New Claims Allowed After Virginia Medical Malpractice Plaintiff Files Nonsuit
Ellen Dunston has been allowed to add new claims in her re-filed Virginia medical malpractice lawsuit following a nonsuit, even though the additional claims would have otherwise exceeded the statute of limitations.
Under Virginia law, a plaintiff is permitted one voluntary dismissal, which is referred to as a nonsuit. When a nonsuit is taken, the plaintiff has six months to re-file the action.
This lawsuit is based on an event that took place in 2006. Dunston had pursued medical treatment at the Loudoun Interventional Pain Center for her painful shingles. According to Dunston’s complaints, Dr. Cecil Huang was the anesthesiologist who administered treatment, by injecting her with an epidural steroid. Dunston suffered immediate reactions to the injection and was allegedly taken to a hospital. She now claims that the shot caused her to become paralyzed from the chest down and that as a result, she is confined to a wheelchair.
Dunston filed her first medical malpractice suit against Huang in 2008 in Loudoun County Circuit Court. She alleged inadequate monitoring and failure to provide “appropriate treatment and care.” When Dunston re-filed her lawsuit in federal court, she added new claims of failure to obtain informed consent and failure to perform the appropriate procedure.
The defendant tried to get the case dismissed. Since the lawsuit was filed outside the statute of limitations, which is two years, it would have been time barred, unless it was permitted due to the six-month extension period under the Virginia nonsuit statute.
After reviewing whether the added claims came from the same “action, transaction or occurrence” as the original lawsuit, the Alexandria federal judge decided to allow the case to move forward with the new claims.
The federal judge was right in allowing Dunston’s claims. This nonsuit statute is a longstanding Virginia law.