General Assembly>Division of Legislative Services>Publications>Session Summaries>2003>Civil Remedies and Procedure

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Civil Remedies and Procedure

Passed

P HB1425

Civil remedies; suit for bad check. Increases the processing fee for bad checks from $25 to $35 and allows the holder to recover reasonable attorney's fees if awarded by the court.
Patron - Albo

P HB1458

Wage garnishments. Provides that wage garnishments are permitted to last up to 180 days, and that a writ of fieri facias issued in a wage garnishment shall be returnable not more than 180 days after the date of issuance.
Patron - Reese

P HB1477

Medical malpractice; former rate review board. Repeals an obsolete code provision that gave immunity to members of the rate review board established by the Virginia Hospital Association. The board is no longer in existence. This legislation is a recommendation of the Virginia Code Commission.
Patron - Landes

P HB1770

Medical malpractice action limitation; private emergency medical care attendants or technicians. Adds emergency medical care attendants or technicians who provide fee-based emergency medical services to the definition of health care providers for purposes of the limitation on liability for medical malpractice actions.
Patron - Nutter

P HB1840

Lost evidences of debt. Adds "contract" and "open account agreement" to documents evidencing debt upon which a civil action may be maintained where no written evidence of those documents exists. The bill requires the plaintiff to verify under oath that the evidence of debt has been lost or destroyed and eliminates the requirement for a bond. This modification is consistent with current procedure in many Virginia courts. Where a copy of the lost original exists, the bill requires the court to give effect to the copy as if the original had been placed in evidence.
Patron - Reese

P HB1864

Medical malpractice; independent contractors. Adds independent contractors to the definition of health care provider for purposes of medical malpractice claims.
Patron - O'Bannon

P HB1906

Medical malpractice; expert witnesses. Limits the number of expert witnesses a party may designate, identify, or call to testify to no more than two per medical discipline on any issue presented. The bill does not limit the number of treating health care providers who may be called as witnesses. The bill permits the court to waive any limitations on medical experts, so long as the calling party pays all the costs incurred in their discovery, and to limit the number of other experts a party may designate, identify, or call to testify in the action.
Patron - Melvin

P HB1921

Fiduciary duties; probate tax. Amends sections that pertain to the administration of small amounts of money (payment into court, fiduciary may qualify without security, surrender of incapacitated person's estate) to increase the dollar amount to $15,000. Raises from $10,000 to $15,000 the value of an estate that is subject to probate tax. This bill is a recommendation of the Judicial Council.
Patron - Almand

P HB2184

Certain immunity for health care providers during man-made disasters under specific circumstances. Provides, in the absence of gross negligence or willful misconduct, any health care provider who responds to a man-made disaster by delivering health care to persons injured in such man-made disaster immunity from civil liability for any injury or wrongful death arising from abandonment by such health care provider of any person to whom such health care provider owes a duty to provide health care when (i) a state or local emergency has been or is subsequently declared relating to such man-made disaster; and (ii) the provider was unable to provide the requisite health care to the person to whom he owed such duty of care as a result of the provider's voluntary or mandatory response to the relevant man-made disaster. This provision also provides, in the absence of gross negligence or willful misconduct, any hospital or other entity credentialing health care providers to deliver health care in response to a man-made disaster immunity from civil liability for any cause of action arising out of such credentialing or granting of practice privileges if (i) a state or local emergency has been or is subsequently declared relating to such man-made disaster; and (ii) the hospital has followed procedures for such credentialing and granting of practice privileges that are consistent with the Joint Commission on Accreditation of Healthcare Organizations' standards for granting emergency practice privileges. This bill notes that "health care provider" means those professions defined in the medical malpractice law and "man-made disaster" means the circumstances described in the emergency services and disaster law. Further, the immunity provided by the new section in this bill will be in addition to, and not be in lieu of, any immunities provided in other state or federal law, including, but not limited to, Virginia's Good Samaritan law and emergency services and disaster law.
Patron - O'Bannon

P HB2305

Name change; preventing identity theft. Provides that the court order granting a name change contains only the person's old name or names, new name, and address, and not the sensitive information (such as the applicant's mother's maiden name and possibly the applicant's social security number) required for the name change application. The bill thus protects sensitive information from being included in the public order and deed books, while ensuring that all necessary information is retained in the person's complete court file and is transmitted, as necessary, to the State Registrar of Vital Records and the Central Criminal Records Exchange. The bill also requires that name changes ordered as part of a decree of divorce are issued as separate orders, so that detailed and sensitive information contained within the decree of divorce (such as the names of minor children, and custody and support arrangements) is not disclosed in the order or deed books.
Patron - Devolites

