Virginia Statutes Related to Nursing Homes and Malpractice Lawsuits

Federal and State Nursing Home and Malpractice Statutes

Virginia has many unique statutes that impact nursing home and malpractice cases. Non-lawyers should consult with legal counsel before attempting to pursue a case pro-se. Legal practitioner reviewing this cite should update all statutes before relying on any citations, as code provisions are periodically updated or changed.

A. Malpractice Caps, Va. Code 8.01-581.15, Limitations of damages in malpractice cases

Healthcare providers are provided unique protections for their negligent conduct in Virginia, including limitations on recoverable damages in malpractice and wrongful death cases. Where the alleged malpractice occurred after August 1, 1999, the total amount of recovery for injury or death, shall not exceed the following:

July 1, 2020, through June 30, 2021   $2.45 million

July 1, 2021, through June 30, 2022   $2.50 million

July 1, 2022, through June 30, 2023   $2.55 million

July 1, 2023, through June 30, 2024   $2.60 million

July 1, 2024, through June 30, 2025   $2.65 million

July 1, 2025, through June 30, 2026   $2.70 million

July 1, 2026, through June 30, 2027   $2.75 million

July 1, 2027, through June 30, 2028   $2.80 million

July 1, 2028, through June 30, 2029   $2.85 million

July 1, 2029, through June 30, 2030   $2.90 million

July 1, 2030, through June 30, 2031   $2.95 million

B. Expert Witness Certifications for Filing a lawsuit, Va Code §8.01-20.1

Before a malpractice case can be served against a heath care provider in Virginia, the Plaintiff must secure an expert witness certification supporting a breach in the standard of care and resulting damages. This requirement applies in all cases against healthcare providers for alleged negligence, unless the act of negligence is so obvious, that it “lies within the range of the jury’s common knowledge and experience.”

• § 8.01-20.1. Certification of expert witness opinion at time of service of process.

Every motion for judgment, counter claim, or third party claim in a medical malpractice action, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed. This certification is not necessary if the plaintiff, in good faith, alleges a medical malpractice action that asserts a theory of liability where expert testimony is unnecessary because the alleged act of negligence clearly lies within the range of the jury’s common knowledge and experience.

The certifying expert shall not be required to be an expert witness expected to testify at trial nor shall any defendant be entitled to discover the identity or qualifications of the certifying expert or the nature of the certifying expert’s opinions. Should the certifying expert be identified as an expert expected to testify at trial, the opinions and bases therefor shall be discoverable pursuant to Rule 4:1 of the Rules of Supreme Court of Virginia with the exception of the expert’s status as a certifying expert.

Upon written request of any defendant, the plaintiff shall, within 10 business days after receipt of such request, provide the defendant with a certification form that affirms that the plaintiff had obtained the necessary certifying expert opinion at the time service was requested or affirms that the plaintiff did not need to obtain a certifying expert witness opinion. The court, upon good cause shown, may conduct an in camera review of the certifying expert opinion obtained by the plaintiff as the court may deem appropriate. If the plaintiff did not obtain a necessary certifying expert opinion at the time the plaintiff requested service of process on a defendant as required under this section, the court shall impose sanctions according to the provisions of § 8.01-271.1 and may dismiss the case with prejudice.

2005, cc. 649, 692; 2007, c. 489; 2013, cc. 65, 610.

Relevant case decisions:

1. Beverly Enterprises–Virginia , 247 Va. at 267, 269, 441 S.E.2d at 3, 4
   Holding that no expert was required to establish the standard of care because “whether a reasonably prudent nursing home would permit its employees to leave a tray of food with an unattended patient who had a history of choking and who was unable to eat without assistance is certainly within the common knowledge and experience of a jury”
2. Roanoke Hospital Assn v. Hayes, 204 Va. 703, 133 S.E.2d 559
   Where a patient with violent tendencies was allowed to remain on an open ward, no expert was required to establish a negligence claim; this was not a malpractice case.
3. Lents v. Vetter (Fairfax Va. Cir. 2010) Judge Terrence Nay
   Holding that where Defendant voluntarily answers the lawsuit before Plaintiff’s counsel seeks service, the requirements of 8.01-20.1 do not apply
4. Summers v. Syptak, 8.01 S.E.2d. 422 (2017)
   Expert certification required where causation involved consideration of preexisting issues and whether a physician’s alleged inappropriate sexual comments caused an exacerbation of her prior PTSD and depression.

