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One for med mal defendants

At last, medical malpractice defense attorneys must be saying, a decision from the Supreme Court of Virginia in our favor – albeit in the form of an unpublished order.

To say that the case of Lindamood v. Jamshidi had languished in Fairfax County Circuit Court would be an understatement. The widow of Thomas C. Lindamood filed the complaint in May 2000, more than three years after her husband died from what she said was negligence in treating her husband’s neurological condition.

In October 2001, the plaintiff produced an expert medical opinion in response to discovery, after which, as the Supreme Court said gently, “the case went into a period of inactivity.”

Finally in April 2006, the defendant filed a motion to dismiss because nothing had happened in more than three years. The trial judge denied the motion but set a trial date in June 2007 and entered a uniform pretrial scheduling order that required the plaintiff to designate her experts three months before trial.

The plaintiff’s attorney missed the deadline, and the defendant filed a motion to dismiss the case with prejudice. The plaintiff admitted missing the deadline but contended that dismissal was too strong a sanction in light of a serious, prolonged illness by her attorney and the absence of prejudice to the defendant because he had known the nature of her expected expert testimony for more than five years.

Judge Arthrur B. Vieregg Jr., apparently deciding “enough is enough,” granted the motion and dismissed the case.

“Lindamood’s counsel became aware of his serious illness several months before the deadline for designation of her experts but failed to withdraw as counsel, associate another attorney, or request a continuance or an extension of the deadline,” the Supreme Court said today in affirming Vieregg’s ruling.

“Given the length of time the case had been pending, the court’s denial of a previous motion to dismiss for inactivity, and Lindamood’s failure to comply with the court’s order despite being given eight months to do so, we hold that the circuit court did not abuse its discretion by imposing that sanction.”

Fairfax attorneys Stephen L. Altman and Matthew D. Banks represented the defendant.

The ruling in the case argued last month follows two decisions in favor of plaintiffs on June 6, giving plaintiffs 11 straight published decisions in their favor from the court. Last week, the court issued an unpublished order that sided with a plaintiff.

By Alan Cooper

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