What is the Statute of Limitations in Virginia for Medical Malpractice?

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If you were harmed due to medical malpractice, you likely have many questions and want to know what you should do next.

What types of cases qualify for medical malpractice?

How long do you have to file a medical malpractice lawsuit in Virginia?

To learn more about medical malpractice and how long you have to file your particular lawsuit, contact a Richmond medical malpractice lawyer today.

At Lantz & Robins, P.C., our trial lawyers have over 40 years of combined experience helping clients just like you get the compensation they deserve.

We have handled numerous Virginia medical malpractice lawsuits.

We understand how complex medical malpractice cases are.

Let us put our knowledge and skills to work for you. 

How Long Do You Have to File a Medical Malpractice Lawsuit in Virginia?

The amount of time you have to file a lawsuit is known as the statute of limitations.

This deadline varies based on the type of claim you are presenting and the circumstances surrounding your case.

The deadline for personal injury cases in Virginia is two years from the date of the accident.

Medical malpractice is somewhat different. In most cases, you have up to two years from the date of injury to file a lawsuit.

If your family member passed away from medical malpractice, you have two years from the date of their death.

If the victim is a child, the medical malpractice statute of limitations for a minor in Virginia can be confusing.

There are different rules in place if the child is under eight years old—you must bring an action before their 10th birthday.

That means if your child is five years old at the time, you could have up to five years.

If they are close to turning eight, you would have only two years. If your minor child is 10 years or older, you have two years to bring an action.

Are There Exceptions to the Statute of Limitations for Medical Malpractice in Virginia?

There are limited circumstances that could change your filing deadline. 

Continuing Treatment Rule

The continuing treatment rule says that if you’ve had substantially uninterrupted treatment for the same condition, your time to file a claim would not begin counting down until the last treatment date.

However, this is a very complex exception. Your attorney will be able to tell you what deadlines apply in your individual case.

Foreign Objects

In some cases, medical malpractice involves a foreign object, such as a needle or surgical sponge, being left in your body.

In that case, you have two years from the date it occurred, or one year from the date when you discovered the foreign object or reasonably should have discovered it, whichever amount of time is longer.

Fraud

If there is proof of concealment, fraud, or intentional misrepresentation that prevented you from discovering the malpractice, then you have a year from the date of discovery or when it reasonably should’ve been discovered.

Failure to Diagnose

Some medical malpractice cases involve a negligent failure to diagnose a malignant tumor or cancer.

In those cases, you will have a year to file a claim after you learn of the diagnosis if certain conditions exist.

However, this rule applies only to cases where the omission or underlying act occurred after July 1, 2008.

Government Employees

Another exception to the two-year rule to note is when your malpractice involves a medical professional employed by the Commonwealth of Virginia.

That could be a doctor at UVA or VCU, for example.

These claims fall under the Virginia Tort Claims Act.

Under these rules, you must provide notice to the Commonwealth within a year of the alleged malpractice.

Statute of Repose

Even if an exception applies that would extend the statute of limitations in your case, Virginia’s statute of repose may prevent you from bringing your claim more than 10 years after the malpractice occurred.

For example, if you discover a foreign object 13 years after surgery, you would not be able to bring a claim even though you would typically have a year from the date of discovery.

What Happens If You Miss the Deadline to File a Medical Malpractice Lawsuit?

Missing the deadline means the statute of limitations has expired or run out. If this happens, you cannot legally pursue a claim any longer.

If you were in the middle of negotiations with the insurance company, they do not have to continue settlement talks with you.

That is one of the reasons why retaining a skilled Richmond medical malpractice lawyer is crucial.

When you hire us as your attorneys, we will make sure a lawsuit is filed before the deadline.

How Do You Know If You Have a Case for Medical Malpractice?

When you see a medical professional, you expect that the people you entrust your life to will ensure you receive the proper care.

When mistakes occur and you suffer harm at the hands of a doctor, nurse, anesthesiologist, etc., you may have legal recourse for your injuries.

However, not all incidents will rise to the level of medical malpractice.

Your case must meet specific criteria for you to bring a successful claim for damages. 

