State amends med-mal certification timelines

Plaintiffs’ attorneys filing medical malpractice claims must now comply with updated certification requirements.

Virginia law previously required a plaintiff to possess a signed, written expert opinion before service of process in med-mal cases. The plaintiff’s lawyer had to respond within 10 days of receipt of a request from defense counsel, stating that the written opinion existed at the time the request for service of process or acceptance of service was made.

The amended statutes, which took effect on July 1, are in Virginia Code sub sections 8.01-20.1, 8.01-50.1, and 16.1-83.1. The amendments cover personal injury, wrongful death and general District Court cases.

One of the changes sets out the exact wording of the written expert opinion: “Based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed.”

Under the amended statutes, no additional statements or opinions are required from the expert witness. However, the plaintiff may have separate certifying opinions from other health care providers regarding standard of care and causation.

The amended statutes also add a requirement that the plaintiff’s counsel certifies the existence of the written expert opinion. A written request from defense counsel is no longer required.

Instead, the plaintiff must now certify within 21 days of the filing of the defendant’s answer that the required expert witness opinion was in their possession at the time of service. The language for that is also spelled out: “This is to certify that the plaintiff has complied with § 8.01-20.1/§8.01-50.1 of the Code of Virginia.”

Tony Russell, a med-mal attorney at Michie Hamlett, said the old statute lacked clarity, prompting some defendants to use it “as a sword to try to get rid of cases,” including meritorious suits.

Melissa Ray, a partner at Nicholas Zauzig, said the changes are important to take note of, especially if a plaintiffs’ lawyer hasn’t handled a med-mal case recently. Ray, president-elect of the Virginia Trial Lawyers Association, pointed to attempts by defendants to use the rules to derail med-mal cases as “one of the main reasons the VTLA legislative team went about lobbying to get this change to go through.”

One tactic, she said, was burying the request for certification within other pleadings, which might result in it being overlooked. Specifying the required language should also reduce issues of contention, Ray added.

“There have been some instances where the defense was making challenges to the certificate on very specific grounds, basically trying to imply that the statutes required a plaintiff’s lawyer to have a certificate that was signed by an expert that laid out the entire case — all of the allegations, causation, almost like an expert designation,” Ray said.

As a result, she said, some judges were being “persuaded” to throw out cases for lack of specificity.

Russell agreed that ambiguity in the old statute created issues regarding the required language.

Some plaintiffs would certify that they complied with the specific code section. But, Russell said, some defense attorneys would demand more specificity. For example, they might demand certification that the defendant and other health care providers employed by them deviated from the standard of care, and that said deviation proximately caused the plaintiff’s injuries or death.

Origin of certification

Virginia’s certification requirement for med-mal actions was put into place 20 years ago.

Before 2005, Russell said, Virginia didn’t handle med-mal cases differently than car accidents, product liability or defamation cases. Plaintiffs could file a med-mal suit and serve it on a health care provider without certification.

Russell said the certification requirement arose from lobbying by the health care industry “under the guise of ensuring that cases were only pursued that had merit, which from a plaintiff’s perspective, doesn’t make any sense.”

The rationale behind mandatory certification likely stems from the expectation that the plaintiff’s attorney has the appropriate expert testimony available to present the case to a jury, said Nick Leitch, a plaintiffs’ med-mal attorney with Gentry Locke.

Russell noted that medical malpractice cases are also the only type of actions requiring certification.

“If a doctor runs their car into someone by running a red light and injuring them, that person can file suit against the doctor without any certification. But if the doctor runs the red light in a surgery and operates on the wrong leg, then you have to go through these certification statutes to pursue that case,” he said.

Russell noted that an exemption exists under which expert certification is not required if the plaintiff, in good faith, alleges a med-mal action that asserts a theory of liability where expert testimony is unnecessary. He also said the updated statute contains a provision that, upon good cause shown, the court may conduct an in-camera review of the plaintiff’s certifying expert opinion.

Looking ahead

Russell identified three main takeaways for med-mal practitioners.

First, attorneys need to know about this change so they can prepare the appropriate certifications or educate their experts as to what specifically has to be included.

Attorneys must also be aware of the updated, specific language requirements and be mindful of the new 21-day deadline, he said.

“What I’ve always done, and I think a lot of plaintiffs’ med-mal attorneys do to avoid issues, is include a certification in the complaint,” Russell said. “I didn’t want there to be any issue with a request for certification or with the timing of a response.”

Since the new statutes only went into effect about six weeks ago, the potential negative outcomes or sanctions for not following the updated rules aren’t clear, according to Julie Perry, who has a med-mal practice at Gentry Locke. While the penalty for failing to have a certified expert is likely dismissal, the outcome for failing to confirm you have a certifying expert within the 21-day period isn’t spelled out.

Leitch said it’s unlikely that a court would “engage in the ultimate sanction of dismissal” for a first offense of failing to follow the new rules.

“I suspect the court would look at counsel pointedly and say ‘You’re late — you’ve got 10 days,’” he said.

And, he added, there’s a difference between not having what the law requires and simply failing to certify that you have what you’re required to have.

“I see those as two different kinds of problems, one being significantly more problematic,” Leitch said.

Ray that certification, while required by law, seems unneeded.

“There’s always the underlying argument by plaintiffs’ attorneys that there really should be no need for certification because if we’re filing a lawsuit, it’s because we have support for it,” she said. “Lawyers, despite what some people may say, aren’t filing frivolous lawsuits left and right. … [T]he fact that we filed a lawsuit should be certification enough.”