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.
“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.
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.
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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