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Harris v. Dimattina9/15/1995
Opinion BY JUSTICE BARBARA MILANO KEENAN
In these appeals of judgments entered in medical malpractice actions, we consider whether the trial courts erred in sustaining pleas of the statute of limitations. The parties in both cases agree that the two-year limitation of Code § 8.01-243(A) applies. They disagree regarding the effect of the 1993 amendment to Code § 8.01-581.2, which eliminated the "notice of claim" requirement, and the effect of the repeal of former Code § 8.01-581.9, which contained certain tolling provisions.
Prior to its amendment in 1993, former Code § 8.01-581.2 provided, in part:
No action may be brought for malpractice against a health care provider unless the claimant notifies the health care provider in writing . . . prior to commencing the action. . . . The claimant or health care provider may within sixty days of such notification file a written request for a review by a medical malpractice review panel . . . . No actions based on alleged malpractice shall be brought within ninety days of the notification by the claimant to the health care provider and if a panel is requested within the period of review by the medical review panel.
Effective July 1, 1993, that section was amended to delete the requirement that a notice of claim be filed prior to filing a malpractice action against a health care provider. Acts 1993, ch. 928.
Before its repeal effective July 1, 1993, Acts 1993, ch. 928, former Code § 8.01-581.9 provided, in part:
The giving of notice of a claim pursuant to § 8.01-581.2 shall toll the applicable statute of limitations for a period of 120 days from the date such notice is given, or for 60 days following the date of issuance of any opinion by the medical review panel, whichever is later.
Although these appeals involve common questions of law, their procedural histories differ substantially. Therefore, we describe them separately.
HARRIS v. DIMATTINA
Heather Harris alleged that she suffered damages from medical malpractice occurring on July 15, 1991. On July 13, 1993, Harris mailed a notice of claim, pursuant to former Code § 8.01-581.2, to Michael DiMattina, M.D., trading as Michael DiMattina, M.D., P.C., and his employer, Dominion Fertility and Endocrinology Institute (collectively, DiMattina). In her notice of claim, Harris alleged that DiMattina failed to give her proper treatment in connection with certain surgical procedures and postoperative care. No party requested a medical malpractice review panel.
Harris filed her motion for judgment on October 26, 1993. DiMattina then filed a motion to dismiss, arguing that Harris's claim was barred by the two-year statute of limitations.
DiMattina asserted that Harris could not rely on the tolling provisions of former Code § 8.01-581.9, because its repeal constituted a procedural change in the law. He argued that, under Code § 8.01-1, procedural statutory changes apply to causes of action arising before, as well as after, the effective date of the changes. The trial court held that DiMattina was correct and granted the motion to dismiss. The trial court further observed: "Plaintiff filed the notice of claim within the two (2) year statute of limitations and after the new law was in effect. The Motion for Judgment could have been filed on time."
CUMBERLAND v. BOONE
Robert E. Cumberland alleged that he was injured during surgery performed on November 27, 1990, and during follow-up care continuing through January 9, 1991. He filed a notice of claim on D
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