Virginia Medical Malpractice Law

What is Medical Malpractice

Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.

A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.

Medical Negligence

Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,

  • Failure to diagnose a medical condition or disease,

  • Misdiagnosis of a medical condition or disease,

  • Failure to provide medically appropriate treatment,

  • An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;

  • Mistakes in the prescription or dosing of medication.

Informed Consent

Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.

Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.

Damages in Virginia Malpractice Cases

Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.

Damages Caps

Some states limit the amount of money that a person injured by medical malpractice can recover as compensation for non-economic damages. In Virginia, the total amount recoverable in a medical malpractice action, including both non-economic (pain and suffering) and economic (out-of-pocket financial costs) damages, is capped by statute, without regard to the severity of a patient's injuries, based upon the date of the act or occurrence underlying the claim. For claims that arise between July 1, 2015 and June 30, 2016, the cap is $2.15 million. For claims arising between July 1, 2016 and June 30, 2017, the cap is $2.25 million. The cap increases on an annual basis through June 20, 2031, after which the cap is fixed by statute at $3 million.

Joint and Several Liability

When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy, followed in Virginia, helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. Vermont also permits separate actions against joint wrongdoers, such that an injured party may successively sue joint wrongdoers until judgment has been rendered against or the cause is otherwise disposed of in relation to all wrongdoers. No bar exists against a further action by reason of a judgment against another joint wrongdoer, until the judgment has been satisfied.

The Collateral Source Rule

Under Virginia's collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages.

The Statute of Limitations for Medical Malpractice in Virginia

The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. Virginia's statute of limitations for medical malpractice cases is two years from the date of the occurrence underlying the complaint, but not more than ten years from that date unless the plaintiff is under disabililty. For a case involving a foreign object left inside a patient's body, the statute of limitations is one year from the date the presence of the object is discovered or reasonably should have been discovered. For cases involving fraud, concealment or intentional misrepresentation that prevents a plaintiff from discovering the injury within the two year period, the statute of limitations is two years from the date that the injury is discovered or reasonably should have been discovered. For a case involving the negligent failure to diagnose a malignant tumor or cancer, the statute of limitations is one year from the date the diagnosis of a malignant tumor or cancer is communicated to the patient by a healthcare provider.

For minors under the age of eight, a malpractice action may be filed until the minor's tenth birthday. For minors ove the age of eight, a malpractice action must be commenced within two years of the date of the last act or omission giving rise to the minor's cause of action.

Additional Rules for Virginia Malpractice Cases

Additional rules affecting malpractice litigation in the State of Virginia include:

Alternative Dispute Resolution

In Virginia, at any time within thirty days of the filing of a responsive pleading in an action for medical malpractice, any party to the action may request that the cause be reviewed by a medical review panel. The case is stayed during the pendency of the medical review process. Once a panel is requested and its members are selected, the party requesting panel review may withdraw that request only with the consent of all other parties, or with the leave of the judge presiding over the panel. Each panel is comprised of two impartial attorneys, two impartial healthcare providers who are both licensed by and practicing in the Commonweath of Virginia, and the judge of the circuit court in which the action was filed. The judge may not vote, and need not attend or participate in the panel's deliberations. Discovery may be allowed for a period not to exceed 120 days from the date the pnel is requested. The parties are to submit evidence to the panel, and when a hearing is held the panel may hear oral testimony.

Within thirty days of receiving all evidence, after joint deliberation, the panel must issue a report finding that the evidence does not support a finding that the health care provider failed to comply with the governing standard of care, that the health care provider failed to comply with the standard of care and the failure is a proximate cause of the plaintiff's damages, that the health care provider failed to comply with the standard of care but the failure was not a proximate cause of the plaintiff's damages, or that there is an issue of fact that bears on liablity, not requiring expert opinion, that must be considered by a court or jury. If the panel finds that the healthcare provider's negligence caused injury to the plaintiff, the panel may determine the nature and extent of any disability or impairment suffered by the plaintiff that resulted from the defendant's conduct. Any panel member may dissent from the report.

Unless the parties otherwise agree, the panel must render its opinion within six months of the designation of the panel. The opinion of the panel is admissible as evidence during any subsequent litigation, but is not conclusive. However, if the panel fails to meet the deadline for the completion of its report, its report will be inadmissible in evidence unless the failure to meet the deadline was caused by a delay on the part of the plaintiff. Any member of the panel, excluding the judge, may be called as a witness during subsequent litigation, at the cost of the party that calls the panel member as a witness.

The parties may also agree to submit a medical malpractice case to binding arbitration.

Certificate of Merit Rules

For a Virginia medical malpractice action, at the time the plaintiff requests service of process or acceptance of service of a complaint, judgment, counter-claim or third party claim, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, that action is deemed a certification that the plaintiff has obtained from an expert whom the plaintiff reasonably believes would qualify as medical expert witness a written opinion signed by the expert that, based upon a reasonable understanding of the facts, the defendant upon whom the matter is to be served deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed by the plaintiff. 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. Any defendant may request in writing a formal, written certification by the plaintiff and the court may conduct a review to ensure that the plaintiff complied with the certification requirement. If the court finds that the plaintiff did not comply, the court may impose sanctions and may dismiss the case with prejudice.

Medical Expert Witness Restrictions

In Virginia, a proposed expert witness is deemed qualified to testify as an expert on the standard of care in a medical malpractice action if the witness 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. 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 the Commonwealth of Virginia.

Any physician or nurse who is licensed to practice in Virginia is presumed to know the statewide standard of care in the specialty or field of medicine in which that doctor or nurse is qualified and certified. The same presumption applies to any physician who is licensed in another U.S. state and who meets the educational and examination requirements for licensure in Virginia. The presumption also applies to any nurse licensed by a state participating in the Nurse Licensure Compact.

Apology Law

An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Under Virginia's apology law for medical malpractice actions, the portion of any statement, writing, affirmation, benevolent conduct, or benevolent gesture expressing sympathy, commiseration, condolence, compassion, or a general sense of benevolence, together with any apology that is made by a health care provider or the provider's agent to the patient, or to the patient's family or representative, is be inadmissible as evidence of an admission of liability or as evidence of an admission against interest. However, a statement of fault that is made in part or in addition to such an expression of apology remains admissible.

Why Consult a Medical Malpractice Lawyer

If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.

Copyright © 2016 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Feb 15, 2016.