Determining the Statute of Limitation for Children in Medical Malpractice Cases

Author: Attorney Malcolm "Mic" McConnell, III

It has been said that you can tell a lot about a society by how it treats its children. Generally speaking, the United States and the Commonwealth of Virginia take good care of their children. There are, however, exceptions to that rule. In Virginia, the legal rights of children - our must vulnerable class - have been sacrificed to give extra legal rights to physicians - perhaps our most privileged class. Specifically, I am referring to the rights of children who are victims of medical malpractice, and the amount of time they are given by law to seek compensation for their injuries.

You may recall from earlier blog entries that a statute of limitations is the time limit on filing a lawsuit. In Virginia, the statute of limitations in most personal injury cases is usually two years from the date of the injury. 1 However, in medical malpractice cases, Virginia statutes of limitations are often complicated and the rules are often different.

This article will discuss statutes of limitations for medical malpractice victims in Virginia who are under the age of 18. Again, though every case is different and sometimes there are exceptions 2, the statute of limitations in injury cases is usually two years. However, Virginia law considers children under the age of 18 to be under a legal disability - they do not have the same full legal rights as adults. Because children do not have the same legal rights as adults, the Commonwealth gives them special protection: In most types of personal injury cases, while the two year statute of limitations applies, the two year period does not begin to run until the child has reached the age of 18.3 Thus, in most instances, a child under the age of 18 who has been injured by the negligence of another will have until the child's 20th birthday to file a lawsuit. The reason for this extension is that a child cannot file a lawsuit, but must file through an adult; this extended period prevents the child from being punished just because an adult did not pursue a claim for the child.

Not so in medical malpractice cases.

In Virginia, negligent physicians receive special protection from accountability that the rest of us would not. In every instance, the price of that special protection is paid by their victims. When it comes to statutes of limitations, injured children pay the price: their protected status is stripped from them to shield negligent physicians.In Virginia, when a child under the age of 18 is negligently injured by anyone other than a physician, the child has more than two years to file a lawsuit. If the child is 9 years old, he has over ten years to file a lawsuit. However, if that same child were injured by a negligent doctor, the interests of the child victim are sacrificed for the protection of the negligent doctor, and that child will have only two years to file his lawsuit, just as if he were a full grown adult (even though he is too young to file that lawsuit himself).

Very small children still have some extra protection, however. Virginia law provides that the statute of limitations in medical malpractice cases is two years, but in no event will a statute lapse before the child's 10th birthday. 4 Thus, any child who has reached his 8th birthday will be treated as an adult regarding the statute of limitations. If an adult does not pursue the claim for the child, then the child's claim is barred.

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 - See Va. Code §8.01-243 (at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-243).

2 - For instance, lawsuits against a city, county, state or federal government may require certain "notice" be given. Although not technically a statute of limitation, these requirements may bar you from pursuing a recovery just as effectively as a statute of limitation. You should consult an attorney promptly after injury in order to protect your rights.

3 - See Va. Code §8.01-229 (at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-229).

4 - See Va. Code §8.01-243.1 (at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-243.1).

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