P HB2741

Personal injury claims; Commonwealth's lien. Adds nursing homes to the medical service providers that have liens on an injured person's personal injury claim. The bill provides that in any action against a nursing home for personal injuries or wrongful death, the injured party or his personal representative must give notice of the suit to the Department of Medical Assistance Services (DMAS) if DMAS has paid for any health care services. Notice must be provided within 60 days of filing the lawsuit or within 21 days of determining that DMAS has paid for health care services, whichever is later. The bill requires that DMAS respond in writing to requests for lien amounts within 60 days of receipt of any such request.
Patron - Kilgore

P SB788

Incarcerated felon divorce; guardian ad litem. Provides that the guardian ad litem that must be appointed for an incarcerated felon in a divorce action will be paid for out of the criminal fund in certain limited circumstances involving domestic physical or sexual assault. The guardian ad litem fee will be taxed against the felon as a part of the costs of the proceeding and, if collected, repaid to the Commonwealth.
Patron - Deeds

P SB815

General receivers; use of social security numbers, etc., on affidavits. Deletes requirement that beneficiary's social security number and birthdate and the proposed dates of final and periodic disbursements routinely be included in the court order and provides that instead the general receiver file a sealed affidavit with this information.
Patron - Norment

P SB856

Rules of Court. Provides that the Supreme Court will no longer have to distribute the Rules of Court to certain parties listed in the Code. Amendments to the Rules of Court are placed on the Supreme Court's Internet site as soon as they are adopted and this is the primary source for the bench, bar and public to become aware of new Rules. The Rules are also published in Virginia Lawyer's Weekly and included in the Code of Virginia when it is updated. The bill also deletes the requirement that circuit court clerks keep a special book of Rules and amendments to the Rules. The bill will save approximately $7,500 in printing costs and was recommended by the Judicial Council for this reason.
Patron - Stosch

P SB897

Hospital and health care worker immunity; smallpox vaccine. Provides that, in the absence of gross negligence or willful misconduct, (i) a health care provider that administers the smallpox vaccine to health care workers is not civilly liable for vaccine-related injuries to its health care workers or to third parties who are injured by close contact with the vaccinated health care workers and (ii) the immunized health care worker is not liable for any injuries sustained by a person who has indirect or direct contact with the worker. A "health care provider" is one participating in a smallpox preparedness program pursuant to a declaration by the Department of Health and Human Services through which individuals associated with the health care provider have received the smallpox vaccine or other smallpox countermeasure. A "health care worker" means a health care worker to whom a smallpox vaccine or other smallpox countermeasure has been administered as part of a smallpox preparedness program pursuant to a declaration by the Department of Health and Human Services. In order for immunity to attach, the vaccine must be administered in accordance with the recommendations of the Centers for Disease Control and Prevention relating to immunization of health care workers. The act is in force from the date of its passage, and the immunity provisions expire on July 1, 2005.
Patron - Watkins

P SB970

Court interpreters. Provides that the court shall fix the compensation of qualified interpreters, appointed by the court in civil and criminal cases for non-English speaking parties or witnesses, in accordance with guidelines set by the Judicial Council. This bill is a recommendation of the Judicial Council.
Patron - Trumbo

P SB984

Lawyers Helping Lawyers; civil immunity. Revises statute that grants civil immunity for persons assisting in Lawyers Helping Lawyers to reflect its change in status from an entity of the Virginia Bar Association to a free-standing Virginia nonprofit, nonstock corporation. Lawyers Helping Lawyers provides help to members of the legal profession who have substance abuse problems or are suffering from mental illness.
Patron - Mims

P SB985

Anonymous plaintiff. Provides that any party can move for an order concerning the propriety of anonymous participation in a proceeding and lists the factors that the court is to consider in determining whether anonymity can be maintained. The issue may be raised at any stage of the litigation when circumstances warrant a reconsideration of the issue. If the court orders identification, the pleadings and dockets will be amended to reflect the true name back to date of filing. Where a party is proceeding anonymously, the court shall ensure that the parties are afforded all the rights, procedures, and discovery to which they are otherwise entitled. This bill is a recommendation of the Boyd-Graves Conference.
Patron - Mims

P SB1243

Class and beneficiaries; when determined. Adds as a new class of beneficiaries under the Virginia wrongful death act the beneficiaries who inherit when a person dies intestate.
Patron - Trumbo

Failed

F HB1456

Adverse possession. Provides that the nonpayment of real estate taxes by an adverse claimant/plaintiff on land that is the subject of an adverse possession claim shall serve as a bar to the claim, if real estate taxes were paid on the land by the owner/defendant.
Patron - Albo

