Medical Malpractice

Medical malpractice in Virginia concerns any licensed health care provider (doctors, hospitals, pharmacists, nurses, dentists, etc. ) who fails to provide health care treatment in her specialty's practice area using the same standard of care that other health care providers in that practice area would have used under the circumstances, and that failure to adhere to the specialty's standard of care caused injury to a person. Virginia has a few unique features about its medical malpractice lawsuits that generally limit liability for health care providers so it is important for prospective plaintiffs to know ahead of time some of the issues that may affect their case.

Understanding the Statute of Limitations

Many patients who believe that they might be the victim of medical malpractice are hesitant to sue doctors who treated them or may even still be treating them. This hesitancy can often translate into waiting for years, especially if the person wants to see whether their condition improves before taking legal action. However, Statutes of Limitations can restrict when a lawsuit can be filed if the plaintiff waited too long to prosecute his claim. It is very important to figure out when the Statute of Limitations will expire as early as possible.

In Virginia, a person generally has two years to bring a lawsuit for medical malpractice from the date that the action "accrued" (when the last major event related to the malpractice occurred). There are three main exceptions to this rule: (1) latent discovery of the malpractice; (2) infancy; and (3) continuing treatment.

Latent Discovery

Since malpractice events may not be discovered for years (ex: surgical sponge left inside the body during surgery), or when a health care provider fails to timely diagnose a cancerous tumor, or a health care provider fraudulently concealing their malpractice from the patient, once a patient learns or reasonably should have learned of the malpractice, she will then have one year from the date of the malpractice discovery to commence the lawsuit. The Statute of Limitations, however, will not extend beyond ten years from the date that the malpractice originally occurred, except in cases where the plaintiff was under a disability during this time.

Infancy

Generally, children who suffer an injury or otherwise have a right to bring a lawsuit are considered "disabled" under Virginia law. Accordingly, their Statute of Limitations does not "accrue" until they become eighteen years old, and then they have the regular two year period to commence a lawsuit for personal injury (by 20 years old.) Medical malpractice laws restrict that right significantly.

Parents of children who have suffered medical malpractice can commence lawsuits to reclaim only the medical expenses associated with the malpractice within five years. The child must bring a lawsuit for medical malpractice within two years from the date that the action accrued if the child is eight years or older, but if the child is less than eight years old, the child has until her tenth birthday to commence the lawsuit. This "exception" only protects children under eight years old by giving their parents a little extra time to commence the lawsuit. In general, the Statute of Limitations affecting children injured by medical malpractice harms children's rights as it imposes a harsh Statute of Limitations on children who have to rely on their parents to commence a timely lawsuit on their behalf.

Continuing Treatment

To address patients' concerns about suing their treating doctor for malpractice, the Courts came up with the "continuing treatment rule." Generally, the cause of action does not accrue until the patient stops being treated by the malpractice-doctor for the same or related illnesses to the malpractice. This means that if a doctor botched a surgery eight years ago, but the patient continued to see the doctor throughout those eight years regarding follow-up of the surgery and original medical issue, the patient's two-year Statute of Limitations does not start counting down until the patient ceases treatment with that doctor.

It is also important to know as early as possible whether the health care provider is a governmental agency or employee of a governmental agency as it can implicate unique rules requiring filing early Notices of Claim to the state, county, or local government.

Your Case Will Not Be the High Dollar Message to Bad Doctors

Due to the lobbying efforts of tort reformers, Virginia imposes a cap on damages for medical malpractice cases. The grand total of a medical malpractice case's worth can never be more than about $2 million dollars (each year the cap goes up by $50,000). This includes medical expenses, pain and suffering, loss of income, permanence of an injury, and punitive damages. In Virginia, punitive damages in all cases are capped at $350,000, but this limit is included in the medical malpractice $2 million cap. Additionally, if a loved one died as a result of the doctor's negligence, framing the case as a "wrongful death" action does not affect the cap.