C. Expert Qualification Requirements – Va Code, §8.01-581.20

To qualify to testify in a malpractice case an expert or doctor must be familiar with the standards of care or standard of conduct for the defendant. This means the expert must show by experience or education that he practices in the same or related field as the Defendant and that he was clinically active in such practice within a year of the allege malpractice. The relevant statute is set forth below:

A. In any proceeding before a medical malpractice review panel or in any action against a physician, clinical psychologist, clinical social worker, podiatrist, dentist, nurse, hospital, or other health care provider to recover damages alleged to have been caused by medical malpractice where the acts or omissions so complained of are alleged to have occurred in this Commonwealth, the standard of care by which the acts or omissions are to be judged shall be that degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth and the testimony of an expert witness, otherwise qualified, as to such standard of care, shall be admitted; provided, however, that the standard of care in the locality or in similar localities in which the alleged act or omission occurred shall be applied if any party shall prove by a preponderance of the evidence that the health care services and health care facilities available in the locality and the customary practices in such locality or similar localities give rise to a standard of care which is more appropriate than a statewide standard. Any health care provider who is licensed to practice in Virginia shall be presumed to know the statewide standard of care in the specialty or field of practice in which he is qualified and certified. This presumption shall also apply to any person who, but for the lack of a Virginia license, would be defined as a health care provider under this chapter, provided that such person is licensed in some other state of the United States and meets the educational and examination requirements for licensure in Virginia. An expert witness who is familiar with the statewide standard of care shall not have his testimony excluded on the ground that he does not practice in this Commonwealth. A witness shall be qualified to testify as an expert on the standard of care if he demonstrates expert knowledge of the standards of the defendant’s specialty and of what conduct conforms or fails to conform to those standards and if he has had active clinical practice in either the defendant’s specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of the action.

The provisions of this section shall apply to expert witnesses testifying on the standard of care as it relates to professional services in nursing homes.

B. In any action for damages resulting from medical malpractice, any issue as to the standard of care to be applied shall be determined by the jury, or the court trying the case without a jury.

C. In any action described in this section, each party may designate, identify, or call to testify at trial no more than two expert witnesses per medical discipline on any issue presented. The court may permit a party, for good cause shown, to designate, identify, or call to testify at trial additional expert witnesses. The number of treating health care providers who may serve as expert witnesses pursuant to § 8.01-399 shall not be limited pursuant to this subsection, except for good cause shown. If the court permits a party to designate, identify, or call additional experts, the court may order that party to pay all costs incurred in the discovery of such additional experts. For good cause shown, pursuant to the Rules of Supreme Court of Virginia, the court may limit the number of expert witnesses other than those identified in this subsection whom a party may designate, identify, or call to testify at trial.

1979, c. 325; 1980, c. 164; 1989, cc. 146, 729; 1992, c. 240; 2003, c. 251; 2008, cc. 125, 169, 205; 2015, cc. 310, 361; 2020, c. 945.

Relevant Case Decisions regarding expert qualifications:

