11103320D
SENATE BILL NO. 1330
Offered January 12, 2011
Prefiled January 12, 2011
A BILL to amend and reenact § 8.01-20.1 of the Code of
Virginia, relating to medical malpractice actions.
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Patron-- Herring
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Referred to Committee for Courts of Justice
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Be it enacted by the General Assembly of Virginia:
1. That § 8.01-20.1 of the Code of Virginia is amended
and reenacted as follows:
§ 8.01-20.1. Certification of expert witness opinion at time
of service of process.
Every motion for judgment complaint, counter claim, or
third party claim in a medical malpractice action, at the time the plaintiff
requests service of process upon a defendant, or requests a defendant to accept
service of process, shall be deemed a certification that the plaintiff has
obtained from an expert witness whom the plaintiff reasonably believes would
qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a
written opinion signed by the expert witness that, 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. This certification is not necessary if
the plaintiff, in good faith, alleges a medical malpractice action that asserts
a theory of liability where expert testimony is unnecessary because the alleged
act of negligence clearly lies within the range of the jury's common knowledge
and experience.
The certifying expert shall not be required to be an expert
witness expected to testify at trial nor shall any defendant be entitled to
discover the identity or qualifications of the certifying expert or the nature
of the certifying expert's opinions. Should the certifying expert be identified
as an expert expected to testify at trial, the opinions and bases therefor
shall be discoverable pursuant to Rule 4:1 of the Rules of Supreme Court of
Virginia with the exception of the expert's status as a certifying expert.
Upon written request of any defendant, the plaintiff shall,
within 10 business 21 days after receipt of such
request, provide the defendant with a certification form that affirms that the
plaintiff had obtained the necessary certifying expert opinion at the time
service was requested or affirms that the plaintiff did not need to obtain a
certifying expert witness opinion. This certification
form is not necessary if the complaint, counter claim, or third party claim
contains the affirmation as described herein. If the
plaintiff did not obtain a necessary certifying expert opinion at the time the
plaintiff requested service of process on a defendant as required under this
section, the court shall impose sanctions according to the provisions of §
8.01-271.1 and may dismiss the case with prejudice.
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