If a defendant is the Commonwealth of Virginia or an employee of the Commonwealth, the damages are all-inclusively capped at $100,000. Local governments (counties, cities, towns) and their employees also are protected by the doctrine of "sovereign immunity" (immunity from lawsuits), and unless specifically waived, cannot be sued. Additionally, organizations that provide free health care services are generally immune as long as they exercised due care in the selection and retention of its employees, or provided free care to the plaintiff which the plaintiff acknowledged in writing.

This all means that if your health care provider made a very serious mistake that caused life-long injury, or the death of a loved one, it is unlikely that you will ever be fully compensated. These caps also enable doctors and their insurance carriers to breathe a sigh of relief knowing ahead of time what their "worst case" scenario would be. Although the law is generally unfair to plaintiffs, it is the unfortunate current state of medical malpractice justice in Virginia.

Medical Malpractice Cases Are All About Experts

No matter what state you bring a medical malpractice case in, expert witnesses are the stars of the show. Before a case is ever commenced, throughout discovery, and at trial, expert witnesses will be called on time and time again to opine on the medical records, medical research and standards that she and her opponent rely on, and how the plaintiff's injuries are (not) the result of medical malpractice.

(Again as a result of tort reform efforts,) Virginia courts require that before a medical malpractice case is commenced, a plaintiff must first obtain an expert witness in the same field as the malpractice-defendant to review the evidence in the plaintiff's possession (plaintiff's copy of medical records), and provide an affidavit stating that the expert believes that there was a deviation from the standard of care and that it caused injury to the plaintiff. The experts typically need to be specialists in the same field that the malpractice-defendant treated the plaintiff for. Although this is problematic as discovery has not even occurred and that there may be a lot of information not provided to the plaintiff through their own records requests, this is the current state of medical malpractice law in Virginia.

Typically, the most important part of a medical malpractice case is the examinations and cross-examinations of the parties' expert witnesses as it often becomes a "battle of the experts." The jury considers who is more qualified, more knowledgeable about the medicine, standards and the particular facts about the case, and who seems to have the best explanation for what happened to the plaintiff. Although most medical malpractice cases do not go to trial, these same "battles" occur throughout discovery and motion practice in the form of affidavits and depositions. Plaintiffs should be aware when considering a medical malpractice action that expert witness fees are often very high (often higher than the attorney's rates), and that their extensive use throughout the case will mean significant costs that will eventually be recouped from a settlement or verdict award.

Medical Malpractice Review Panels

A unique feature of medical malpractice cases in Virginia is the involvement of medical malpractice review panels. Within 30 days of the last defendant's responsive pleading filing (usually the defendant's Answer), any party can request a medical malpractice review panel to assess the case, and then all related parties must participate. The case will effectively be put on hold (excepting motions that can be resolved and discovery) while the review panel considers the medical issues in the case. Panel members consist of two impartial attorneys, two impartial health care providers from the same field as the malpractice-defendant(s) (including specialty if possible), and the judge presiding over the case. The judge does not need to participate in the panel, however.

Much like a mini-trial, the parties will introduce evidence and expert witness testimonies (in-person at a hearing and/or through deposition) although the rules of evidence are lax during these hearings. The panel will render an opinion regarding whether:

"1. The evidence does not support a conclusion that the health care provider
failed to comply with the appropriate standard of care;

2. The evidence supports a conclusion that the health care provider failed to
comply with the appropriate standard of care and that such failure is a
proximate cause in the alleged damages;

3. The evidence supports a conclusion that the health care provider failed
to comply with the appropriate standard of care and that such failure
is not a proximate cause in the alleged damages; or

4. The evidence indicates that there is a material issue of fact, not
requiring an expert opinion, bearing on liability for consideration by
a court or jury."
VA Code § 8.01-581.7.

This opinion is not conclusive, but it can be submitted as evidence at trial. Additionally, the panel members (except the judge) can be called on as witnesses at trial to testify concerning their opinion at the medical review panel.

Please contact our office if you are considering a medical malpractice claim against a health care provider.