Bell v. Ayers & Stolte, P.C.

43 Va. Cir. 584, 1997 Va. Cir. LEXIS 445

• Court: Richmond County Circuit Court
• Decided: November 20, 1997
• Docket: Case No. LB-2628-3
• Status: Published

Opinion

By Judge Melvin R. Hughes, Jr.

This is a legal malpractice case. Pending for decision now is defendants’ Plea in Bar. The Plea is based on fee question of fee statute of limitations applicable in an underlying case, a medical malpractice proceeding, in which fee defendants, a law firm and a lawyer in fee firm, represented plaintiff. In fee Plea, defendants state feat they cannot be held liable for legal malpractice in their representation because fee applicable limitation period as to the health care providers named in fee underlying case had run before plaintiff retained defendants. Plaintiff on fee other hand, contends that his claim against all defendants was still valid when he retained defendants.

(Defendants’ Plea asserts feat plaintiff’s claim should be dismissed due to fee statute of limitations issue as to all defendants in fee underlying action. In their memorandum in support of the Plea, defendants focus only mi two of fee four health cave providers named in fee underlying case. The court will consider fee question as to fee health care providers mentioned in fee memorandum.)

The relevant dates disclosed through discovery are as follows.

Plaintiff was treated at Stuart Circle Hospital from October 26, 1992, through October 28,1992.

During that hospitalization a nurse employed by Stuart Circle inserted a tube into plaintiff’s chest

October 28,1992, plaintiff was discharged from Stuart Circle.

November 17,1992, plaintiff was informed fee tube was still in his chest

November 19,1992, plaintiff was readmitted to Stuart Circle Hospital

November 2,1994, plaintiff retained defendants.

November 22,1994, defendants filed suit for plaintiff.

hi fee underlying case, plaintiff sued two doctors, Stuart Circle Hospital and a nurse employed at fee hospital Wife respect to fee statute of limitations issue, plaintiff alleges in Count 15 of fee Motion for Judgment

Plaintiffs case was dismissed due to the negligence of J. Flippo Hicks, Jr., and Ayers and Stolte. They failed to file fee motion for judgment within fee time fixed by fee applicable statute of limitations.

Defendants’ memorandum in support of fee Plea addresses this issue as to two health care providers named in fee underlying case, namely, fee hospital and the nurse.

Plaintiff relies on fee continuing treatment rule under Justice v. Natvig, 238 Va. 178 (1989), arguing on brief feat “[tjhe allegedly negligent treatment given Bell occurred during a continuous and uninterrupted treatment by Dr. Robertson and fee medical facility at which fee negligence took place, Stuart Circle Hospital.” Alternatively, plaintiff contends that, if the two year statute of limitations period applies horn fee date plaintiff was informed about fee tube, defendants should have filed plaintiffs action no later than November 17,1994.

Defendants argue first feat fee continuing treatment rule in fee cases does not apply to hospitals and nurses. Second, when plaintiff was discharged from Stuart Circle on October 28, 1992, there was no expectation of a continuing relationship between fee hospital and plaintiff.

This court sustained fee hospital’s and the nurse’s statute of limitations pleas in fee underlying case.¹ Hie court agrees wife that ruling. Hie question in this case is whether fee defendants were negligent in fee representation by failing to file some time sooner than they did, November 22,1992, after they were retained on November 2. The court finds that fee applicable limitation period for medical malpractice actions against fee hospital and fee nurse in fee underlying case was two yearn pursuant to § 8.01-243(A). Further under § 8.01-243(C)(1) in fee words of fee statute:

die two year statute of limitations period shall be extended in the actions for malpractice against a health care provider...

1. In cases arising out of a foreign body having no therapeutic or diagnostic effect being left in die patient’s body for a period of one year from the date the object is discovered or reasonably should have been discovered....

Plaintiff received treatment at die hospital and from the nurse for a discrete period ending on October 28, 1992, with no implication of the continuing treatment rule. However, die court finds from die time of discovery of die tube under § 8.01-243(C)(1) a two year statute of limitation applies. Thus, the claim was not filed in time after defendants were engaged.

Accordingly, die court overrules defendants’ Plea as it relates to the claims of negligence for fitiling to timely file against the hospital and the nurse in the underlying action.

1 Plaintiff nonsuited his claim against the first doctor. The court granted the second doctor's plea of the statute of limitations.