In Virginia, as in every state, there are special rules for lawsuits involving a health care provider's medical negligence. Medical malpractice cases are complicated, and you'll almost certainly need an experienced attorney to help you through the process. But it can be helpful to understand the basics before you get started. This article will cover some of the most important rules applying to medical malpractice claims in Virginia, including:
A "statute of limitations" is a law that places a strict limit on the amount of time a plaintiff (the person filing the lawsuit) has to bring the case to court. There are different time limits for different types of cases. But if you miss the applicable filing deadline, your case will almost certainly be tossed out of court—which means you'll lose any right to compensation for your losses. That's why it's so important to understand and comply with the statute of limitations.
Many states have specific statutes of limitations for medical malpractice. In Virginia, though, the filing deadline for medical malpractice cases is the same as the deadline for all types of injury cases: two years from the date the injury occurred. But under what's called a "statute of repose," no medical malpractice lawsuit may be filed more than ten years after the medical error occurred. (The only exceptions are for minors and those who are legally incapacitated; see Va. Code § 8.01-229.)
There are a few situations that could change or extend the standard filing deadline described above, including:
When a "foreign object" was left in a patient's body or in cases of fraud. In a case where a health care provider has allegedly left a foreign object that has "no therapeutic or diagnostic" purpose—such as a surgical instrument or sponge, for example—in the patient's body or in a case where the health care provider prevents the patient from discovering the alleged malpractice by acting to "fraudulently conceal" it, the deadline is one year from the date the patient discovered or reasonably should have discovered the presence of the object or the concealment.
When the health care provider negligently failed to diagnose cancer. If a health care provider is negligent in failing to diagnose a "malignant tumor, cancer, or an intracranial, intraspinal, or spinal schwannoma," the filing deadline is one year after the patient receives an appropriate diagnosis from a health care provider.
When the injured person is a minor. In cases where the injured patient is a child younger than 18, the law provides two years from the date of the underlying medical error to file the lawsuit. But if the child was younger than eight years of age at the time of the malpractice, the deadline to file a claim is the child's tenth birthday.
As a part of the state's efforts in tort reform, Virginia has enacted a law stating that when you initiate a medical malpractice lawsuit and serve the defendant health care provider, you're certifying that you have contacted an expert witness who has agreed, in writing, that your case has merit.
In order to comply with the law's certification requirement, the expert witness must state in a written opinion that the defendant health care provider's conduct "deviated from the applicable standard of care" and that this deviation was a "proximate cause" of the plaintiff's injuries. The certification is unnecessary only in cases where the alleged negligence "clearly lies within the range of the jury's common knowledge and experience"—such as when, for example, a surgeon has agreed to perform two procedures and, in the end, performs only one. These cases are rare.
If you fail to get an expert witness's certification at the time you begin your medical malpractice lawsuit, you could be subject to sanctions from the court—and it could even lead to the dismissal of your case.
(Va. Code § 8.01-20.1 (2022).)
In another effort at tort reform, Virginia law "caps" (or limits) the amount of compensation ("damages") you can receive if your medical malpractice claim succeeds. In most states, damage caps in medical malpractice cases apply only to noneconomic damages—such as pain and suffering or emotional harm—and not to economic damages, such as the costs of medical care or lost income.
Virginia law, though, caps the total amount of damages that a plaintiff may receive, including economic damages—and it applies to all defendants in the case. So that means that even if your injuries will require expensive ongoing medical care, the damage cap still applies. And if your lawsuit includes separate claims against, for example, a hospital, a surgeon, and an anesthesiologist, the damage cap would be the same as if you had sued only one health care provider.
In Virginia, the damage caps vary depending on when the malpractice occurred, as follows:
For these rules, and for damage caps through 2031, see Va. Code § 8.01-581.15.