Hewitt v. Virginia Health Services Corp., 890534
| Decision Date | 20 April 1990 |
| Docket Number | No. 890534,890534 |
| Citation | 391 S.E.2d 59,239 Va. 643 |
| Parties | Martha HEWITT, administratrix, etc. v. VIRGINIA HEALTH SERVICES CORP., t/a, etc., et al. Record |
| Court | Virginia Supreme Court |
James W. Parker (Parker & Hunter, on brief), for appellant.
C. Flipps Hicks (Martin, Hicks & Ingles, Gloucester, on brief), for appellees.
Present: All the Justices.
The sole issue that we consider in this appeal is whether the trial court erred when it dismissed the appellant's wrongful death action against the appellees (health care providers) because the notice of medical malpractice was not sent by registered or certified mail.
Appellant's decedent, Eliza Smith, was a patient at Walter Reed Convalescent Center (the Center) in Gloucester County, Virginia. 1 She had been diagnosed as suicidal. Smith attempted to drown herself at the Center on February 9, 1986. Her attempted suicide was recorded in the Center's nursing notes. On June 11, 1986, an employee of the Center discovered her body. The report of an autopsy performed on Smith's body attributed the death to drowning.
Martha Hewitt qualified as the administratrix of Smith's estate. On July 22, 1986, Hewitt's attorney mailed a letter to Hal Borque, the Center's director. Neither the Center nor Borque objected to this purported notice. 2
This wrongful death action was filed against Borque and the Center in 1987. They filed grounds of defense and propounded interrogatories to Hewitt. The litigants engaged in extensive discovery. On September 16, 1988, approximately one year and four months after this action had been filed, Borque and the Center filed a motion to dismiss. The sole basis of their motion was that the July 22, 1986 notice was not sent by registered or certified mail. They admit, however, that they received the notice. The trial court heard argument of counsel on January 12, 1989 and dismissed the lawsuit because Hewittfailed to comply with Code § 8.01-581.2 which requires written notification mailed by certified or registered mail before the filing of a lawsuit. The trial court concluded that Code § 8.01-581.2 is jurisdictional, cannot be waived, and can be raised at any time.
We disagree with the trial court. The failure to serve the notice of claim properly does not affect the trial court's subject matter jurisdiction. The method of service of a claim specified in Code § 8.01-581.2 is a procedural requirement which is deemed waived if an objection is not timely raised.
[T]he Code of Virginia gives circuit courts jurisdiction to resolve cases and controversies involving torts. This is unquestionably a statutory grant of subject matter jurisdiction. Medical malpractice claims are tort claims. The Virginia General Assembly has enacted certain procedures for the prosecution of claims of this type. These procedures include the notice of claim, a waiting period for filing suit, the right to a...
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Williamson v. City of Virginia Beach, Va., Civ. A. No. 90-1861-N.
...allow recovery based on suicide if negligence, foreseeability and proximate cause are established; iv) that Hewitt v. Virginia Health Services Corporation, 391 S.E.2d 59 (Va.1990) and White v. United States, 359 F.2d 989 (4th Cir.1966), both involving suicides in Virginia, were decided with......
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Harris v. DiMattina
...preparation, and to encourage settlement prior to trial. Id. at 172-73, 387 S.E.2d at 757. See also Hewitt v. Virginia Health Servs. Corp., 239 Va. 643, 645, 391 S.E.2d 59, 60 (1990). In accord with this explanation, we hold that former Code §§ 8.01-581.2 and -581.9, as well as the repeal p......
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Ellis v. Kilgore
...(1990) (failure to follow procedures does not divest court of subject matter jurisdiction). See also, Hewitt v. Virginia Health Services Corp., 239 Va. 643, 391 S.E.2d 59 (1990) ("The failure to serve the notice of claim properly does not affect the trial court's subject matter jurisdiction......
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Dolwick v. Leech, Civ. A. No. 2:92CV140
...has held that the procedural requirements of the Act are deemed waived if no timely objection is made. Hewitt v. Virginia Health Servs. Corp., 239 Va. 643, 391 S.E.2d 59, 60 (1990). Defendants were or should have been aware of the existence of the June 18 notice of claim from the October 25......