Recently, the Honorable Brett A. Kassabian, a judge of the Fairfax Circuit Court, reversed an earlier ruling and allowed a case to proceed against Loudoun Medical Group, a corporation who employed a surgeon.
In the lawsuit, the plaintiff had named the doctor's practice (which, as it turned out, was simply a trade name) instead of the true corporate owner, Loudoun Medical Group. The corporation moved to dismiss the case because of the misnomer and argued that a misnomer cannot be corrected if the corporation did not have notice of the claim within two years of the start of the statue of limitations.
When the defendant originally filed the motion to dismiss, the patient argued that a misnomer can be corrected at any time. Judge Kassabian initially ruled for the defendant but invited further briefing on the matter.
After further investigation and research the plaintiff filed an additional brief that argued:
- The judge had ruled on this precise issue with the same defendant and the same defense law firm a few years ago. The last time the judge had said that the defense argument "did not make sense" and he had denied the motion to dismiss. (This was an unreported decision. Plaintiff's counsel became aware of the existence of the case after the intial round of briefing. Counsel in the prior case was attorney Michael Shevlin.)
- That every respected authority on civil procedure in Virginia agreed with the position taken by the plaintiff - a misnomer can be corrected even after the statute of limitations has run.)
- That a respected Federal Judge had once stated that in situations like this, the law is "not a children's game" but an effort by adults to achieve justice.
The defendant also filed a brief.
The court ruled that upon reconsideration, the position taken by the plaintiff was the correct one. The court overruled the motiom to dismiss.
We then moved to file an amended complaint that comported with the Court's order. The defedants filed this reply which, in our view, sought to re-argue the misnomer issue yet again.
Our case has now been cited in a case in Newport News, Gibbons v Riverside Medical Group.
Here are the briefs from that case: