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They Grow Up Too Soon: Don’t Let Time Expire on Your Child’s Medical Malpractice Claim

Wednesday, March 27th, 2024

Article co-written by Matthew Broughton, Jared Tuck, and intern Nicholas Beck

In Virginia, a minor’s personal injury case typically has a statute of limitations of two years from the child’s 18th birthday. However, that deadline does not apply when the injury was caused by a medical provider’s negligence. If your child’s claim does not get filed before the expiration of the two-year statute of limitations, then his or her claim may be forever barred.

The statute of limitations for a minor’s medical malpractice case can often be confusing, but with the help of experienced Virginia medical malpractice attorneys, your child can hopefully receive the compensation he or she deserves.

The Rule

Virginia Code § 8.01-243.1 requires that medical malpractice lawsuits involving minors be brought “within two years of the date of the last act or omission giving rise to the cause of action except that if the minor was less than eight years of age at the time of the occurrence of the malpractice, he shall have until his tenth birthday to commence an action.” Unlike most personal injury cases involving children, lawsuits against negligent doctors, physicians, and other medical providers generally must be filed within 2 years or by the child’s 10th birthday, whichever is longer.

For example, when a 10-year-old child is injured in a car accident, the clock does not begin ticking until his 18th birthday. He then has 2 years from the start of the clock to file a claim in Virginia general district or circuit court.

In contrast, if your 10-year-old suffers an injury from the alleged negligence of a doctor or other healthcare provider, he has 2 years from the date of injury to file the claim, with limited exceptions. These exceptions include but are not limited to, failure to diagnose cases and injuries involving medical devices. For a full overview of personal injury statutes of limitations, including the limited exceptions to the general rules regarding statutes of limitations in personal injury actions, see here.

What You Can Do

You may be asking yourself, “How is my child supposed to sue his doctor before he can vote?” That’s a great question, and we’re here to help.

Be present for all doctor appointments, ask questions, and take notes.

For a child to file a lawsuit, it must be filed by his or her “next friend,” who is usually the child’s parent or guardian. Being in the room with your child and his or her doctor helps in preventing miscommunications and misunderstandings. Medical terminology can be confusing for adults, let alone children. If you or another responsible adult aren’t in the room to get the full picture and to ask questions, then it is harder to identify if something goes wrong.

If you don’t understand the provider’s medical terminology, then ASK!

This is especially important before your child receives a new medicine or undergoes a medical procedure. Medical providers are required by law to obtain informed consent, and minors cannot legally consent on their own. When you have a better understanding of the risks of a medicine or procedure, you can more easily identify if and when an unknown risk occurs.

Consult an experienced Virginia medical malpractice attorney.

As mentioned, medicine and medical terminology can be confusing all on its own. When you throw in the legal aspects of medical malpractice, an entirely new layer of confusion gets added. Only a team of experienced and knowledgeable medical negligence lawyers with the resources to take on hospitals, health systems, and other practices can appropriately handle the complex nature of medical malpractice cases.

Doctor with Patient

Unlike many personal injury cases, medical malpractice lawsuits require an in-depth review of your child’s medical records. Our team of Virginia medical malpractice attorneys has in-house medical specialists who can promptly and effectively evaluate your child’s case. Once your child’s case is evaluated by the medical specialists and Virginia medical malpractice attorneys, an expert medical provider will need to certify your claim before it can be filed in court, see here.

All of this takes time and money. Fortunately, Gentry Locke is an experienced medical malpractice law firm that has the resources to help your child receive the relief he or she deserves.

Conclusion

In sum, when you and your family are dealing with the trauma of medical malpractice to your child, it is understandably emotional and confusing. There is a lot to do within the two-year timeframe before your child’s case expires, and only a team of experienced Virginia medical malpractice attorneys with the appropriate resources can handle such a complex case. If you or your child have suffered from what may be medical malpractice, do not hesitate to contact us today!

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