Glenn v. DeLorme

3 Va. Cir. 349, 1985 Va. Cir. LEXIS 73

• Court: Fairfax County Circuit Court
• Decided: April 1, 1985
• Docket: Case No. (Law) 63150
• Status: Published

Opinion

By JUDGE J. HOWE BROWN

This medical malpractice case is before me upon Defendant Fairfax Hospital Association’s Motion to Dismiss. Fairfax Hospital contends that Plaintiff has not given notice to the Hospital of the claim asserted in the Motion for Judgment. Virginia Code Section 8.01-581.2 states in part:

No action may be brought. . . unless the claimant notifies such health care provider. . . prior to commencing the action. The written notification shall include. . . a reasonable description of the act or acts of malpractice. . . .

Plaintiff gave written notice pursuant to the statute on or about September 8, 1981. The notice alleges that Plaintiff entered the hospital on or about October 10, 1979; that she developed bacterial infection during an operation; that a nurse pulled an IV out of her arm and left her unattended; and that the nurse left a piece of the IV needle in her arm. No allegation is made as to how the bacterial infection was caused. The Motion for Judgment makes specific allegations of negligence against the Hospital: failure to complete culture reports; failure to complete sensitivity reports; improper and incorrect data kept; failure to complete laboratory reports; improper administering of medication.

The operative question deciding this Motion to Dismiss is whether the notice gives a reasonable description of the acts of malpractice alleged in the Motion for Judgment. I find that the notice does not give a reasonable description of the acts of malpractice alleged against the Hospital. The notice does not give any notice of an act or acts of malpractice resulting in the infection during the operation. The Motion for Judgment does not raise the claim of abandonment by the nurse or the leaving of a piece of IV needle in Plaintiff’s arm, the acts of malpractice that are specified in the notice. A person reading the notice and then reading the Motion for Judgment would not be able to tell that the two documents refer to the same events. The Hospital was entitled to better notice.

The Motion for Judgment is dismissed as to Defendant Fairfax Hospital Association.