In the past decade alone the term medical malpractice has been a constant feature in many lawsuits against hospitals, healthcare facilities as well as health care providers. While there is a general overview of what medical malpractice is, it is important to be aware of the legal provisions available in order to sue for medical malpractice. This article will discuss medical malpractice laws and statutory rules in Virginia.
According to a medical news site, “medical malpractice occurs when a healthcare professional or provider neglects to provide appropriate treatment, omits to take an appropriate action, or gives substandard treatment that causes harm, injury, or death to a patient”. Therefore, medical malpractice law arms patients with the ability to receive compensation for any harm that is as a result of substandard treatment.
The state of Virginia provides for medical malpractice laws and rules under the Virginia Medical Malpractice Act. Speak to a medical malpractice attorney in Virginia for more information on the Act. Some noteworthy aspects that it provides for include the following:
Statute Of Limitations
The law distinguishes between medical malpractice cases that result in injury and death when it comes to determining the statute of limitations. In cases where medical malpractice results in injury a plaintiff has two years from the date of the injury to file a personal injury claim. That statute typically starts when the person is aware or should have been aware of the initial injury. See Va. Code 8.01-243. Link (§ 8.01-243. Personal action for injury to person or property generally; extension in actions for malpractice against health care provider (virginia.gov). There are exceptions to this rule in cases in which fraud, concealment or intentional misrepresentation prevented discovery of the initial injury. Also in cases resulting from sexual abuse occurring during infancy or incapacity, there is a 20 year statute of limitations.
For cases involving wrongful death, any lawsuit in this regard must be filed within two years of the date of death. The statute starts running on the date of death. Before a family member can bring a lawsuit, they must first be qualified as an administrator. See Va. Code § 64.2-454.
Where parents are seeking the reimbursement of medical expenses for their children injured in a medical malpractice case, such legal action must be initiated within five years of the injury. This is applicable specifically to parents seeking medical expenses. However, in cases where the parent is seeking both expenses and damages for their child, the case must be filed within two years of the last act of negligence.
Medical Malpractice limitations on Recovery, Va. Code § 8.01-581.15
Like many states, Virginia imposes limitations or caps on recovery in malpractice cases. For cases filed after August 1, 1999, the cap for actions filed in 2021 is $ 2.45 million. It goes up five thousand dollars a year until 2031, when the cap will be $2.95 million. This cap covers both economic damages (medical expenses and lost wages) as well as non-economic damages (pain, physical suffering, mental suffering, disfigurement, sorrow and loss of solace, etc.).
Certificate of Expert Requirements
Before a Plaintiff can pursue and serve a malpractice complain in Court, the attorney must obtain a certificate of merit from a qualified expert stating that the Defendant deviated from applicable standards of care and that such deviation was the proximate cause of injuries. Va. Code § 8.01-20.1. There is an exception that applies to cases where the alleged negligence is so obvious that is lies within the range of a juries common knowledge and experience.
Privileged Communications
In malpractice cases healthcare providers may assert privileges to prevent the disclosure of what they consider to be confidential information. Va. Code 8.01-581.17. Typically these are limited to communications sent to a quality assurance committee or similar group charged with improving the health care provider’s responses to health care problems. This privilege is sometimes improperly asserted and attorneys should challenge Defendant’s attempt to prevent the disclosure of factual information regarding a particular incident. See Riverside Hospital v. Johnson, 272 Va. 518, holding that incident reports describing the factual circumstances of a fall had to be produced to the Plaintiff, even if they were sent to a quality assurance committee.
Standard of Care Testimony and limitations of Experts, Va. Code 8.01-581.20
In a Virginia malpractice case, the standard of care by which acts or conduct is evaluated is to be judged is that degree of skill and diligence practiced by a reasonably prudent practitioner in the field or specialty of the Defendant. A local standard of care can be applied where it is shown that the local practice gives rise to a standard which is different from the statewide standard.
In any malpractice case, no party may designate more than two experts per medical discipline on any issue presented.