Duty

First, you must prove that the physician had a duty to provide you with reasonable care.

The existence of this duty depends on whether you had a doctor-patient relationship.

There has to be an identifiable relationship showing you are a patient of the medical professional.

You cannot claim damages for decisions you made following an offhand comment from a physician at a social gathering, for example.

In most cases, it’s relatively straightforward to show a doctor-patient relationship.

Where it can be tricky is if you had a consulting doctor who didn’t administer treatment directly.

Breach

The next element you must show is that the physician breached their duty to you.

You don’t have the right to sue just because you’re unhappy.

To prove they breached their duty, you must provide evidence that another reasonable doctor with similar training and experience would not have harmed you when presented with the same circumstances.

Doctors must give appropriate and careful treatment.

When they fail to do so, they can be liable for malpractice.

Causation

The third element in a medical malpractice claim is whether the doctor’s negligence is what caused your injuries.

Many cases involve someone who was already sick or injured, which can complicate matters.

Damages

Lastly, did the negligence and injury lead to your damages?

If you didn’t suffer any harm and have no damages, you still don’t have the makings of a successful medical malpractice suit.

Damages include things like additional medical expenses, loss of earnings, lost earning capacity, disability, physical pain, and mental anguish.

Without one or more of these, you don’t meet the threshold for the last element.

Can You File Your Own Medical Malpractice Lawsuit?

Some prospective clients want to know if they can file their own medical malpractice lawsuit rather than hire an attorney.

From a legal standpoint, yes, you can file your own case.

However, should you do it?

Medical malpractice lawsuits are notoriously complicated.

You’re going up against a doctor or medical facility with deep pockets.

That means they have significant insurance coverage and a large legal team representing their interests.

If you file your own claim, the defendant’s legal team will prey on your inexperience and lack of knowledge.

They may not take your claim seriously or offer you a nominal amount in hopes that you drop the lawsuit.

You need someone on your side with the skills, experience, and resources to protect your rights and help you get the compensation you deserve.

Also, filing a lawsuit for medical malpractice is not cheap.

Do you have thousands of dollars in your bank account?

You need to pay for court costs, court reporter expenses, hourly fees for experts, copying costs, and more.

Your medical malpractice lawyer will typically front these costs, so you don’t need to pay them until after you get compensation for your injury.

What Is the Most Common Reason for Malpractice?

Several primary issues can lead to medical malpractice.

The first is a failure to diagnose or misdiagnosis.

If a doctor fails to correctly diagnose a patient when another competent doctor would have, the patient may have a malpractice claim.

Did the failure to diagnose alter the patient’s outcome?

If the proper diagnosis would’ve led to a better result than was achieved, that can point to malpractice.

The second factor is improper treatment.

Did the physician treat you in a manner that other competent doctors would’ve never done?

Or did they choose the right treatment but administer it incorrectly?

If so, that can also point to medical malpractice.

The third common reason for malpractice is a failure to warn the patient of known risks.

Doctors have a legal duty to tell you upfront the risks of a certain course of treatment or medical procedure.

This is the duty of informed consent. Imagine you have a risky surgery ahead of you, but you don’t know it’s dangerous.

Would you have not elected to go through the procedure if your doctor had thoroughly apprised you of the dangers?

If you were injured in a way you should have been warned about but weren’t, it could point to malpractice.

Contact a Richmond Medical Malpractice Lawyer Today

If you or someone you loved suffered harm at the hands of a medical professional and you believe you’re the victim of medical malpractice, it’s crucial to speak with a lawyer right away.

Our skilled Richmond medical malpractice lawyers at Lantz & Robins, P.C., are here to help.

We have over four decades of combined experience and a proven record of success.

To get your questions answered about how to file a medical malpractice claim in Virginia, contact our office today to schedule an initial consultation.

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W. RANDOLPH ROBINS, JR.

Mr. Robins is an active member of the Virginia Trial Lawyers Association and the American Association for Justice, groups that are dedicated to making transportation, healthcare, and workplaces safer for average people. Born and raised in Richmond, Mr. Robins graduated from the University of North Carolina and earned his law degree from the Washington College of Law at American University.