Frequently Asked Questions About Medical Malpractice Cases in Virginia
If you think you are the victim of a medical malpractice case in Virginia, there are a number of variables to consider, and there are rules in place to protect both the healthcare provider and patient. Below are some frequently asked questions that patients may have as they consider filing a charge of medical malpractice.
How long do I have to file a medical malpractice case?
Typically, the statute of limitations in Virginia is two (2) years from the date of the injury resulting from the medical negligence. This means that, unless the case is filed within the two years, it will likely be dismissed. In cases involving wrongful death, the case must be filed within two years from the date of death.
There are exceptions to the two (2) year rule. For example, cases involving children under eight (8) years old who are injured by malpractice may be filed up until the child’s tenth (10th) birthday. Virginia also has a “continuing treatment rule,” which may extend the statute of limitations period if the patient continues to treat with the same health care provider on a continuous and substantially uninterrupted basis. In cases involving the failure to diagnose cancer, there may be a one year “discovery” rule that applies, which allows the patient up to one year from the date of the cancer diagnosis to file suit.
If the health care provider involved is employed by the Commonwealth of Virginia (such as some employees of the various teaching hospitals in Virginia – University of Virginia, Virginia Commonwealth University, Eastern Virginia Medical School), then the claim may need to be pursued under the Virginia Tort Claims Act. This Act has specific administrative requirements which must be followed, including the requirement of statutory notice within one (1) year from the date of the injury resulting from malpractice.
Because there are so many variables that control the deadline for filing a case, and because these matters are so complex, it is important to seek legal advice as soon as possible whenever you suspect that you or a loved one has been the victim of medical malpractice.
Is there a cap on recovery in medical malpractice cases in Virginia?
Yes. Like many states, Virginia has placed a cap on the amount of money that can be recovered in a medical malpractice case. This means that there is a maximum amount that can be received, regardless of the severity of the injury, the amount of the medical bills and other provable economic losses involved. Unfortunately, the cap applies even if a jury decides a greater amount constitutes fair compensation.
The Virginia medical malpractice cap that applies to a given case is determined by the date the error was committed. Starting July 1, 2012, the maximum amount that can be recovered will increase by $50,000 per year until July 2031. Currently, the cap is $2.2 million.
My medical care produced a very bad result. Does that mean I have a case?
Not necessarily. Any good doctor will tell you that there are no guarantees in medicine, and that a bad or even catastrophic result can occur even with the best of care. The threshold question in any potential medical malpractice case is whether the care involved complied with the standard of care required under the circumstances. If the care provided was appropriate, then there can be no claim for medical malpractice, even if there has been a horrible outcome.
Who has to prove what in a medical malpractice case?
The plaintiff, meaning the party bringing the lawsuit, has the burden of proving all of the elements of his or her case, including 1) whether malpractice occurred; 2) whether the malpractice caused the injury complained of; and 3) the extent of the injuries involved.
Where can I find information about my doctor?
The Virginia Board of Medicine has a free website where you can search by your doctor’s name. The site contains information about the doctor’s education and background, but also discloses whether the doctor has ever been disciplined by the state Board of Medicine or whether they have ever had a medical malpractice settlement or verdict against them in the past ten (10) years.
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Since 2004, Jonathan Petty has applied the deep knowledge and experience he gained working on the defense side of litigation to represent ordinary people injured by car accidents and truck accidents, medical malpractice, and defective products in Virginia. He has successfully tried medical malpractice and personal injury cases to verdict in courts throughout Virginia, and he has handled cases on behalf of both plaintiffs and defendants in state and federal courts across the country.