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Virginia justices deny review of legal malpractice judgment

The Supreme Court of Virginia has refused to hear an appeal of a $1.75 million judgment against Washington medical malpractice lawyer Barry J. Nace and his firm.

A Richmond jury decided Nace’s firm was liable for negligence in filing a minor’s medical malpractice lawsuit without suing in the name of the minor’s “next friend.” A corrected lawsuit filed afterwards was barred by the statute of limitations, the Richmond court said.

The April 18 order by the high court leaves intact the judgment in favor of Sarah E. Gilbert of Goochland County, who was left paralyzed after surgery in 2004. The jury’s $4 million verdict was reduced to the applicable medical malpractice recovery cap of $1.75 million.

Gilbert and her lawyers face challenges to collection on the legal malpractice judgment. A U.S. district judge in Washington decided April 10 that Nace and his firm do not have insurance coverage for Gilbert’s claim. Nace had failed to list the potential claim when applying for legal malpractice coverage, the judge ruled.

Contacted earlier this month, Nace said he expected the denial of insurance coverage to be appealed.

Gilbert’s lawyers have pledged to pursue Gilbert’s judgment against both the firm of Paulson & Nace PLLC and Nace himself.

“The time has come for her to be compensated,” said Stephanie E. Grana of Richmond, one of Gilbert’s counsel.

Richmond lawyer H. Aubrey Ford III, another of Gilbert’s lawyers, said he has docketed the Richmond court’s judgment in both Washington and in Maryland, where Nace lives.

The error that led to the verdict against Nace’s firm was omitting the designation of a “next friend” for the under-aged plaintiff when filing suit.

“That is the law in Virginia, and, when you are going to file a case in Virginia, you need to know the law,” Grana said.

One of the issues Nace raised was whether Gilbert’s verdict should be reduced to account for attorneys’ fees, which would have been deducted from any recovery in her original medical malpractice case. The Supreme Court’s decision not to take the appeal leaves intact the trial judge’s ruling denying a deduction for fees.

Updated April 23 to add comments from Grana and information about the fee issue.

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