What Is the Statute of Limitations in Virginia to File a Medical Malpractice Claim?

Unfortunately, medical errors are prevalent in the U.S., leading to the deaths of more than 250,000 patients per year, according to some data sources. When a patient is harmed or killed due to a healthcare professional’s mistake, the patient or surviving family members may be eligible for compensation through a medical malpractice claim. At Lichtenstein Law Group PLC, our experienced attorneys can help you to understand the basics of a medical malpractice claim, including the statute of limitations that applies to these specific lawsuits, operating as a deadline by which to file suit.

What Is a Medical Malpractice Claim?

When a party causes harm to another person through an act of negligence, the injured party has a right under Virginia law to bring a personal injury claim against the negligent party. If a medical professional causes harm to someone as a result of failing to meet the medical standard of care owed to that person, it is called medical malpractice. 

If you have been harmed by a doctor’s actions, you may be entitled to bring a claim for damages against that physician. This type of claim requires proof that the doctor breached the standard of care owed to you, along with proof that the breach was the proximate (direct) cause of your damages. 

What Is a Statute of Limitations?

You may have the right to bring a medical malpractice claim when a doctor’s error leads to your harm. However, you are limited in the amount of time you have in which to actually file the lawsuit. This is called the statute of limitations.

Civil statutes of limitations are designed to limit the time frames in which a lawsuit may be filed, as well as to ensure that evidence does not become dated or destroyed. If no lawsuit is filed before the statute of limitations has expired, a plaintiff will lose the legal right to pursue damages (recovery). 

In addition to statutes of limitations, which prevent recovery after the applicable deadline is passed, there are other laws that sometimes require legal action prior to the statute of limitations deadline. Failure to meet these requirements can also prevent recovery, so these deadlines should also be assessed by a medical malpractice attorney along with the applicable statutes of limitations.

The Statutes of Limitations for Virginia Medical Malpractice Claims

The general statute of limitations for a medical malpractice claim in Virginia is only two years from the date that the act of malpractice occurred.  As explained above, sometimes legal action, including the giving of certain notices, is required as soon as six months or one year after the injury caused by medical malpractice. Failure to act as required can also bar recovery. Virginia law also has many exceptions to the general rule of a two-year statute of limitations. If an exception applies, a plaintiff may be able to bring a medical malpractice action after the two-year statute of limitations has expired. 

Longer Time Limits for Filing a Virginia Medical Malpractice Claim

In some cases, it may be possible to stop, or “toll,” the statute of limitations. In other words, the clock does not run during the tolled period. In other cases, the statute of limitations may extend beyond two years. The Virginia Code provides for certain circumstances in which the time period for filing a medical malpractice claim in Virginia may extend beyond two years. Consider the following:

Wrongful Death

When the medical malpractice injury results in the patient’s death, the executor or administrator of the estate may be able to file a wrongful death lawsuit against the negligent health care provider. The statute of limitations in a wrongful death claim is two years from the date of the patient’s death. So, if the patient battles his or her injuries for an extended period of time, the party filing the wrongful death lawsuit may end up filing a claim several years or more after the patient’s initial injury.

Child Injury

When a child suffers harm due to medical malpractice, the statute of limitations works a little bit differently. Under the Virginia Code, if the patient is under the age of 8 at the time of the injury, that patient has until he or she turns 10 years old to file a medical malpractice claim. For example, if the child suffered an injury at the age of 2, that child would have until his or her 10th birthday to file a lawsuit. So, the statute of limitations would be extended to almost eight years. For instance, many children suffer harm due to the negligence of medical professionals during pregnancy or during labor and delivery. For medical malpractice that occurs during these time frames, the statute of limitations creates a deadline to file suit on or before the child’s tenth birthday. 

Foreign Objects

When a foreign object is left inside the body of a patient, and the patient does not discover the medical mistake and injury immediately, the statute of limitations may be extended. Specifically, the statute of limitations may be extended to one year from the date that the patient discovered, or reasonably should have discovered, that the foreign object such as a sponge from a surgical procedure was left inside of the patient. Typically, this discovery occurs when a doctor diagnoses the cause of an infection or other illness caused by the foreign object. Regardless of how long it takes a patient to discover the foreign object, the statute of limitations in such a case is capped at 10 years from the date of the negligent act.

Fraud or Concealment

When a health care provider’s fraud, concealment or intentional misrepresentation prevents the patient from discovering an injury immediately, the statute of limitations is extended to one year from the date that the injury actually is discovered or should have been discovered through due diligence.

Failure to Diagnose

A claim for medical malpractice is based on the negligent failure to diagnose a malignant tumor; cancer; or an intracranial, intraspinal, or spinal schwannoma, in which case the statute of limitations is extended for one year from the date the diagnosis of the condition is communicated to the patient (up to a ten-year maximum extension). Some of these claims, however, fall under a different statute of limitations depending on when the original negligence (malpractice) occurred, and this extension may not apply. 

Statute of Limitations for Virginia Tort Claims Act Cases

When a patient suffers an injury as a result of the negligence of a healthcare provider who is employed by the Commonwealth of Virginia, the medical malpractice claim typically must be brought under the Virginia Tort Claims Act. Under this law, the claim typically must be brought within one year from the date when the medical negligence caused injury. Health care providers who are  employees of the Commonwealth of Virginia include those who work for:

• University of Virginia Health System
• Virginia Tech Health Center
• Virginia Commonwealth University (VCU) Health System.

These providers and any other healthcare provider who is employed by a public institution or a government medical facility would need to be sued under the Virginia Tort Claims Act for medical malpractice. The one-year statute of limitations would apply to the claim.

Compensation Available in Medical Malpractice Claims

Your medical malpractice lawsuit will be allowed to proceed if your medical malpractice claim in Virginia is filed within the statute of limitations period and all required notices are timely provided. Common types of recoverable damages in a medical malpractice claim include past medical expenses, future medical expenses, rehabilitation and therapy costs, lost wages, future lost wages, pain, suffering, emotional distress, disability, and diminished quality of life. It is important to work with a law firm that will thoroughly review your case and carefully assess the amount of potential damages available to you.

Our Virginia Medical Malpractice Lawyers Are Here to Help You

At the offices of the Lichtenstein Law Group PLC, we provide free consultation to answer all of your questions about the medical malpractice claims process in Virginia, ranging from details about the statute of limitations to what types of evidence you will need to establish your case for damages. Our goal is to provide you with support, guidance, and aggressive representation throughout your medical malpractice case.

We are experienced medical malpractice lawyers who have a reputation for being tough negotiators and tough trial lawyers. To learn more about how we can serve you, please connect with us by phone or online today. We can provide a free initial consultation through our conveniently located offices in Roanoke and Charlottesville. 

Know more about Medical Malpractice Basics.