F HB1616

Civil remedies; consolidation of asbestos cases. Provides that interlocutory orders entered in mass claim cases against manufacturers or suppliers of asbestos or products for industrial use that contain asbestos may be appealed pursuant to the procedures established in § 8.01-670.1. That Code section establishes a process for interlocutory appeal of questions of law during the pendency of certain civil cases.
Patron - Albo

F HB1629

Sheriffs' fees. Increases and clarifies some of the fees charged by sheriffs for (i) out of state service, (ii) sheriff's commission on executing a writ, and (iii) collection of expenses of advertising.
Patron - Cosgrove

F HB1691

Punitive damages for driving while intoxicated. Provides that the plaintiff may offer competent evidence, not limited to the test results following an arrest for drunk driving, to rebut the defendant's evidence that the defendant's blood alcohol concentration was less than 0.15 percent or more by weight by volume or 0.15 grams or more per 210 liters of breath. The amount necessary to establish punitive damages culpability is 0.15 percent or more by weight by volume or 0.15 grams or more per 210 liters of breath. The bill also clarifies that exemplary damages may be awarded for willful and wanton conduct that is not specifically described in the section.
Patron - McQuigg

F HB1705

Physician liability for uncompensated care to the indigent; immunity. Provides that any licensed physician who delivers health care services without charge to individuals who are indigent shall not be liable for any civil damages for any act or omission resulting from the rendering of such services in good faith unless such act or omission was the result of such physician's gross negligence or willful misconduct.
Patron - Purkey

F HB1715

Medical malpractice actions; venue. Requires that venue for medical malpractice actions shall lie in the city or county in which the majority of the allegedly defective medical care was provided.
Patron - Hogan

F HB1835

Eliminating immunity of physicians; tests not authorized by physicians. Eliminates the immunity of a physician from civil liability for his failure to review, or respond to, results of tests he neither requested nor authorized.
Patron - Reese

F HB1850

Persons providing on-call services in hospital emergency rooms. Provides for immunity from liability for acts or omissions resulting from the rendering of emergency care in hospital emergency rooms by persons agreeing to be on call in a hospital emergency room in the absence of gross negligence or willful misconduct, under the following circumstances: (i) such person is licensed by a health regulatory board and is acting within his scope of practice; (ii) the emergency care is rendered to a person who has not previously been cared for by the person or by another person professionally associated with the person for the illness or injury causing the emergency; and (iii) the medical records of the person receiving treatment are not reasonably available to the person rendering the care. The immunity herein granted shall apply only to the emergency medical care provided.
Patron - Lingamfelter

F HB1892

Service on petit juries. Strengthens requirements for service on a petit jury by (i) stating service as an obligation; (ii) limiting the automatic disqualifications from jury service, removing lawyers from the list of persons automatically exempted from jury service and limiting exemptions from jury service by request to people aged 70 years or older or whose spouse is summoned to serve on the same jury panel; (iii) specifying requirements for postponing jury service and providing that failure to appear is a Class 2 misdemeanor; (iv) specifying grounds for authorizing excuses from jury service; (v) establishing the rights of petit jurors, including wage payment requirements for employers with more than five employees, and limiting service periods to one day except where a juror is selected for jury service; and (vi) establishing a "Lengthy Trial Fund," supported by fees on civil cases, to provide wage supplementation or replacement of up to $500 per day per juror when the period of jury service reaches 11 days. The bill repeals § 8.01-341.2, which allowed deferral or limitation of jury service on the grounds that service on specific dates or during a specific term would cause "particular occupational inconvenience." The bill's effective date is October 1, 2003.
Patron - Albo

F HB1965

State-funded mediation. Eliminates practice of state payment for mediation services in child custody, support, and visitation cases except where both parties are deemed indigent per the guidelines used for court-appointed counsel in criminal cases. The bill clarifies that the $100 fee is for all services provided in the course of a mediator's single appointment to a family.
Patron - Athey

F HB1966

State-funded mediation. Eliminates establishment of set fee for mediators and practice of state payment for mediation services in child custody, support and visitation cases.
Patron - Athey

F HB1981

Discovery of expert witness testimony. Permits the court in medical malpractice actions to establish a scheduling order that requires the plaintiff to designate his expert witnesses no later than 120 days before trial and the defendant to designate his expert witnesses 90 days before trial. The standard timeframes in civil actions now are 90 days and 60 days, respectively. The bill is intended to ensure that in complicated medical malpractice cases medical experts are disclosed sufficiently early to permit more educated settlement discussions.
Patron - Athey

