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Negligent Retention Claim Does Not ‘Relate Back’

In this suit alleging decedent died from a massive overdose of morphine after defendant hospice nurses mistakenly crossed morphine and saline lines, the Buchanan County Circuit Court says plaintiff’s claim for negligent retention in her third complaint does not relate back to her original complaint and is therefore time-barred.

Under Va. Code § 8.01-6.1, the doctrine of relation back provides that a claim asserted in an amended pleading relates back to the date of the original pleading if 1) the claim or defense arose out of the conduct, transaction or occurrence set forth in the original pleading; 2) the amending party was reasonably diligent in asserting the amended claim or defense; and 3) parties opposing the amendment will not be substantially prejudiced in litigating on the merits as a result of the timing of the amendments.

Virginia circuit courts are split regarding the effect of Va. Code § 8.01-6.1. Certain circuits hold that Code § 8.01-6.1 was merely the legislature’s attempt to codify the common law as enunciated in Vines v. Branch, 244 Va. 185 (1992); other circuits have held the statute reflects the legislature’s intent to depart from the Vines test.

While the Supreme Court of Virginia has not squarely resolved the split among the circuits, the court’s decision in Morrisette v. Warden, 270 Va. 188 (2005), is enlightening. There, the court noted that an ineffective assistance of trial counsel was a new claim in a petition for a writ of habeas corpus, distinct from the earlier claim of ineffective assistance of appellate counsel. The court said the trial counsel claim did not relate back to the initial petition under Code § 8.01-6.1, and was therefore time-barred. By recognizing that the ineffective assistance of trial counsel did not relate back to the original petition because it was a new claim, the Supreme Court appeared to use the Vines test when analyzing Code § 8.01-6.1.

A comparison with Code § 8.01-6 is even more enlightening. That statute permits parties to correct misnomers by way of amended pleadings and that section also contains a relation back provision. Courts have interpreted this provision to mean an amended complaint relates back to the original pleading where the parties are the same and no new claims are added. This interpretation of Code § 8.01-6 reflects an adoption of the common law doctrine of relation back, which has evolved into the Vines test. The court is of the opinion that Code § 8.01-6.1 mirrors Code § 8.01-6 and reflects the common law test as enunciated in Vines; when a new claim is added in an amended complaint, it does not relate back to the original complaint under Code § 8.01-6.1.

In the present case, the additional claim of negligent retention, first asserted in the amended complaint, finds no factual basis in the original complaint. To state a claim, the factual allegations must include conduct on the part of the employer, here Special Care Home Health. Plaintiff contends SCHH sent defendant to decedent’s residence to install an IV pain pump. This factual allegation does not tend to show that SCHH was negligent by maintaining the defendant nurse in its employ; it merely shows she was an employee of SCHH. Even if another defendant was employed in a supervisory role and her conduct is imputed to SCHH, the facts in the original complaint are insufficient to show that the supervisor or SCHH knew or should have known the other defendant was dangerous and likely to cause harm. The original complaint did not contain an allegation that either the supervisor or SCHH knew or should have known the other defendant was dangerous or likely to cause harm. SCHH’s plea in bar is granted.

Plaintiff’s allegations that defendants are professional nurses and “know that the failure to properly set up an IV can cause serious injury or death” are insufficient to establish willful or wanton conduct to support a claim for punitive damages. However, plaintiff alleges in the third complaint that defendant, “after having installed the pump knowing that she had little to no experience consciously and with disregard” chose “not to inspect the lines,” which would have revealed the lines had been reversed, states a claim for punitive damages as to defendant nurses, but not as to SCHH.

Rife v. Buchanan County Hospice (Johnson) No. 627-14, Jan. 8, 2015; Buchanan County Cir.Ct.; Rob Starnes, Mark S. Brennan for the parties. VLW 015-8-002, 10 pp.

VLW 015-8-002

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