Nuong Nguyen v. Thuy N. Ho

This matter is before the Court on Ho and Evergreen OB Gyn’s Motion to Dismiss. Upon consideration of counsel’s arguments and the briefs submitted, the Court sustains the motion.

Effective July 1, 1993, § 8.01-581.2(A) was amended and § 8.01-581.9 repealed. These statutory changes eliminated the notice of claim requirement and the related tolling provisions applicable in medical malpractice actions. The issue at bar is whether the Notice of Claim filed by the defendant prior to July 1, 1993, entitles Nguyen to proceed under the statutory provisions in effect at the time her cause of action accrued.

Neither the former § 8.01-581.2 nor § 8.01-581.9 conferred substantive rights, duties, or obligations upon the parties. They delineated the required procedures for attaining a remedy, and therefore, their respective amendment and repeal apply to causes of action which accrued prior to July 1, 1993. See Morrison v. Bestler, 239 Va. 166, 387 S.E.2d 753 (1990); and Shiflet v. Eller, 228 Va. 115, 120, 319 S.E.2d 750 (1984). Nguyen was afforded a reasonable opportunity to preserve her cause of action. Duffy v. Hartsock, 187 Va. 406 (1948). All parties were on notice of the statutory changes to take effect July 1, 1993. Accepting the facts as pleaded in the Motion for Judgment to be true for the purpose of this ruling, Nguyen filed her Notice of Claim prior to the running of the two-year limitations period. Subsequent to July 1, 1993, Nguyen had the time remaining in the statutory period within which to file suit.