Which State’s Laws Apply In A Medical Malpractice Case

Among recent court cases was this case about which state’s laws apply to a medical malpractice lawsuit. When all of the parties are from the same state in which an event occurred, there is not a question of which state’s laws apply. However, when the parties are from different states and/or the event takes place in two or more states, there is always a question as to which state’s laws are applicable.

What Happened

Jill Willey is a resident of West Virginia. She sought medical treatment from Dr. Samuel J. Bracken, Jr. who is licensed in both West Virginia and Ohio. On December 15, 2004, Dr. Bracken performed a laparoscopic tubal ligation on Mrs. Willey, on an outpatient basis at a hospital in Ohio. Mrs. Willey returned home to West Virginia. Four days later, on December 19, 2004, Mrs. Willey experienced severe abdominal pain and sought treatment in the emergency room at a hospital in West Virginia. On December 20, 2004, Mrs. Willey received emergency surgery for a perforation of the sigmoid colon in the area in which the tubal ligation had been performed. The emergency surgery included a colostomy which was later reversed by another surgery.

In their depositions, two doctors testified that it appeared that during the laparoscopic tubal ligation performed by Dr. Bracken, Mrs. Willey sustained a partial injury or cautery burn to her sigmoid colon that perforated some time later after the surgery. In other words, during the initial surgery in Ohio, the stage was set for the injury which actually occurred in West Virginia.

On December 14, 2006, the Willeys filed suit against Dr. Bracken in West Virginia alleging medical negligence. Dr. Bracken filed a motion asking the Court (1) to rule that the laws of Ohio applied and (2) to dismiss the case because Ohio has a one year statute of limitations. The trial Court certified the question to the Supreme Court of West Virginia for a determination.

Court Decision

The West Virginia Supreme Court found that the record in this case indicates that Mrs. Willey had to undergo corrective surgery in West Virginia as a direct result of the alleged negligence of Dr. Bracken. And that by virtue of the emergency surgeries to correct her ruptured sigmoid colon, Mrs. Willey was subjected to additional invasions of her body, which caused her to sustain pain, suffering, and economic loss in West Virginia that was directly caused by the alleged negligence of Dr. Bracken in Ohio.

The Court noted that in a similar, but distinctly different, case, an injured patient was permitted to sue a doctor for injuries relative to a corrective surgery performed in West Virginia. The Court concluded that while Mrs. Willey could clearly sue for injuries relative to the emergency and corrective surgeries performed in West Virginia, public policy demands that she be allowed to seek full redress, not partial redress, in a West Virginia court. Therefore, the laws of West
Virginia applied to the lawsuit and Mrs. Willey could seek compensation for all of her injuries from the initial surgery in Ohio.


While the Supreme Court of a different state might reach a different decision, it would appear that when the initial action or surgery was in one state, but the injury occurred while in a second state and additional surgeries were required and performed in the second state, the laws of the second state will apply. In other words, when only the initial action happened in one state, but the injury and everything else happened in a second state, the laws of the second state will apply.

For details, see JILL WILLEY, ET AL, V. SAMUEL J. BRACKEN, JR., M.D. October 14, 2010

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Pro Se (Representing Himself) Mistakes

Among recent court cases was this case about a non-lawyer who proceeded pro se and represented himself and then asked another person to sign court documents for him. He made two big mistakes.

What Happened

On November 12, 2008, Aguilera filed a lawsuit against Christian seeking damages for personal injuries sustained in an automobile collision. Aguilera did not personally sign the Complaint which initiated the lawsuit, but asked his neighbor to sign it for him. The neighbor who is a lawyer, but not licensed in Virginia, signed Aguilera’s name on the Complaint and placed her initials directly above the signature.

Christian filed an Answer and Request For Admissions requesting that Aguilera admit that he did not personally sign the Complaint. Aguilera admitted that he did not personally sign the Complaint. Upon motion by Christian, the trial court granted summary judgment in favor of Christian and dismissed the case. Aguilera, who had retained a lawyer by that time, appealed the trial court’s decision.

Court Decision

Virginia law is clear. Every pleading, such as a Complaint, must be signed by at least one attorney of record when a party is represented by an attorney. When a party, such as Aguilera, is proceeding pro se without a licensed attorney and representing himself, then he must sign each pleading, such as the Complaint. There is nothing in the law that permits a person other than a licensed attorney to sign a pleading on behalf of an unrepresented party.

The Court affirmed the trial court’s dismissal of Aguilera’s case.


Aguilera made two big mistakes. First, while it is permissible for a person to represent himself, he needs to know both the law and court rules. Apparently, Aguilera did not know either. Second, if a person is going to proceed pro se and represent himself, then that person needs to personally sign all court documents. Aguilera made the mistake of asking someone else to sign for him.

AGUILERA v. CHRISTIAN September 16, 2010

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