November 13, 2019

On October 7, 2019, a Virginia judge denied the defendant Orthopedics practice’s motion to vacate a $2.3 million default judgment in a Virginia medical malpractice case where a jury had awarded the plaintiff $2.5 million in compensatory damages, which was later reduced to $2.3 million pursuant to Virginia’s cap on damages in medical malpractice cases. The defendant’s resident agent had been timely served with the Virginia medical malpractice complaint and summons but had failed to forward the lawsuit to the defendant Orthopedics practice.

The Virginia medical malpractice lawsuit, which alleged that the plaintiff suffered entrapment of her peroneal nerve during surgery in 2017 to repair a torn ACL that may require knee replacement surgery in the future, was filed on June 5, 2019 and served on the resident agent of the defendant Orthopedics practice on June 6, 2019. The defendant’s response to the lawsuit was required to be filed within three weeks of service, but the defendant did not file a response because its resident agent failed to forward the complaint to the defendant.

On July 1, 2019, a judge determined that the defendant Orthopedics practice was in default and therefore the defendant would not receive further notices regarding the lawsuit. The plaintiff then dismissed her claims against the individual physicians who had been named as defendants in the Virginia medical malpractice lawsuit and only pursued her claims against the defendant Orthopedics practice.

On September 5, 2019, the plaintiff’s claims were presented to a Virginia jury which determined that the plaintiff was entitled to damages in the amount of $2.5 million plus interest running from the date of the negligent surgical treatment. The trial judge reduced the jury’s award, as required by Virginia’s cap on damages in medical malpractice cases, resulting in a default judgment being entered in the amount of $2.3 million against the defendant Orthopedics practice.

The defendant’s resident agent first advised the Orthopedics practice regarding the judgment entered against it on September 17, 2019. The Orthopedics practice subsequently filed a timely motion to vacate the default judgment, arguing that it did not receive actual notice of the lawsuit until after the default judgment had been entered and that the plaintiff would not be adversely affected if the default judgment was vacated. The plaintiff responded that the defendant’s resident agent had been properly and timely served and that vacating the default judgment would be unjust. The judge determined that the defendant Orthopedics practice failed to show good cause to vacate the default judgment and therefore affirmed the judgment entered in favor of the plaintiff.


If you or a loved one suffered a serious injury (or worse) as a result of medical negligence in Virginia or in another U.S. state, you should promptly find a Virginia medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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