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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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The Anatomy of a Virginia Medical Malpractice Claim: Proving Your Case

Thursday, December 14th, 2023

Medical Malpractice attorneys, or “med mal” attorneys, help distinguish whether a cause of action is specifically due to Medical Malpractice or whether the action be considered general negligence. The difference matters.

This is because, for better or worse, Virginia law imposes numerous restrictions, limitations, and prerequisites to maintaining a medical malpractice action that are not present in other personal injury actions. Failure to comply with some of these requirements can be fatal to your case. For example, if a plaintiff fails to comply with the myriad of requirements to bring a medical malpractice action, including the requirement for, the case could be over before it really even starts. See Va. Code §§ 8.01-20.1, -50.1. Remember, it is crucial to seek guidance from experienced medical malpractice attorneys in such cases for the best possible outcome.

Thankfully, the Virginia Medical Malpractice Act provides much more specificity on what is “malpractice,” and what is not.

1. The Medical Malpractice Act

The Medical Malpractice Act specifically defines certain terms that determine whether your case falls under the Act, such as “malpractice,” “health care,” “health care provider,” and “patient.”

“‘Malpractice’ means any tort action or breach of contract action for personal injuries or wrongful death, based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient.” Va. Code § 8.01-581.2 (emphasis added).

This definition highlights the first nuance of the medical malpractice action.

“‘Health Care’ means any act, professional services in nursing homes, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical diagnosis, care, treatment or confinement.” Id.

“Health Care Provider” is defined in the manner one would expect. The Medical Malpractice Act includes a long list of persons, entities, and professions that qualify. For example, hospitals, doctors, nurses, dentists, pharmacists, are all “health care providers.” Id. Additionally, entities whose partners or members are “Health Care Providers” also fall under the definition. Id.

Similarly, “patient” has its expected definition. A “patient” is “any natural person who receives or should have received health care from a licensed health care provider except those persons who are given health care in an emergency situation which exempts the health care provider from liability for his emergency services in accordance with § 8.01-225 or 44-146.23.” Id. The exception mentioned in this definition is interesting, but outside the scope of the current article.

If you are a “patient” who is seeking a lawyer for doctor negligence or  alleged wrongs that occurred during the provision of “health care,” then you are in the world of medical “malpractice.” This is true whether your case sounds in tort or breach of contract. As such, you must comply with the provisions of the Medical Malpractice Act.

But recognizing that your case falls under the Medical Malpractice Act is just the first step. You still need to actually prove your case for malpractice. As most medical malpractice claims will sound in negligence, the elements as they relate to that type of action will be discussed next.

2. Elements of the Medical Negligence Claim

In normal, run-or-the-mill negligence cases a plaintiff must establish that: (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and such breach was (3) a proximate cause of the plaintiff’s (4) damages. See, e.g., Atrium Unit Owners Ass’n v. King, 266 Va. 288 (2003). Each of these elements come with centuries of case law that develop them as concepts. In short, the elements come with a lot of baggage. The elements of a medical malpractice claim are merely a variation of the classic elements of negligence.

In a medical malpractice case, demonstrating the requirement of a legal duty is relatively simple. “[A] health care provider owes a duty of reasonable care to the patient.” Fairfax Hospital v. Patricia Curtis, 254 Va. 437, 442 (1997). The scope of that duty, however, is more nuanced.

A doctor has a duty to use the degree of skill and diligence in the care and treatment of his patient that a reasonably prudent doctor in the same field of practice or specialty in this State would have used under the circumstances of this case. This is referred to as the standard of care.

Virginia Model Jury Instructions – Civil No. 35.000 (emphasis added); see also Va. Code § 8.01-581.20 (“[T]he standard of care by which the acts or omissions are to be judged shall be that degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth. . . .”).

