The Statute of Limitations in Medical Misdiagnosis
Author: Attorney Malcolm P. McConnell
If you have cancer that has been allowed to spread and threaten your life because of medical negligence, the answer is "yes." But it may shock you to learn that, only a few years ago, the answer was "no." Until recently, your right to sue could expire before you even knew you had a case! How could something so unfair be the law in Virginia?
All claims for personal injury in Virginia, including medical malpractice cases, are subject to time limits. 1 Although each case can be different, the general time limit for filing an injury lawsuit in Virginia is two years after the injury. 2 If the lawsuit is not filed within those two years, the right to sue is lost forever. In an automobile injury case, it is easy to figure out when the two year period begins to run, because the negligence and the injury are simultaneous. But when a doctor negligently misdiagnoses cancer, or fails to communicate a diagnosis to a patient, the physical injury does not occur until sometime later, as the disease progresses. In such a case, the patient will be totally unaware of the disease, and therefore unaware of its growth or spread. Nevertheless, that two year time period is slipping away. Until recently, if more than two years passed without the patient filing a lawsuit - even if the patient is unaware of the disease - the right to sue was lost forever.
I recently represented a woman in exactly that unfair situation. Five years before, she had had her uterus removed. Although the uterus contained cancer, she was told she was cancer free and placed on estrogen replacement therapy. Five years later, she was diagnosed with recurrent uterine cancer. The five-year-old pathology slides from her uterus were reviewed, and she learned that she had had cancer all along, but had never been told. In fact, the estrogen she had been taking for five years had actually "fed" her cancer, and would never have been given to her if the diagnosis had been known. Although I tried to make a claim for her, she died soon after and the claim could not survive a statute of limitations defense. Her right to sue had expired before she even knew she was sick.
While injustice may be corrected in the courtroom, it may be prevented in the legislature. After my client paid the ultimate price for physician negligence, I drafted a new law for cancer victims protecting their right to sue until one year AFTER they are informed of their illness. I am proud to say that the law passed both houses of the General Assembly without a single "no" vote at any stage of the process. In fact, when I explained the bill to one member of the House of Delegates, he was surprised and asked, "That's not the law already?"
The new law went into effect on July 1, 2008. As a medical malpractice lawyer at the Allen Law Firm, I am proud to represent victims of medical negligence in the courtrooms, the legislature, or anywhere their rights are at stake. Our Firm is committed to the representing the rights of the individual in the legislature as well as the courtroom.
About the Author: Mic McConnell is a Richmond medical malpractice attorney. With over 20 years of experience, Mic has handled challenging cases in almost every medical specialty for over twenty years.
1 - These are generally referred to as "statutes of limitations", as the time period is usually set by a written law known as a statute.
2 - See Va. Code §8.01-243.