Medical Malpractice Law

Sean P. Byrne *
Lauran G. Stimac **


Health care reform took center stage on a national level over the past year. Despite suggestions that medical liability reform might be incorporated into the federal legislation, in the end, it was not. Similarly, this year saw few legislative developments at the state level in medical malpractice law, as the Virginia General Assembly focused its energy primarily on the budget shortfall and other issues. There were, however, several health care legislative and case developments of note which will impact the medical liability landscape in the coming years. Board of Medicine activity and medical malpractice trial results of interest are also highlighted as we look back at the year‘s noteworthy legal developments in Virginia medical malpractice law.

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*Director, Hancock, Daniel, Johnson & Nagle, P.C., Richmond, Virginia. J.D., 1997, University of Richmond School of Law; B.A., 1993, University of Richmond. Mr. Byrne‘s practice concentrates on medical malpractice defense and health care risk management. He is also an Assistant Adjunct Professor at the University of Richmond School of Law.
**Associate, Hancock, Daniel, Johnson & Nagle, P.C., Richmond, Virginia. J.D., 2007, University of Richmond School of Law; B.A., 2004, University of Richmond. Mrs. Stimac‘s practice also concentrates on medical malpractice defense and health care risk management.

Professional Responsibility

James M. McCauley *


The growing ease of interstate and international travel, the advancements in electronic communications and the resulting globalization of economic activity have made it ever more necessary for lawyers to expand the geographic scope of their practices. Both law firms and their clients increasingly conduct business on a nationwide and even worldwide scale. As the Commission on Multijurisdictional Practice recognized in 2002, “the geographic scope of a lawyer‘s practice must be adequate to enable the lawyer to serve the legal needs of clients in a national and global economy.” Thus lawyers need to be more able than previously to practice in multiple jurisdictions. To this end, the Supreme Court of Virginia adopted new provisions to permit limited practice by foreign lawyers in the Commonwealth. These provisions included the adoption of a foreign legal consultant rule for lawyers admitted to practice in a foreign nation and a temporary practice rule for lawyers admitted in a foreign country or in a territory or state in the United States other than Virginia.


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*Ethics Counsel, Virginia State Bar. J.D., 1982, University of Richmond School of Law; B.A., 1978, James Madison University.


Craig D. Bell *


The 2010 General Assembly amended Virginia Code section 58.1-301, which mandates conformity of terms to the Internal Revenue Code, to advance Virginia?s fixed date of conformity from December 31, 2008 to January 22, 2010. Virginia continues, however, to disallow the federal bonus depreciation deductions except for any bonus depreciation allowed under I.R.C. § 168(n), which is designed to benefit qualified disaster assistance property and any five-year carryback of federal net operating loss deductions. The new date of conformity enables the state to adopt most of the provisions of the American Recovery and Reinvestment Act of 2009 for taxable year 2009, including the increase in the federal earned income tax credit, the itemized deduction for sales taxes on a new car, the equalization of transit and parking benefits,  and the expensing of certain depreciable business assets.

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* Partner, McGuireWoods L.L.P., Richmond, Virginia. LL.M. in Taxation, 1986, Marshall-Wythe School of Law, College of William & Mary; J.D., 1983, State University of New York at Buffalo; M.B.A., 1980, Syracuse University; B.S., 1979, Syracuse University. Mr. Bell practices primarily in the areas of state and local taxation, and civil and criminal tax litigation. He is a Fellow of the American College of Tax Counsel, a Fellow of the Virginia Law Foundation, a Barrister of the J. Edgar Murdock Inn of Court (U.S. Tax Court), an adjunct professor of tax law at the College of William & Mary School of Law, and a past chair of both the Tax and Military Law Sections of the Virginia State Bar and the Tax Section of the Virginia Bar Association. Mr. Bell is an Emeritus Director of The Community Tax Law Project, a nonprofit pro bono provider of tax law services for the working poor, and is its recipient of the Lifetime Pro Bono Achievement Award for his pro bono work in representing hundreds of Virginians before the IRS and in U.S. Tax Court and federal district court, as well as developing and training many lawyers in the area of federal tax law to expand pro bono tax representation for low income taxpayers.

Wills, Trusts, and Estates

J. Rodney Johnson *


In response to a multi-year project of the Virginia Bar Association‘s (“VBA’s”) Section on Wills, Trusts, and Estates, the 2009 General Assembly enacted the Virginia Uniform Power of Attorney Act (“UPOAA”) in order to significantly update and clarify existing Virginia law related to durable powers of attorney and to make the same more uniform with that found in other jurisdictions. Thereafter, the Chair of the VBA‘s Drafting Committee, Andrew H. Hook, and his associate, Lisa V. Johnson, presented a thorough overview of this legislation in this publication‘s 2009 Annual Survey of Virginia Law.  As the 2009 passage of the UPOAA was made subject to a reenactment clause, this legislation was also introduced into and enacted by the 2010 Session. Although the 2010 UPOAA is largely the same as the 2009 version, it does contain some important changes. The present writer is indebted to Mr. Hook and Ms. Johnson, the authors of the 2009 article, for contributing the following text to explain these 2010 changes in the context of their original 2009 article.

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*Professor of Law, Emeritus, University of Richmond School of Law.