This standard of care is statewide, meaning that the same standard of care applies to a health care provider in rural southwest Virginia as would be applied in the affluent suburbs of Washington D.C. There is an exception to this statewide standard:

The standard of care in the locality or in similar localities in which the alleged act or omission occurred shall be applied if any party shall prove by a preponderance of the evidence that the health care services and health care facilities available in the locality and the customary practices in such locality or similar localities give rise to a standard of care which is more appropriate than a statewide standard.

Va. Code § 8.01-581.20. Generally, however, the standard applied will be consistent statewide.

After establishing what the standard of care required, “the plaintiff must prove not only that the defendant violated the applicable standard of care and was therefore negligent, but also that the defendant’s negligent acts were a proximate cause of the injury.” Howell v. Sobhan, 278 Va. 278, 283 (2009) (emphasis added).

Therefore, plaintiff or medical negligence lawyers must prove that the defendant health care provider did something the standard of care required her to refrain from or did not do something that the standard of care mandated. As discussed below, this will require expert testimony.

A violation of the standard of care also must be the cause of the plaintiff’s claimed damages. Proximate cause is an oft recited, but difficult to concisely define word. According to the Virginia Model Jury Instructions, “A proximate cause of [damages] is a cause that, in natural and continuous sequence, produces the [damage]. It is a cause without which the [damages] would not have occurred.” Virginia Model Jury Instructions – Civil No. 5.000. There can be more than one “proximate cause” of an injury or other damage. See Virginia Model Jury Instructions – Civil No. 5.005.

Items of “damage” that can be caused by a medical negligence, and therefore recovered in a medical malpractice action, are numerous. In the personal injury context, they can include bodily injuries, pain and suffering, humiliation and embarrassment, inconvenience, medical expenses, lost wages, etc. See Virginia Model Jury Instructions – Civil No. 9.000.

In the wrongful death context, which is applicable where the medical negligence leads to the death of the patient, the patient’s beneficiaries can recover for damages such as sorry, mental anguish, loss of companionship, lost support form income, expenses for the care and treatment for the deceased patient, funeral expenses, etc. See Va. Code § 8.01-52.

This provides a high-level overview of what needs to be proven in a medical negligence action, but the Medical Malpractice Act also provides guidance on how such facts need to be proven. For that, expert testimony will almost certainly be required.

3. Requirement of Expert Testimony

“In almost all medical malpractice cases, expert testimony is necessary to assist a jury in determining a health care provider’s appropriate standard of care and whether there has been a deviation from that standard.” Dickerson v. Fatehi, 253 Va. 324, 327 (1997). It is only in rare circumstances that the “alleged negligent acts or omissions clearly lie within the range of a jury’s common knowledge and experience, [and] expert testimony is unnecessary. Id.; see also Virginia Model Jury Instructions – Civil No. 35.050 (“You must determine the standard of care that was required of the defendant by considering only the expert testimony on that subject.”).

“A health care provider who is licensed to practice in Virginia shall be presumed to know the statewide standard of care in the specialty or field of practice in which he is qualified and certified.” Va. Code § 8.01-581.20. A witness who is familiar with the statewide standard of care can testify as to that standard despite not actively practicing in the Commonwealth. Id. The expert witness must, however, demonstrate that he has knowledge of the standards applicable to the defendant’s specialty and what conduct would satisfy that standard. Id. Further, the expert must have been in active clinical practice in the defendant’s specialty or a related specialty, within one year of the date of the alleged medical negligence. Id.

As can be seen, the technical nature of adequately pleading and prosecuting a claim for medical malpractice is filled with pitfalls. Potential medical malpractice plaintiffs would be wise to consult with medical malpractice attorneys or medical malpractice law firm who is familiar with all of the requirements to bring a medical malpractice action to help guide them through the litigation process. There is no need to go through the rigors of this process alone, especially after you have been injured by an act of medical negligence or suffered the loss of a loved one at the hands of a negligent healthcare provider. Seeking assistance from experienced hospital malpractice lawyers can provide the necessary expertise and support in navigating these complex cases.

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