Susko v. Toor

91 Va. Cir. 372, 2015 Va. Cir. LEXIS 169
CourtNorfolk County Circuit Court
DecidedNovember 12, 2015
DocketCase No. (Civil) CL13-9379
StatusPublished

This text of 91 Va. Cir. 372 (Susko v. Toor) is published on Counsel Stack Legal Research, covering Norfolk County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Susko v. Toor, 91 Va. Cir. 372, 2015 Va. Cir. LEXIS 169 (Va. Super. Ct. 2015).

Opinion

By Judge David W. Lannetti

Today the Court rules on the Motion To Dismiss New Claims and Special Plea of the Statute of Limitations filed by Defendant Children’s Hospital of the King’s Daughters, Inc. (“CHKD”). The Court also rules on two other Motions To Dismiss the entire case, one filed by Defendants Svinder S. Toor, M.D., Larry Eugene White, M.D., and Children’s Specialty Group Child & Adolescent Neurology (“Children’s Specially Group”) and one filed by CHKD.

Although the case is styled with “Christian T. Susko and Tammy M. Susko” as administrators, the proper administrators apparently are “Christopher Susko and Tammy M. Susko.”

The first issue that needs to be resolved by the Court is whether the claims asserted against CHKD and its staff by Plaintiffs Christopher [373]*373Susko and Tammy M. Susko (“the Suskos”), administrators of the estate of decedent Christian T. Susko (“Christian”), in their Bill of Particulars are untimely filed and, therefore, barred by the applicable statute of limitations. Second, the Court must decide whether the Suskos reasonably believed — prior to requesting service of process on Defendants — that Registered Nurse Joahanna D. Evans Budge, the individual designated by the Suskos as the certifying expert witness in Plaintiff’s Certification of Expert Witness Opinion, would qualify as an expert witness as required by § 8.01-50.1 of the Code of Virginia.

The Court holds that the claims against CHKD and its staff raised in the Suskos’ Bill of Particulars are barred by the applicable statute of limitations pursuant to § 8.01-243(A) of the Code of Virginia. The Court, therefore, dismisses those claims, with prejudice. The Court also holds that, as a matter of law, the Suskos could not have reasonably believed prior to requesting service of process on Defendants that Nurse Budge would qualify as an expert witness because, as a non-physician, Nurse Budge is not qualified to provide expert testimony concerning the applicable standard of care or the proximate cause of the human physical injuries sustained by Christian. Because the Suskos failed to obtain an adequate certifying expert opinion prior to requesting service of process on Defendants, § 8.01-50.1 requires the Court to “impose sanctions” on the Suskos. The Court concludes that, considering the circumstances present here, dismissal of the entire action with prejudice is the appropriate sanction. The Defendants’ respective motions to dismiss, therefore, are granted and this entire action is dismissed with prejudice.

Background

The Suskos commenced this action following the August 18,2010, death of their three-year-old son, Christian. The Suskos filed a wrongful death claim in July 2012, but subsequently nonsuited that action. (Tr. 6.) The Suskos refiled the same claim (the “Complaint”) in December 2013 and served the Complaint on Defendants in December 2014. (Id.) Defendants requested the Suskos provide a copy of the statutorily required expert certification shortly thereafter. (Id.) The Suskos subsequently provided an alleged expert certification prepared by Nurse Budge, which is dated December 5, 2014.

In the Complaint, as amplified by a subsequently filed Bill of Particulars, the Suskos allege that Christian received treatment from Toor and White, neurologists employed by Children’s Specialty Group, in June and July 2010 while a patient at Children’s Hospital of the King’s Daughters (the “Hospital”) in Norfolk, Virginia. (Bill of Particulars 1-2.) The Suskos assert that Christian sustained a lumbar puncture and developed pneumonia and a staph infection during his stay at the Hospital while under the care of Toor and White. (Id.) The Suskos further claim that nurses employed by [374]*374CHKD failed to adequately turn or reposition Christian, which caused him to develop “ventilator/hospital-acquired pneumonia.” (Id. at 1.) The Suskos also contend that CHKD’s nursing staff failed to properly “assess, document, and trea[t]” a skin breakdown behind Christian’s ear and that CHKD’s staff failed to properly communicate with each other, all of which contributed to Christian’s demise. (Id. at 2-3.) Finally, the Suskos argue that Toor negligently failed to transfer Christian to a different facility after the Suskos made such a request. (Id. at 2.) Christian eventually was transferred to VCU Health System MCU Hospital and Physicians (“MCU”), but the Suskos allege that this occurred too late because, by then, “the infection was out of control and Christian . . . could not be saved.” (Compl. 6.) Christian died after his transfer to MCU, and the Suskos argue that Defendants’ negligence proximately caused his death. (Bill of Particulars 1-2.)

The Suskos specifically allege that Toor, White, and CHKD “were negligent by failing to properly diagnose” an infection that afflicted Christian, “failing to properly treat this infection,” and “fail[ing] to properly treat [Christian], which resulted in [Christian’s] death.” (Compl. 1.) The Suskos request awards of both compensatory and punitive damages. (Id. at 3-4.)

Toor, White, and Children’s Specialty Group demurred to the Complaint, arguing that the Suskos failed to state a claim against Children’s Specialty Group and failed to plead facts that would justify an award of punitive damages. CHKD filed a separate Demurrer asserting the same argument challenging the Suskos’ punitive damages claim.

CHKD filed a Motion To Dismiss New Claims and Special Plea of the Statute of Limitations, arguing that the new claims raised in the Bill of Particulars are barred underthe applicable statute of limitations. Toor, White, and Children’s Specialty Group filed a Motion To Dismiss the Complaint, contending that the Suskos failed to obtain the expert certification required by § 8.01-50.1 of the Code of Virginia; they specifically assert that the Suskos could not have reasonably believed that Nurse Budge would qualify as an expert witness on the issues of deviation from the applicable standard of care and proximate causation of death. CHKD filed a separate Motion To Dismiss the Complaint, contending that Nurse Budge cannot qualify as an expert witness on proximate causation.

On September 17,2015, counsel appeared before the Court and presented argument on the motions to dismiss and demurrers. As resolution of the motions to dismiss is dispositive of this action under the circumstances, the Court rules only on these motions.

[375]*375 Positions of the Parties

A. CHKD’s Motion To Dismiss New Claims and Special Plea of the Statute of Limitations

CHKD contends that the Suskos raise claims against CHKD and its staff in their Bill of Particulars that were not previously asserted in the nonsuited action. (Def.’s Mot. To Dismiss New Claims 1-3.) CHKD argues that these new claims must be dismissed as untimely because the Suskos failed to assert them within the statutory period of limitations. CHKD notes that, pursuant to § 8.01-244(B) of the Code of Virginia, wrongful death actions against health care providers must be brought within two years of the decedent’s death, which the Suskos failed to do. CHKD asserts that, here, the Suskos failed to raise the new claims within two years of Christian’s death on August 18, 2010. (Tr.

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Cite This Page — Counsel Stack

Bluebook (online)
91 Va. Cir. 372, 2015 Va. Cir. LEXIS 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/susko-v-toor-vaccnorfolk-2015.