Claims After Nonsuit Are Barred as ‘New’

Claims added to a med-mal plaintiff’s recommenced action after nonsuit, alleging defendant physician failed to assess her fetus’s viability, terminated her pregnancy and left her infertile without advising her of other options, are new claims under the “same evidence” test, and the Roanoke City Circuit Court dismisses the claims as time-barred.

Plaintiff alleges defendant negligently performed a total abdominal hysterectomy to treat a uterine myoma, terminating a pending pregnancy and leaving plaintiff infertile. She also alleges defendant negligently punctured her bowel and failed to monitor and treat plaintiff properly after surgery, causing her to develop postoperative infection.

Plaintiff nonsuited her first action on Jan. 27, 2014, and recommenced her action on Feb. 19, 2014. Defendants contend she improperly added new claims to her recommenced action, and those claims are untimely under Va. Code § 8.01-229(E)(3). I conclude the new claims are untimely and grant the plea in bar.

Plaintiff’s first action alleged defendant performed the salpingo-oophorectomy without her consent, negligently performed the surgeries by puncturing her bowel and failed to properly monitor her postoperatively. In her recommenced action, she makes the same allegations and also alleges defendant failed to properly assess the fetus’s viability and plaintiff’s future ability to have a child, terminated plaintiff’s pregnancy and left her infertile without advising her of any options that would have allowed her to continue the pregnancy or have a child in the future.

Plaintiff cites Dunston v. Huang, 709 F. Supp. 2d 414 (E.D. Va. 2010), for the proposition that Va. Code § 8.01-229(E)(3) tolls all claims that arise from the same transaction or occurrence as the claims made in the first action. Defendants cite Allen v. Loudoun County Sanitation Authority, 82 Va. Cir. 496 (Fauquier County 2009), for the proposition that Code § 8.01-229(E)(3) only tolls claims that rely on the same evidence as the claims made in the first action.

Under the circumstances, the critical inquiry for this court is whether to adopt and utilize the same evidence test followed by the court in Allen, or whether to adopt and utilize the same transaction-or-occurrence test followed by the court in Huang. I find and conclude that the same-evidence test used by the court in Allen is the appropriate method for determining whether new claims asserted in a recommenced action are part of a previously asserted cause of action.

Applying the same-evidence test to the facts in this case, it is clear that plaintiff’s new claims rely on evidence not asserted in the September 2012 complaint. Specifically, the February 2014 complaint sets forth new factual allegations about plaintiff’s intent to become pregnant, whether she could have brought her baby to term, whether she could have ever brought a baby to term in the future, and whether defendant terminated plaintiff’s pregnancy.

Because plaintiff’s new claims do not rely on the same evidence as the cause of action asserted in the earlier complaint, Code § 8.01-229(E)(3) does not toll those claims and they are untimely.

Code § 8.01-6.1 does not save plaintiff’s new claims under a theory that they relate back to Sept. 10, 2012, the original filing date of the first complaint. The new claims are not amendments to the earlier complaint, but are claims asserted for the first time in plaintiff’s later complaint.

Lawton-Gunger v. Meyer (Carson) No. CL 24-347, June 12, 2014; Roanoke City Cir.Ct.; Paul L. Warren, Elizabeth Perrow for the parties. VLW 014-8-059, 9 pp.