Statute of limitations in medical malpractice cases in Virginia

You went to the doctor for treatment or for some procedure. You believe that the doctor who treated you may have done something wrong that resulted in a worse outcome for you, and may have committed medical malpractice.

stethoscope and mallet on a table

You decide that you simply don’t have the time or energy right now to consult a lawyer and pursue any claim you have against the doctor and that you will wait until you feel better to do anything about it.  You should be aware, however, that you should not wait too long, because your claim is subject to a deadline known as a statute of limitations. Once that deadline passes, then you can no longer legally pursue your claim.

A medical malpractice lawyer familiar with the statute of limitations for medical malpractice cases in Virginia is a valuable advocate for patients who have concerns about their medical treatment. For more than a century, Allen & Allen has been committed to representing clients injured through no fault of their own, including by medical negligence.

Grounded in integrity, respect, compassion, and trust since 1910, these values define who we are. At Allen & Allen, legal representation is a promise to fight alongside you, secure fair dealings with insurance companies, and seek justice. Saying “I am an Allen” articulates our dedication.

What is the statute of limitations for medical malpractice in Virginia?

Statutes of limitations in medical malpractice lawsuits in Virginia are specified in laws passed by the Virginia legislature. These laws set strict limits on how much time you have to file a civil lawsuit, like a personal injury claim, for medical malpractice. There are two rules to keep in mind regarding statutes of limitations:

  1. The time period starts running on the date your claim arises or “accrues” (the date of your personal injury)
  2. Once the statute of limitations expires or “runs,” you can’t file a lawsuit or legally pursue your claim.

There are many types of civil claims, and each is governed by its own statute of limitations. The statute of limitations for medical malpractice claims gives a range of time, as opposed to one specific date, and that time may be as little as one year or as long as 10 years. In determining the applicable time limit for a specific medical malpractice case, it is important to consider two things:

  1. The type of malpractice
  2. When it is discovered.

Doctor and Muslim woman working on a parient on the operating table

Can Virginia’s medical malpractice statute ever be extended?

In most cases, the time limit for medical malpractice claims is two years from the date of injury, which may or may not be the same date the act of malpractice occurred. However, there are specific situations where this period can be extended:

  1. In cases where a foreign object with no therapeutic effect has been left in the body, the statute of limitations runs one year after the date the object is discovered or reasonably should have been discovered
  2. In cases where fraud, concealment, or intentional misrepresentation prevented discovery of the injury within the 2 year period, the statute of limitations runs one year after the date the injury is discovered or by the exercise of due diligence reasonably should have been discovered
  3. In cases involving negligent failure to diagnose a malignant tumor or cancer, the statute of limitations runs one year after the date the diagnosis of a malignant tumor or cancer is communicated to the patient by a healthcare provider IF the health care provider’s underlying act or omission was on or after July 1, 2008. If, in a claim for negligent failure to diagnose a malignant tumor or cancer, the underlying act or omission was before July 1, 2008, the statute of limitations is given by the law that existed prior to July 1, 2008.

The above provisions, however, will not extend the limitations to a period greater than ten years after the cause of action accrues.

When does the statute of limitations start running?

You may have anywhere from one to ten years to file a medical malpractice lawsuit. Unfortunately, determining when your time period begins running is often unclear and will depend entirely on the particular facts of your case. For this reason, it is important that you contact a lawyer immediately if you suspect you have been the victim of medical malpractice. Your lawyer can evaluate your claim and advise you of how much time you have and what steps you should take to protect and pursue your claim.

How an attorney can help with a medical malpractice claim

An attorney plays a vital role in investigating medical malpractice claims. They will gather and review medical records, consult with medical experts to determine if the standard of care was met, and interview witnesses to build a strong case on your behalf. Once the investigation is complete, your attorney will help you decide whether to file a claim or lawsuit.

In many cases, the first step is to file a claim with the healthcare provider’s insurance company. This involves submitting a demand letter that outlines the details of the case and the compensation being sought. If the insurance company denies the claim or offers an unsatisfactory settlement, your attorney may recommend filing a lawsuit.