F HB1982

Testimony by treating physicians; consent of patient required. Prevents a plaintiff's treating physician from offering any testimony as to the standard of care, breach of standard, or causation without the patient's consent. The bill also prevents testimony by any other members of that treating physician's practice without the patient's consent, regardless of whether the individual treated plaintiff. Under current law, there are no explicit obstacles to such testimony but because of the patient-physician privilege, circuit courts are split on whether testimony without plaintiff's consent (potentially adverse to plaintiff) is admissible.
Patron - Athey

F HB2111

Enforcement of recorded private restrictions. Provides that no action shall be brought to enforce a private restriction recorded in the land records of a locality in which the property is located or a notation on a filed map pertaining to the use of privately owned land, the type of structures that may be erected thereon or the location of such structures unless such action or proceeding is commenced within 10 years of the time that the person seeking to enforce such restriction had actual or constructive knowledge of such violation. This section shall not apply to any private restriction or notation pertaining to (i) any public utility easement; (ii) any right-of-way; (iii) any park or open space land; (iv) any private driveway, roadway or street; or (v) any sewer line or water line.
Patron - Barlow

F HB2278

Exception to hearsay rule for recent complaint of a crime against a person. Provides that statements made by an alleged victim of a crime against a person soon after the commission of the offense to a law-enforcement officer investigating the crime shall be admissible as an exception to the rule against hearsay, not as independent evidence of the offense, but for the purpose of corroborating the testimony of the complaining witness, provided that the person who made the statement is present at the trial or hearing and is available for cross-examination.
Patron - Hurt

F HB2391

Parental liability for actions by minors. Increases the liability for parents for acts by minors from $2,500 to $5,000, unless the owner has insurance, then the amount recovered is limited to any and all deductibles not recoverable by the owner from the insurance company.
Patron - Albo

F HB2499

Returns by person serving process. Provides that private process servers shall be exempt from the requirement to notarize returns if such server has provided the court a copy of his current errors and omissions insurance policy of $1 million or more.
Patron - Griffith

F HB2520

Medical malpractice; limit on attorney fees. Provides that beginning with medical malpractice actions accruing on or after July 1, 2003, attorney fees shall be limited in accordance with the following fee schedule: 33 and one-third percent of the first $150,000 of the sum recovered; 25 percent of the next $150,000 recovered; 20 percent of the next $500,000 recovered; 15 percent of the next $150,000 recovered; and 10 percent of any amount over $950,000 of the sum recovered. The bill applies the percentage limitations to the sum recovered by the plaintiff through trial, settlement, or arbitration, less the expenses related to the action but including any liens for medical care or treatment. On application of the attorney, and with notice to the plaintiff, the court in which the action is pending may adjust the compensation that would be awarded by the fee schedule on the basis of specific factors, including the extent to which the sum recovered, less any legal fees, compensates the plaintiff for his damages.
Patron - Morgan

F HB2586

Future potential liability. Provides that claims, counterclaims, cross-claims and third-party claims may be based on future potential liability regardless of whether the claim is stated in the alternative, or whether any demand for payment has been asserted against, or any payment or other discharge of liability made by, the person asserting such claim. This bill thus creates a new code section to clarify the ability to sue for future potential liability under § 8.01-281. The bill overrules the Supreme Court's decision in Charles Rutter, Executor of the Estate of Mildred Duncan v. Jones, Blechman, Woltz & Kelly, PC, et al., 2002 Va. LEXIS 101. In Rutter, plaintiff executor sought to assert a claim of malpractice against the attorneys who prepared a will on the grounds that negligent drafting cost the estate over $600,000 in tax liability. The Supreme Court held that no cause of action could have accrued during decedent's lifetime because damages were not sustained until her death triggered execution of the will. In effect, the Supreme Court held that decedent could not have asserted a claim for future potential liability before she died. Because no cause of action existed during decedent's life, § 8.01-25 directed that no cause of action survived her death, and the judgment for defendants was affirmed.
Patron - Armstrong

F HB2744

Garnishment; service of process on garnishee. Provides that the failure of the judgment creditor to effect service of process in accordance with the requirements of the garnishment statute shall be a defense to any proceedings by the judgment creditor to obtain a judgment against the garnishee for failure to garnish wages or other assets of the judgment debtor that are in the garnishee's possession. The bill provides that such defense may be asserted before or after the court enters judgment against a garnishee, and directs that the 21-day period during which a judgment remains within the breast of the court does not begin until the judgment creditor has served the garnishee with a copy of the judgment. The bill is intended to provide an explicit remedy where the judgment creditor fails to make proper service of process and a responsible representative of the garnishee accordingly does not realize that the garnishment has been instituted until the judgment creditor seeks to collect against the garnishee.
Patron - Gear

