How Should A Minor Be Named As A Plaintiff?

I recently wrote about the case of Sarah Gilbert, and how her medical malpractice case arising from a spine injury was dismissed.  It was dismissed because the trial court found that Gilbert was not properly named as the plaintiff in the lawsuit.  So, what should happen when representing a minor in court?  I've filed cases for minors before.  Virginia has a statute that specifically explains how a lawyer should name the minor plaintiff in the complaint.  It is Virginia Code Section 8.01-8.  Right below that statute are case "annotations," which are references to court cases where Virginia courts have interpreted the statute.  Using my legal research tool, Lexis Advance, the very first case in the annotations is Herndon v. St. Mary's Hospital, Inc., a 2003 case in which the Supreme Court of Virginia explained how to name a minor in a personal injury lawsuit.  The minor should be named as the plaintiff by her next friend, not the other way around.  What I find interesting is that, procedurally, the Herndon case is virtually identical to Gilbert's case.  Like Gilbert's case, Herndon was a medical malpractice case being filed for a minor.  Like Gilbert's case, the lawyer who filed the Herndon's case did so in the parents' names as "next friends" of the minor child as opposed to in the minor's name.  In Herndon, the Supreme Court found that, under Va. Code Section 8.01-8, a minor sues in their own name "by their next friend," not the other way around, and agreed with the trial court's decision to dismiss the Herndon's case.  Significantly, the Herndon case was published by the Supreme Court of Virginia in 2003, three years before Gilbert filed her original complaint.

Kevin W. Mottley
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Kevin W. Mottley, Richmond, VA trial lawyer dedicated to handling brain and other serious injury claims
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