First, your attorney will file a complaint with the court outlining the details of the case and the damages being sought. The defendant (the healthcare provider or hospital) will then have an opportunity to respond to the complaint. From there, the case will enter the discovery phase, where both sides exchange information and evidence. This may involve depositions, where witnesses are questioned under oath, and the exchange of medical records and other documents.

If the case does not settle during this phase, it will proceed to trial. At trial, your attorney will present evidence and argue your case before a judge or jury. This is where having a skilled and experienced medical malpractice attorney can make a significant difference in the outcome of your case.

Damages available for medical malpractice injuries

In Virginia, several types of damages may be available to individuals who have been affected by medical malpractice. These damages are intended to compensate the victim for the losses they have suffered as a result of the healthcare provider’s negligence.

Economic Damages

Economic damages are designed to compensate the victim for the financial losses they have incurred as a result of the medical malpractice. These may include:

  • Medical expenses: This includes the cost of any medical treatment, hospitalization, surgery, medication, and rehabilitation needed as a result of the malpractice.
  • Lost wages: If the victim is unable to work due to their injuries, they may be entitled to compensation for the wages they have lost.
  • Future medical expenses and lost earning capacity: If the victim’s injuries are severe and require ongoing treatment or affect their ability to work in the future, they may be entitled to compensation for these future losses.

Non-Economic Damages

Non-economic damages are intended to compensate the victim for the intangible losses they have suffered as a result of the medical malpractice. These may include:

  • Pain and suffering: This includes physical pain, emotional distress, and mental anguish caused by the malpractice.
  • Loss of enjoyment of life: If the victim’s injuries prevent them from enjoying activities they once enjoyed, they may be entitled to compensation for this loss.
  • Loss of consortium: If the victim’s injuries have negatively impacted their relationship with their spouse, they may be entitled to compensation for this loss.

Wrongful death

A wrongful death claim can be filed if medical malpractice results in the death of a patient. A wrongful death claim is a type of legal action that allows the family members or the estate of the deceased to seek compensation for the losses they have suffered as a result of their loved one’s untimely death.

In a medical malpractice wrongful death case, the plaintiff (usually a family member or the executor of the deceased’s estate) must prove that the healthcare provider’s negligence or failure to meet the standard of care directly caused the patient’s death. This can be challenging, as it requires a thorough understanding of medical procedures and standards of care, as well as the ability to prove causation between the healthcare provider’s actions and the patient’s death.

In Virginia, there are specific rules and requirements for filing a wrongful death claim, including:

  • Statute of Limitations: The statute of limitations for filing a wrongful death claim in Virginia is generally two years from the date of the deceased’s death. However, if the death was not immediately apparent or was the result of a hidden injury, the statute of limitations may be extended.
  • Beneficiaries: In Virginia, the beneficiaries who are entitled to file a wrongful death claim include the surviving spouse, children, grandchildren, parents, siblings, and any relative who was primarily dependent on the deceased for support.
  • Damages: In a wrongful death case, the beneficiaries may be entitled to recover damages such as funeral and burial expenses, medical expenses related to the deceased’s final illness or injury, loss of future income and benefits, loss of companionship and guidance, and mental anguish.

While no amount of money can bring back a loved one, a successful wrongful death claim can provide a sense of justice and help ease the financial burden on the family. If you believe that your loved one’s death was the result of medical malpractice, it is important to seek legal assistance as soon as possible. Protect your rights and explore your options for seeking compensation.

Contact Allen & Allen to preserve your medical malpractice claim

Investigating a medical malpractice claim is time-consuming. For that reason, you should contact an attorney long before your deadline runs out, so that the attorney will have time to properly investigate your claim. If your deadline passes before you either settle or file a lawsuit, you will not get the compensation you deserve. Our personal injury lawyers are well-versed in Virginia laws as they apply to the medical malpractice statute to help you avoid your claim being time-barred.

If believe you you have suffered from medical malpractice, call Allen & Allen for a free consultation today, at 866-388-1307, or complete our online contact form.