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