Forever Barred? The Statute of Limitations and its Limited Exceptions When Bringing a Medical Malpractice Lawsuit

Wednesday, January 31st, 2024

Navigating how to bring a personal injury claim in Virginia can be very confusing without experienced medical malpractice attorneys. Adding to that confusion, bringing a lawsuit for an injury caused by medical negligence, or medical malpractice, by a healthcare provider, adds additional complexities. Some requirements are so important that failure to comply with them can derail a lawsuit before it even begins. One such requirement is that you must bring your lawsuit within the time allowed under Virginia law, or it will be forever barred. This is known as a statute of limitations.

The General Rule

What is a statute of limitations? A statute of limitations is a defined period of time within which you must file a lawsuit after you suffer an injury. This limitation period is expressed in the Code of Virginia.

Why does it matter what statute of limitations applies to your potential lawsuit against a healthcare provider? Well, if you don’t bring a lawsuit within the time that the code requires, you can be permanently barred from ever bringing it. It is heartbreaking as a lawyer when you get a call from a potential client who has suffered real malpractice, but it occurred so long ago that any lawsuit would be barred by the statute of limitations.

In Virginia, the statute of limitations for bringing a personal injury lawsuit, which includes a lawsuit against a healthcare provider for medical negligence (medical malpractice), is two (2) years. This limitation period is set out in Va. Code § 8.01-243(A), which states: “[U]nless otherwise provided in this section or by other statute, every action for personal injuries, whatever the theory of recovery, and every action for damages resulting from fraud, shall be brought within two years after the cause of action accrues.”

Similarly, a medical negligence claim that results in a death, also known as a wrongful death action, has a statute of limitations of two (2) years from the date of the person’s death. This is also established by Virginia law in Va. Code § 8.04-244.

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Importantly, the clock starts running on your time to bring a lawsuit at the time the “cause of action accrues.” This is a fancy way of saying that in most cases, your countdown starts from the time the negligence (malpractice) occurs. Generally, this accrual is the moment when the malpractice first occurred (for a personal injury action) or from the date of the person’s death (in a wrongful death action). Virginia, unlike some states, does not have a general rule that allows an injured party to wait until their injury is discovered before staring the countdown clock.

The (limited) Exceptions that Prove the Rule

Despite this, Virginia does have certain instances where the time to file your claim, the statute of limitations, is extended. Some of those ways are as established by statute in Va. Code § 8.01-243. Additionally, there are other doctrines/rules that have been established by the Virginia Courts that can potentially extend the amount of time you have to bring a lawsuit. Examples of where the statute of limitations for medical malpractice can be extended under Virginia law include:

  • If the malpractice occurs when the patient was a minor.

It is very important that you note that this applies only to medical negligence (malpractice) claims and not other types of personal injuries for a minor (e.g., injuries suffered in a motor vehicle collision). For example, if a minor is under the age of 8, they have until the age of 10 to bring the action (by and through their “next friend,” which is a topic outside the scope of this article).  Code § 8.01-243.1.

  • If a foreign object “having no therapeutic of diagnostic effect” is left in the body.

Examples that our firm have seen that fall under this exception include a surgeon leaving a surgical sponge in a patient’s body following a procedure and a surgeon leaving an instrument inside of the body. If this occurs, a person has one (1) year from the date the foreign object was found, or should have been found, to bring a lawsuit. Va. Code § 8.01-243(C)(1).

  • In cases where “fraud, concealment, or intentional misrepresentation prevented discovery of the injury within the two-year period.”

For example, fraud or concealment can include a healthcare provider who hides the malpractice from you, or altered your medical record, and it was impossible for you to discover it until you sought additional treatment. (This will tie into another extension that will be discussed later). Again, if this occurs, the person has one (1) year to bring a lawsuit after the injury is discovered, or should have been discovered. Va. Code § 8.01-243(C)(2).

  • In instances where cancer is not timely and properly diagnosed.

The law states that where a healthcare provider failed to diagnose “a malignant tumor, cancer, or an intracranial, intraspinal, or spinal scwannoma…” the statute of limitations is one year from the date the cancer is discovered, or should have been discovered. Code § 8.01-243(C)(3).

As mentioned earlier, there is at least one other way in which the time to bring your medical malpractice lawsuit can be extended, this is known as the “continuing treatment rule.” Unlike the other ways mentioned in this article, this rule is not set out in any Virginia code book, but was established by the Supreme Court of Virginia more than forty (40) years ago in Farley v. Goode, 219, Va. 969 (1979). In Farley, The Supreme Court of Virginia held, essentially, “[w]hen malpractice is claimed to have occurred during a continuous and substantially uninterrupted course of examination and treatment…the cause of action for that malpractice accrues, and the statute of limitations commences to run when the improper course of examination, and treatment if any, for the particular malady terminates.” In other words, if the treatment is with the same physician, for the same condition, and the treatment is “continuous and substantially uninterrupted,” then the statute of limitations can be extended.

