. Supp. 321

Anna A. DOLWICK, personal representative of the Estate of John Raymond Dolwick, Plaintiff, v. Steven H. LEECH, M.D., Ph.D., and Medical Center Hospital Pathology Associates, Ltd., and Sentara Hospitals — Norfolk t/a Sentara Norfolk General Hospital, Defendants.

Civ. A. No. 2:92CV140, 2:92CV722.

United States District Court, E.D. Virginia, Norfolk Division.

June 30, 1992.

Thomas B. Shuttleworth II, Virginia Beach, Va., for plaintiff.

James H. Shoemaker, Jr., Norfolk, Va., for defendant Sentara Hospitals-Norfolk t/a Sentara Norfolk General Hosp.

Michael E. Ornoff, Norfolk, Va., for defendants Steven H. Leech, M.D., Ph.D. and Medical Center Hosp. Pathology Associates, Ltd.

ORDER

WALTER E. HOFFMAN, Senior District Judge.

Upon de novo review of the file, the Court, having examined the objections filed by defendants Steven H. Leech, M.D., and Medical Center Hospital Pathology Associates, Ltd., to the Magistrate Judge's Report and Recommendation filed on May 27, 1992, and no oral argument having been requested, the Court adopts and approves in full the findings and recommendations set forth in the Report and Recommendation of the United States Magistrate Judge, William T. Prince. Defendants' Motions to Dismiss are, hereby, DENIED, and Defendants' Motions to Strike those portions of the allegations of ¶¶ 8 and 10 of the First Amended Complaint alleging deprivation of a substantial possibility of survival are GRANTED.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

PRINCE, United States Magistrate Judge.

Order of Designation

In Civil Action No. 2:91cv722, by Order dated March 16, 1992, Senior United States District Judge J. Calvitt Clarke, Jr. designated the undersigned Magistrate Judge to submit to a Judge of this Court proposed findings of fact and recommendations for the disposition of the motion to dismiss of defendant Sentara Hospitals-Norfolk t/a Sentara Norfolk General Hospital ("Sentara"). A hearing was held on March 19, 1992 at which the plaintiff was represented by Thomas B. Shuttleworth II, Esquire, and defendant Sentara was represented by James H. Shoemaker, Jr., Esquire.

On April 6, 1992, an order was entered consolidating Civil Actions Nos. 2:92cv140 and 2:91cv722, the consolidated action to thereafter proceed under docket number 2:92cv140. On April 27, 1992, Judge Clarke entered an order designating the undersigned Magistrate Judge to submit to a Judge of this Court proposed findings of fact and recommendations for the disposition of a motion to dismiss filed by defendant Sentara and a motion to dismiss and motion to strike filed by defendants Steven H. Leech, M.D., Ph.D. ("Leech") and Medical Center Hospital Pathology Associates, Ltd. ("Associates"). A hearing was held on April 28, 1992 at which the plaintiff was represented by Mr. Shuttleworth, defendant Sentara was represented by Mr. Shoemaker, and defendants Leech and Associates were represented by Michael E. Ornoff, Esquire.

BACKGROUND

This is a medical malpractice/wrongful death action brought under the diversity jurisdiction of this Court pursuant to 28 U.S.C. § 1332. The plaintiff, Anna A. Dolwick, as personal representative for the estate of John L. Dolwick, alleges negligence in the handling of tissue samples taken from the decedent on October 27, 1989 for the purpose of finding a donor for a bone marrow transplant. Mrs. Dolwick alleges that the negligent handling of the tissue samples both on and after that date delayed the identification of prospective donors, thus precipitating John Dolwick's death from chronic myelogenous leukemia.

On June 18, 1991, Mrs. Dolwick submitted a notice of claim to defendant Sentara, as required by the Virginia Medical Malpractice Act, naming only Sentara as a prospective medical malpractice defendant. (Defs. Leech & Assocs.' Mot. Dismiss, Ex. A). Under Virginia law, Sentara then had ninety days from the date of that notice to request a review of plaintiff's claim by a nonbinding review panel composed of physicians and attorneys. Sentara made no such request. On October 25, 1991, Mrs. Dolwick submitted a second notice of claim to, inter alia, defendants Leech, Associates and Sentara. (Defs. Leech & Associates' Mot. Dismiss, Ex. B). In that notice, counsel for the plaintiff stated

This letter is being sent in addition to my prior letter sent on June 18, 1991 to the Administrator of Sentara Norfolk General Hospital for, among other reasons, and in the event that the immunology laboratory at Sentara Norfolk General Hospital is a separate, independently owned and/or operated entity separate and apart from Sentara Norfolk General Hospital and not owned by them.

