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