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However, people need to also be aware that there is a statute of repose that applies to all medical negligence (malpractice) suits in Virginia. Even if the malpractice falls under one of the covered areas or doctrines, it may be forever barred if you do not file suit within ten (10) years from the date of the malpractice.  Va. Code § 8.01-243(C)(3).

As you can see, it is essential that you speak with one of our personal injury lawyers in Roanoke, Virginia who understands all of the potential pitfalls, traps, and nuances related to filing and litigating a medical malpractice claim. Failure to understand personal injury law in Virginia and appreciate one of these nuances can be disastrous for your potential claim and could leave you forever barred from the courthouse.

Contact us to speak with a Virginia personal injury lawyer.

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Do I Need an Autopsy for a Medical Malpractice/Wrongful Death Lawsuit?

Wednesday, January 17th, 2024

Our firm is often asked whether it is necessary to have an autopsy performed on your family member if he or she passes away, and you suspect that medical malpractice was the cause of your loved one’s death. The short answer is, that it is not a legal requirement in Virginia; however, wrongful death attorneys will agree that it is highly recommended. A wrongful death claim based upon medical malpractice is a claim that is brought when a family member dies as a result of the negligence of a healthcare provider.

To have a meritorious medical malpractice action in Virginia, you must be able to successfully prove that one or more of the healthcare providers who treated your loved one committed “malpractice” and that that malpractice was a “proximate cause” of your loved one’s death.  

Proximate Cause

“Malpractice” is defined as the failure of a healthcare provider to act with a degree of skill and diligence of a reasonably prudent healthcare provider. The mere fact that your loved one died, does not by itself show malpractice. A “proximate cause” is defined as a cause which in natural and continuous sequence produces the injury and damage (death) and without which the death would not have occurred.

An autopsy, which would be performed after your loved one’s death, can be invaluable in proving not only that malpractice was the cause of death, but also would help establish proximate cause. It is the burden of the person bringing the lawsuit to prove that there was not only malpractice involved in your loved one’s care but also that the malpractice was the proximate cause of his or her death. The purpose of an autopsy is to determine the most likely cause of death which will also include examining the major contributing factors to the death and whether or not that death was a natural or accidental death or the direct result of medical negligence. Sometimes, the lack of an autopsy would prevent an attorney from having the necessary evidence to file and successfully pursue a medical malpractice case.

Avenues of Approach

When a family member suspects that there might be medical malpractice involved in a loved one’s death, there are several avenues that can be pursued to arrange for an autopsy. If your loved one is hospitalized, the doctor or in-house pathologist for the hospital can perform the autopsy. There could be bias involved in this “in-house” autopsy as the hospital employee performing the autopsy might be biased in favor of the healthcare institution that is responsible for your loved one’s death.

Other options for having an autopsy performed would be to hire a private pathologist, or have the local coroner or medical examiner perform the autopsy. If your family is contemplating a wrongful death suit based upon malpractice, it would be wise to begin investigating these options prior to your loved one’s death if his or her death is imminent.  

Making these arrangements once your loved one has expired, is often difficult. Experienced medical malpractice attorneys can help you investigate and decide whether the hospital would be the appropriate institution to perform an autopsy, whether the medical examiner or coroner would be willing to perform the autopsy or whether a private pathologist would be the best avenue. If a private pathologist would be the best option, an experienced medical malpractice attorney can make arrangements to engage the services of a qualified private pathologist.

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Our wrongful death attorneys in Virginia can help you make all of these decisions. We also can help arrange a private autopsy if that is determined to be necessary.

If an autopsy has already been performed, we can review the autopsy report and give you our opinion of whether this would be an economically viable wrongful death case that we believe would be a potentially successful case that would result in a settlement or jury verdict.

In Virginia, there is a two-year statute of limitations for the filing of all wrongful death cases. Therefore, you would have two years from the death of your loved one to file a wrongful death case or it would be forever barred. In a wrongful death case based on medical malpractice, even though you have two years to file a lawsuit, we highly recommend that a potential wrongful death case should be investigated immediately after your loved one’s death to arrange for an autopsy and examine the medical evidence while it is still fresh.

If you have lost a family member as a result of medical malpractice, please contact us or call 540.983.9300. Our initial consultation is always free and confidential. We have a team of experienced Virginia wrongful death attorneys who would be more than happy to assist you.

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