Virginia medical malpractice laws give the state a fairly plaintiff-friendly appearance, but there are a few major concessions to the tort reform movement. Damage caps, pre-suit screening panels and limited state victim compensation funds all play a role. The Virginia Medical Malpractice Act, Va. Code Ann. Sections 8.01-230 and 8.01-243(A) spells out these rules. Read on to learn more about medical malpractice law in the Commonwealth of Virginia.
Virginia law distinguishes between medical malpractice cases resulting in injury and those resulting in death, when setting the statute of limitations (which is a law that sets a time limit for going to court to get a lawsuit filed).
In cases involving injury due to medical malpractice, the statute of limitations is two years from the date of the injury (this is referred to as the “accrual date”). There is no discovery rule in Virginia, meaning that the statute of limitations clock begins ticking at the time of injury, regardless of when the injury was discovered. However, if a prospective plaintiff is continuously receiving treatment for the same injury, the statute of limitations is tolled (paused) as long as treatment continues. This can buy a plaintiff a considerable amount of time in which to file a suit.
In medical malpractice cases involving a wrongful death in Virginia, any lawsuit must be filed within two years of the date of the decedent’s death.
Parents of a child who has been injured through medical malpractice must bring an action for reimbursement of medical expenses within five years of the injury. Note that the five-year period applies only to cases in which parents are seeking medical expenses. In traditional medical malpractice cases -- seeking both expenses and damages -- parents must file a case on their child’s behalf within two years of the last negligent act. An exception to this rule is in the case of a child under the age of eight. In that instance, the case must be brought by the child’s tenth birthday. So if a child was injured at age six, parents effectively have four years to bring suit instead of two.
The Virginia Medical Malpractice Act created review panels to assess the merits of prospective medical malpractice claims. The panels are appointed at the request of either party, and the Virginia Supreme Court chooses the panelists. Each panel consists of two doctors, two lawyers and a judge. The judge acts as chairman of the panel and does not get a vote on the case. After reviewing the evidence, the panel provides an opinion on whether the health care provider violated the medical standard of care, and whether that violation was the legal cause of the patient's injury.
The findings of a review panel are not binding, but may be used as evidence if a suit is filed post-review. This means that the doctors and lawyers on the panel may be called in as witnesses. Such testimony could be damning in front of a jury.
Virginia law provides for pre-suit binding arbitration, with the caveat that the patient may withdraw from the arbitration agreement within 60 days of termination of relevant medical treatment.
Virginia requires experts to demonstrate knowledge of the defendant doctor’s specialty. They must also have active clinical practices in that specialty or a closely related specialty in the year prior to acting as an expert. Only in cases where even a layperson knows that malpractice has occurred -- such as foreign object cases or amputating the wrong limb -- is expert testimony not required.
Virginia caps the total amount of damages in a medical malpractice case at $2,000,000 for cases arising out of acts or omissions occurring on or after July 1, 2008. The caps are slightly lower for cases arising out of incidents occurring before that time. This cap is interesting in the sense that it limits total damages -- economic, non-economic and punitive -- instead of focusing on non-economic damages, as is the case in most states. This means that the total amount a plaintiff can recover, regardless of the continuing medical costs relating to the injury or past medical expenses -- are capped. Punitive damages are strictly limited to $350,000 in Virginia.
Virginia doesn’t have a general patient compensation fund, but has created one specific to birth-related medical malpractice and neurological injuries. The fund covers infants who are permanently disabled as the result of damage to the brain or spine caused by oxygen deprivation or mechanical injury during labor, delivery or resuscitation. The fund is akin to a no-fault program, and is the exclusive remedy for parents of children injured in the manner outlined by the law. Hospitals and physicians must pay an assessment to participate in the program. The injured children are provided with lifetime medical expense reimbursement, as well as a payment of one-half the prevailing weekly wage starting at the age of 18. Because the program is voluntary, many hospitals and physicians choose not to participate.
Virginia is a contributory negligence state, meaning that a plaintiff who contributed to his or her own injury may be barred from recovering damages. This means that a plaintiff can be denied recovery if they act in a negligent manner during treatment, such as by constantly missing treatment appointments or by failing to follow-up care instructions.
Virginia is a joint and several liability state, meaning that when there is more than one defendant in a medical malpractice case, they can each be held legally responsible for all of the plaintiff's damages; degree of fault is irrelevant.