1. Henning v. Thomas, 235 Va. 181, 186, 366 S.E.2d 109, 112 (1988).
   “[T]here is no rigid formula to determine the knowledge or familiarity of a proffered expert concerning the Virginia standard of care. Instead, that knowledge may derive from study, experience, or both.”
2. Rizzo v. Schiller, 248 Va. 155, 445 S.E. 153 (1994)
   It is the duty of a physician to warn the patient of dangers of using a particular procedure. In most cases expert testimony is necessary to establish the duty to disclose and the information that must be disclosed. A generalized form addressing any type of treatment is not adequate. The Law requires informed consent not mere consent.
3. Jenkins v. Paynet, 251 Va. 122, 465, S.E.2d 795
   In this malpractice case both doctors were subject to the same standard of care and allegedly failed to diagnose cancer. The non-settling defendant sought to offer evidence of the other Defendant’s negligence. This was irrelevant evidence properly excluded by the trial court.
4. Taylor v. Mobil Corp, 248 Va. 101, 444 S.E.2d 705
   Malpractice cap did not apply to doctor who allowed his medical license to lapse.
5. McMunn v. Tatum, 237 Va. 558, 379 S.E.2d 908 (Va., 1989)
   The court in McMunn stated that the question of whether a particular treatment is medically necessary, as well as the often more difficult question of whether such treatment is causally related to a condition resulting from some act or omission on a defendant’s part, can usually be determined only by a medical expert qualified in the appropriate field who has studied the plaintiff’s particular case. See McMunn, 379 S.E.2d at 914. Thus, the McMunn court held that where a defendant objects to the introduction of medical bills, indicating that the defendant’s evidence will raise a substantial contest as to either the question of medical necessity or the question of causal relationship, the court may admit the challenged medical bills only with foundation expert testimony tending to establish medical necessity or causal relationship, or both, as appropriate. See McMunn, 379 S.E.2d at 914.

D. Virginia Standard of Care Defined, Reasonably prudent practitioner, Va. Code 8.01-581

Under Virginia law the standard of care “shall be that degree of skill diligence practiced by a reasonably prudent practitioner in the filed of practice or specialty in this commonwealth and the testimony of an expert, otherwise qualified, as to such standard of care, shall be admitted; provided however, that the standard of care in the location or in similar localities in which the alleged act or omission occurred shall be applied if any party shall prove by a preponderance of evidence that the health care services and health care facilities available in the locality and customary practices in such location or similar localities give rise to a standard of care which is more appropriate than a statewide standard.

E. Va. Code § 65.2-605 (Workers compensation not liable for malpractice)

Statute states that an employer in a worker’s compensation case shall not be liable for malpractice for a physician furnished by the employer, but that the injury resulting shall be deemed part of the original injury.

F. Admission of Learned Treatises: Va. Code 8.01-401.1

Opinion testimony by experts; hearsay exception.

In any civil action any expert witness may give testimony and render an opinion or draw inferences from facts, circumstances or data made known to or perceived by such witness at or before the hearing or trial during which he is called upon to testify. The facts, circumstances or data relied upon by such witness in forming an opinion or drawing inferences, if of a type normally relied upon by others in the particular field of expertise informing opinions and drawing inferences, need not be admissible in evidence.

The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals or pamphlets on as object of history, medicine or other science or art, established as a reliable authority by testimony or by stipulation shall not be excluded as hearsay. If admitted, the statements may be read into evidence but may not be received as exhibits. If the statements are to be introduced through an expert witness upon direct examination, copies of the statements shall be provided to opposing parties thirty days prior to trial unless otherwise ordered by the court.

Relevant Case Decisions:

1. Harman v. Honeywell Int’l, Inc., 758 S.E.2d 515 (2014)
   First, when learned material is used on direct examination the testifying witness must have “relied upon” the hearsay statements. Second, the statements must be (a) contained in a published treatise, periodical or pamphlet; (b) on a subject of history, medicine or other science or art; and (c) established as “a reliable authority” by testimony or by stipulation.
2. Harman v. Honeywell Int’l, Inc., 758 S.E.2d 515 (2014) – addressing reliability of reports relied upon by expert and holding that:
   At the outset, we note that the Mooney Report simply is not the type of authoritative literature contemplated by Code § 8.01–401.1. Learned treatises have sufficient indicia of trustworthiness because their authors have no bias in any particular case and are aware that their work will be read and evaluated by others in their field. See United States v. Martinez, 588 F.3d 301, 312 (6th Cir.2009). However, the Mooney Report lacks such assurances of trustworthiness. The report is not a “published treatise[ ], periodical[ ] or pamphlet[ ]” on a “subject of … science.” Code § 8.01–401.1. Rather, it is a four and one-half page accident investigation report that was prepared by the plane’s manufacturer.Of even greater importance, at the time the report was prepared, Mooney had not yet been dismissed as a defendant in this case. Thus, the Mooney Report was prepared for litigation purposes and “was not subjected to peer review or public scrutiny, and it was not written primarily for professionals with the reputation of the writer at stake.” Martinez, 588 F.3d at 312 (internal quotation marks omitted). Consequently, the report lacks the reliability necessary to be a “learned treatise.” See Sommerfield v. City of Chicago, 254 F.R.D. 317, 323 (N.D.Ill.2008) (“[D]ocuments prepared specifically for use in litigation are … dripping with motivations to misrepresent” and “are therefore inadmissible hearsay.”) (quoting Hoffman v. Palmer, 129 F.2d 976, 991 (2d Cir.1942)).Dr. Clarke did not testify that the Mooney Report was a reliable source typically used by experts in his field. Indeed, he could not offer such testimony because, as established above, it was not a “treatise[ ], periodical [ ] or pamphlet[ ]” on a “subject of … science.” Further, the parties did not stipulate to the Mooney Report’s reliability. Thus, we conclude that the circuit court abused its discretion by permitting Dr. Clarke to testify regarding the conclusions reached in the Mooney Report.