(Id. at 3.) None of the defendants requested a review panel subsequent to the October 25 notice of claim letter.

The plaintiff initially filed the instant action in regard to defendant Sentara on October 28, 1991. A second, substantially similar complaint was filed on February 21, 1992, naming various defendants. The consolidation order filed on April 8, 1992 subsequently corrected the designation of the named defendants to read as captioned above.

In their motion, defendants Leech and Associates raise as grounds for dismissal the following:

(1) that the plaintiff has failed to comply with the notice of claim provisions of the Virginia Medical Malpractice Act;

(2) that the complaint does not adequately set out "a short and plain statement of the claim showing that the pleader is entitled to relief" against Leech or Associates;

(3) that the complaint improperly asserts as an element of the claim for relief an allegation of loss of a "substantial possibility of survival;" and

(4) that the complaint inadequately alleges the diversity of citizenship of the parties.

Defendant Sentara alleges only ground (3) as a basis for dismissal as to it. At oral argument, counsel for the plaintiff was granted leave to amend the complaint to cure those defects underlying grounds (2) and (4). Thus, remaining for decision are only those grounds designated supra as (1) and (3).¹

DISCUSSION

In the exercise of its diversity jurisdiction, this Court must apply the law of the Commonwealth of Virginia. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); DiAntonio v. Northampton-Accomack Memorial Hosp., 628 F.2d 287 (4th Cir.1980). As the Supreme Court of Virginia has not spoken directly to either of the remaining issues raised by the defendants, this Court must ascertain the rule the state supreme court would most likely adopt. National Union Fire Ins. Co. v. Johnson, 709 F.Supp. 676 (E.D.Va.1989).

Failure to Provide Adequate Notice of Claim

Defendants Leech and Associates first argue that defects in the giving of notice of a medical malpractice claim as required by Virginia law² mandate the dismissal of this claim. Specifically, the defendants take issue with the plaintiff's issuance of two notice of claim letters in this matter, one dated June 18, 1991 and submitted to Sentara, and one dated October 25, 1991 and submitted to all defendants. According to Leech and Associates, Dolwick's actions deviate from the statutory requirements of the Virginia Medical Malpractice Act, Va. Code Ann. § 8.01-581.1 et seq.; such deviation, the argument continues, necessarily results in either a total prohibition against suit or the failure of the tolling provisions of the Act to take effect.

The Virginia Medical Malpractice Act seeks to alleviate the high costs of malpractice insurance for health care providers by setting up a system designed to reduce the number of baseless malpractice claims and to facilitate the mediation and settlement of meritorious claims through an optional pre-litigation review of the claim by a panel composed of impartial health care professionals and attorneys. DiAntonio, 628 F.2d at 289-90. Should either party so request, a hearing will be held before such a panel, which will then render an opinion as to whether the appropriate standard of care was breached by the health care provider and, if so, whether the breach was the proximate cause of the plaintiff's injuries. See id.; Va.Code Ann. § 8.01-581.6. The opinion rendered by the panel is admissible as evidence in any subsequent court action, but is not conclusive evidence. Va. Code Ann. § 8.01-581.8. An integral part of this review system requires the provision of notice of prospective medical malpractice claims to the implicated health care providers prior to filing suit in order to allow the prospective defendants to elect to submit the dispute to a panel. See DiAntonio, 628 F.2d at 289-90.

Thus, the General Assembly has decided that "no action may be brought for malpractice against a health care provider unless the claimant notifies the health care provider in writing by registered or certified mail prior to commencing the action." Va.Code Ann. § 8.01-581.2(A). Further, a plaintiff seeking to assert a claim against more than one health care provider must name all such providers in one notice of claim and submit that notice to all of them. Va.Code Ann. § 8.01-581.2(D). In addition, the statutory scheme sets out a method whereby the required notice of claim may be amended in order to assert additional causes of action or add new parties with leave of the panel chairman or, if no panel is requested, with leave of court. Va.Code Ann. § 8.01-581.2:1.³ When neither party ultimately requests a malpractice review panel, a plaintiff's giving of notice of a claim pursuant to Va.Code Ann. § 8.01-581.2 tolls the statute of limitations on that claim for 120 days from the date the notice was delivered, or, if sent by registered or certified mail, from the date mailed. Va. Code Ann. § 8.01-581.9.

Plaintiff failed to comply with this scheme by sending out separate notices on June 18 and October 25 instead of seeking leave to amend the June 18 notice. According to Leech and Associates, this procedural failure on the plaintiff's part requires dismissal of the action...