F HB2754

Limitation on recovery from public transportation operators. Limits damages in suits for personal injuries to, or death of, a person caused by a Virginia public transportation operator, that are not otherwise barred by the doctrine of immunity, to two million dollars. The bill defines "public transportation operator" as a political subdivision pursuant to § 15.2-2701 or any other entity, which also (i) provides transportation services to the general public on Virginia's roads; and (ii) is funded in whole or in part by public funds. The bill does not affect any defense of immunity applicable to a public transportation operator.
Patron - Weatherholtz

F HB2778

Evidence in products liability actions. Provides that evidence of similar incidents may be admissible as evidence or corroboration of a product defect.
Patron - Moran

F HB2815

Registered nurses operating automated external defibrillators; immunity from liability. Amends the Good Samaritan law to provide that any registered nurse who operates an automated external defibrillator in an emergency will not be liable for civil damages for any personal injury that results from any act or omission in the use of an automated external defibrillator in such emergency when an ordinary, reasonably prudent person other than a registered nurse would have so acted under the same or similar circumstances, unless such act or omission was the result of such registered nurse's gross negligence or willful misconduct.
Patron - Bolvin

F HB2830

Jury service. Exempts from jury service upon request any person who is solely responsible for the daily care of a person with a permanent disability, whether or not living in the disabled person's household, and whose performance of jury duty would cause substantial risk to the health of the person with a disability; provided, that such person is not regularly employed at a location other than the household of the person with a disability, and any mother of a breast-fed child who is responsible for the daily care of the child.
Patron - Baskerville

F SB739

Virginia Racial Profiling and Traffic Statistics Reporting Act. Requires the Superintendent of State Police to require each local and state police officer, during the course of his official duties, to collect certain information pertaining to traffic stops, including the race, ethnicity, color, age and gender of the alleged traffic offender, and to record the specific reason for the stop, whether the person was interrogated, charged or arrested, and whether a written citation or warning was issued. Police officers must also indicate the specific traffic violation committed. Police officers participating in the collection of such traffic data and information have been granted civil immunity for acts and omissions during the performance of their official duties, absent gross negligence or willful misconduct. The bill also requires the development of a statewide database for collecting, correlating, analyzing, interpreting, and reporting data and information generated through such traffic stop reports. The Superintendent must report the findings and recommendations annually to the Governor, the General Assembly, the Attorney General and each attorney for the Commonwealth. This act expires on July 1, 2007. Previously, this bill was a recommendation of the Joint Subcommittee Studying the Status and Needs of African American Males in the Commonwealth and the House Committee on Transportation's Special Subcommittee on Racial Profiling and Pretextual Traffic Stops.
Patron - Marsh

F SB770

Civil remedies; use of depositions. Allows motions for summary judgment to be based, in whole or in part, upon pleadings, depositions, answers to interrogatories, admissions on file, or affidavits.
Patron - Cuccinelli

F SB821

Rules of the Supreme Court; preservation by clerks of court. Eliminates the requirement that the clerks of court preserve the Rules of the Supreme Court in a special book. This bill is incorporated into SB 856.
Patron - Norment

F SB824

Statute of limitations; death of defendant. Changes "before" to "after" in the portion of the statute of limitations that describes what happens when the person against whom an action may be brought dies. Currently the Code states that if a person against whom a personal action may be brought dies before suit is filed, the papers may be amended to substitute the decedent's personal representative as party defendant.
Patron - Norment

F SB865

F SB986

Jury interrogatories. Allows the court to submit written interrogatories to the jury together with forms for a general verdict in certain cases where complex issues of fact must be decided in order to arrive at a verdict. The provision does not apply to personal injury or wrongful death negligence cases unless otherwise specifically authorized by law, comparative negligence applies or all parties agree. When answers to the interrogatories are inconsistent with the verdict, the court shall either order the jury to reconsider its answers and verdict or order a new trial.
Patron - Mims

F SB1184

Limiting awards for medical malpractice for emergency assistance. Limits awards for medical malpractice against physicians to $50,000 where injury or death results from ordinary negligence in the provision of emergency medical assistance necessitated by a traumatic injury demanding immediate medical attention.
Patron - Wagner

F SB1335

Punitive damages paid to Commonwealth. Requires that a defendant against whom a judgment for punitive damages has been entered pay 50 percent of any such judgment into the general fund of the state treasury.
Patron - Cuccinelli

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General Assembly>Division of Legislative Services>Publications>Session Summaries>2003>Civil Remedies and Procedure

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