G. 8.01-399. Communications between physicians and patients (Supreme Court Rule 2:505 derived from this section).

This statute limits a defense attorney’s ability to speak to a treating healthcare provider without the consent of the Plaintiff or his/her attorney. It also limits the opinions that a defense attorney can obtain from a treating healthcare provider to only information or opinions formed during the course of treatment.

A. Except at the request or with the consent of the patient, or as provided in this section, no duly licensed practitioner of any branch of the healing arts shall be permitted to testify in any civil action, respecting any information that he may have acquired in attending, examining or treating the patient in a professional capacity.

B. If the physical or mental condition of the patient is at issue in a civil action, the diagnoses, signs and symptoms, observations, evaluations, histories, or treatment plan of the practitioner, obtained or formulated as contemporaneously documented during the course of the practitioner’s treatment, together with the facts communicated to, or otherwise learned by, such practitioner in connection with such attendance, examination or treatment shall be disclosed but only in discovery pursuant to the Rules of Court or through testimony at the trial of the action. In addition, disclosure may be ordered when a court, in the exercise of sound discretion, deems it necessary to the proper administration of justice. However, no order shall be entered compelling a party to sign a release for medical records from a health care provider unless the health care provider is not located in the Commonwealth or is a federal facility. If an order is issued pursuant to this section, it shall be restricted to the medical records that relate to the physical or mental conditions at issue in the case. No disclosure of diagnosis or treatment plan facts communicated to, or otherwise learned by, such practitioner shall occur if the court determines, upon the request of the patient, that such facts are not relevant to the subject matter involved in the pending action or do not appear to be reasonably calculated to lead to the discovery of admissible evidence. Only diagnosis offered to a reasonable degree of medical probability shall be admissible at trial.

C. This section shall not (i) be construed to repeal or otherwise affect the provisions of § 65.2-607 relating to privileged communications between physicians and surgeons and employees under the Workers’ Compensation Act; (ii) apply to information communicated to any such practitioner in an effort unlawfully to procure a narcotic drug, or unlawfully to procure the administration of any such drug; or (iii) prohibit a duly licensed practitioner of the healing arts, or his agents, from disclosing information as required by state or federal law.

D. Neither a lawyer nor anyone acting on the lawyer’s behalf shall obtain, in connection with pending or threatened litigation, information concerning a patient from a practitioner of any branch of the healing arts without the consent of the patient, except through discovery pursuant to the Rules of Supreme Court as herein provided. However, the prohibition of this subsection shall not apply to:

