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Tina Marie Lake v. Northern Virginia Women''s Medical Center Inc.2/28/1997
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge
In this appeal, we consider whether a plaintiff should be permitted to amend a motion for judgment at the threshold of trial to substitute the proper corporate defendant where the error in the original pleading was known to the defendants and actions taken by them misled the plaintiff as to the identity of the proper corporate defendant.
The material facts are not in dispute and primarily involve the various pleadings filed in this procedurally protracted medical malpractice case. For clarity, however, we will first recite those facts in the record which were ultimately disclosed by the defendants and which explain the identities and relationship of the parties.
Northern Virginia Women's Medical Center, Inc. (the Medical Center) operated a medical clinic in Fairfax at which legal abortions were performed. Wayne C. Codding, an accountant, and Dr. Thomas H. Gresinger are the sole stockholders of another legal entity which owns the Medical Center. The abortion involved in this case did not take place at the Medical Center clinic nor was the procedure performed by employees of the Medical Center.
Codding and Gresinger are also the sole shareholders of Fairfax Square Medical Associates, Inc. (Fairfax Square) which operated another medical clinic in Fairfax where the abortion involved in this case was performed. In 1988, Mark A. Barondess, in his capacity as assistant secretary of Fairfax Square, filed a declaration of fictitious name in the land records of Fairfax County to permit Fairfax Square to operate its clinic under the name "NOVA Women's Medical Center." Barondess is counsel for the defendants in the present litigation.
In short, Northern Virginia Women's Medical Center, Inc., and NOVA Women's Medical Center are separate entities. Each operated an abortion clinic in Fairfax and both were controlled by the same individuals.
We now turn to the procedural background of the case reflected by the pleadings. In November 1992, Tina Marie Lake filed a motion for judgment for medical malpractice in the Circuit Court of Warren County against Joel W. Match, M.D., the Medical Center, Gresinger, and Codding. Upon motion of the defendants, a change of venue to the Circuit Court of Fairfax County was granted, and an amended motion for judgment was filed in that court on February 11, 1993. Lake alleged that she had suffered permanent physical injury during an abortion performed in April 1991, in the course of which her uterus and an artery were lacerated. Lake further alleged that Match performed the abortion, and that Gresinger and Codding were the owners of the Medical Center "which operated a clinic that performed abortions . . . in Fairfax, Virginia." Responding to the 1993 motion for judgment, Gresinger, Codding, and the Medical Center (hereinafter collectively, the defendants), acting in concert, filed grounds of defense in which they admitted the allegations of the motion for judgment which identified them as parties, admitted that the Medical Center was a corporation that performed abortions at a clinic in Fairfax, and admitted that Gresinger and Codding were the sole stockholders and officers of the Medical Center. Additionally, the defendants admitted having required or approved of administrative procedures utilized by Match and other employees of the clinic. This pleading and subsequent pleadings and discovery filed by the defendants were signed by Barondess, as counsel.
Following extensive pre-trial proceedings, Lake took a voluntary nonsuit to the 1993 motion for judgment when her attorney became ill and otherwise unavailable. On June 17, 1994, L
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