1. Communication between a lawyer retained to represent a practitioner of the healing arts, or that lawyer’s agent, and that practitioner’s employers, partners, agents, servants, employees, co-employees or others for whom, at law, the practitioner is or may be liable or who, at law, are or may be liable for the practitioner’s acts or omissions;
2. Information about a patient provided to a lawyer or his agent by a practitioner of the healing arts employed by that lawyer to examine or evaluate the patient in accordance with Rule 4:10 of the Rules of Supreme Court; or
3. Contact between a lawyer or his agent and a nonphysician employee or agent of a practitioner of healing arts for any of the following purposes: (i) scheduling appearances, (ii) requesting a written recitation by the practitioner of handwritten records obtained by the lawyer or his agent from the practitioner, provided the request is made in writing and, if litigation is pending, a copy of the request and the practitioner’s response is provided simultaneously to the patient or his attorney, (iii) obtaining information necessary to obtain service upon the practitioner in pending litigation, (iv) determining when records summoned will be provided by the practitioner or his agent, (v) determining what patient records the practitioner possesses in order to summons records in pending litigation, (vi) explaining any summons that the lawyer or his agent caused to be issued and served on the practitioner, (vii) verifying dates the practitioner treated the patient, provided that if litigation is pending the information obtained by the lawyer or his agent is promptly given, in writing, to the patient or his attorney, (viii) determining charges by the practitioner for appearance at a deposition or to testify before any tribunal or administrative body, or (ix) providing to or obtaining from the practitioner directions to a place to which he is or will be summoned to give testimony.
4. A clinical psychologist duly licensed under the provisions of Chapter 36 (§ 54.1-3600 et seq.) of Title 54.1 shall be considered a practitioner of a branch of the healing arts within the meaning of this section.
5. Nothing herein shall prevent a duly licensed practitioner of the healing arts, or his agents, from disclosing any information that he may have acquired in attending, examining or treating a patient in a professional capacity where such disclosure is necessary in connection with the care of the patient, the protection or enforcement of a practitioner’s legal rights including such rights with respect to medical malpractice actions, or the operations of a health care facility or health maintenance organization or in order to comply with state or federal law.Code 1950, § 8-289.1; 1956, c. 446; 1966, c. 673; 1977, c. 617; 1993, c. 556; 1996, cc. 937, 980; 1998, c. 314; 2002, cc. 308, 723; 2005, cc. 649, 692; 2009, c. 714.

Relevant Case Decisions:

• McCauley v. Purdue Pharma, L.P., 224 F. Supp.2d 1066, 1070 (W.D. Va. 2002) (the unambiguous language of § 8.01-399 did not allow the informal ex parte contact with plaintiff’s treating physicians that was sought by defendants; Curtis v. Fairfax Hospital, 36 Va. Cir. 35, 38, 1995 Va. Cir. LEXIS 1252 (Fairfax Co. Cir. Ct. 1995), stating that “[t]here is no Virginia authority for the proposition that formal discovery can be ignored when a party’s condition is at issue”); and Va. LEO No. 1639 (April 24, 1995).
• McCaffery v. Virginia Women’s Center, Inc., 59 Va. Cir. 266, 267, 2002 Va. Cir. LEXIS 380 (City of Richmond Cir. Ct. 2002) (Judge Melvin R. Hughes, Jr.) (Holding that § 8.01-399 (B) permits the defendants to call plaintiff’s treating doctors as witnesses, but “they will be allowed to testify only on the facts and the medical record,” and they would not be allowed to give expert opinions) (emphasis added); and Cox v. Jones, 52 Va. Cir. 550, 551, 1997 Va. Cir. LEXIS 683 (Montgomery Co. Cir. Ct. 1997) (plaintiff’s treating doctor would not be allowed to give expert testimony on causation).
• Ramsey v. Woodward, 71 Va. Cir. 145 (Fauquier County, 2006) (Holding that a party, through discovery, can compel the production of medical opinions that were contemporaneously given with medical treatment of a Plaintiff. However, where a physician provides a response letter to an attorney in litigation, the response is, by its very nature, is unrelated to the medical treatment provided. Testimony given by doctor based on litigation letter was excluded).

H. Va. Code 8.01-44.2 – Immunity for Vaccines

This statute extends immunity of the Federal Vaccine Act to physicians and other persons administering vaccines on behalf of physician which causes vaccine related injury or death compensable under the Federal program, unless gross negligence is involved.

Va. Code § 38.2-2228 (Medical malpractice reporting).

Free Consultation:

Requires the insurer of a healthcare provider to report to the bureau of insurance any settlement or final judgment of a malpractice claim.

If you have questions about Virginia law or if you or a loved one have been abused or neglected by a health care provider, call us for a free consultation.

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