Medical Malpractice in Virginia

A standard of care governs medical providers. The standard is determined by the level of care that an average professional in that area and specialty provides. To determine the standard, medical professionals and legal experts analyze the level of care other providers offer in the same circumstances.

Most healthcare providers adhere to the standards put forth. They do their best to provide proper care for their patients, but some are negligent. Breaching the standard of care puts patients at risk and can cause debilitating, and in some cases life-threatening, injuries. When the standard has been breached, and a patient is injured, he or she can file a medical malpractice claim in Virginia.

Proving a Medical Malpractice Claim

The burden of proof rests on the claimant’s shoulders when filing a medical malpractice claim. Attorneys investigate the claim to provide the necessary evidence. Claims must meet four criteria to be successful.

First, the claimant must prove that the standard of care was in effect when the patient was injured. Second, the health care provider must be the person who breached the standard. Third, the injury must be caused due to the breach. Fourth, the plaintiff must have suffered damages.

All four components must be proven, or the case can be dismissed. Fortunately, the attorney can determine if all four criteria can be met before moving the case forward.

Investigating a Virginia Medical Malpractice Case

Some patients had an undesired outcome even when the standard of care was met. If that occurs, the patient does not have a cause for a medical malpractice claim. To determine the strength of the case, the attorney must analyze the medical records. The attorney will also reach out to experts to pour over the facts of the case. Upon proper investigation, the attorney will tell the injured party if he or she has a solid case. If so, the attorney can file the claim on the person’s behalf.

Statute of Limitations for Taking Medical Malpractice Actions

Va. Code Ann. § 8.01-243(A) and 8.01-244 set the statute of limitations for filing a medical malpractice claim at two years from the cause of action. Also, state law requires that wrongful death claims must be filed within two years of death.

While the statute of limitations is generally two years, the state has a discovery rule in place. This rule extends the statute in some cases.

Patients do not always discover their injuries immediately. Symptoms can take months or even years to manifest. The two-year clock does not start running until a patient should have discovered the injuries. However, there is a limit to the rule of discovery, too. Patients only have 10 years from the date of the incident to file a claim, even if they discover the injuries later.

The statute of limitations is a bit different when a foreign object is left in the body. Patients have one year to file a claim after discovering the object. The law also states that patients have one year after they should have found the object.

The state also has a statute of limitations for minors. If a child under the age of eight is injured due to medical malpractice, the claim must be submitted by the child’s 10th birthday. If the child is eight years or older, the suit must be filed within two years.

Virginia’s statute of limitations laws are some of the most confusing of all the states. Injured parties are encouraged to speak to an attorney if they think they have a claim. Many believe the clock has run out on filing a claim, only to have an attorney find an exception to the rule. It is critical to speak to an attorney as soon as the party wants to file a claim.

Contributory Negligence

Most states follow the rule of comparative negligence. This allows litigants to recover damages, even if they were partially at fault for the injuries. The court determines the degree of responsibility for the defendant and the claimant and reduces the damages awarded based on the determined fault. States that follow this rule set a bar for recovering damages. In many states, claimants must be 49 percent or less at fault to recover damages.

Virginia does not follow this law. Instead, the code of Virginia requires the courts to use the law of contributory negligence for medical malpractice claims. Patients cannot be assigned any of the faults to get damages awarded. If the patient contributes to the injuries in any way, he or she cannot file a claim.

There is one exception to this rule. When negligence occurs before or after the malpractice, the patient can still recover damages. For example, assume a physician misdiagnoses a lump. The patient goes home, and the lump begins to grow. It gets larger and larger, but the patient puts off getting a second opinion for two months. Failing to get a second opinion makes the condition worse and injures the patient. However, the patient did not make that decision at the time of the misdiagnosis, so the rule of contributory negligence does not apply. The patient can still seek damages.

Recovering Medical Malpractice Damages From Multiple Providers

Virginia has a law for joint and severe liability on the books. This law protects patients who have been injured by multiple providers but cannot prove how much damage each provider caused. The claimant can hold each provider equally responsible and collect damages from each one. Like most malpractice laws in the state, joint and severe liability is confusing for the average layperson. Attorneys help claimants file the necessary paperwork to recover damages from each provider.

Birth-related Injury Claims

In most states, birth injury claims fall under medical malpractice. While some birth injuries fall under malpractice in Virginia, the Birth Act was passed to create an exclusive remedy for some injuries. This act created a special fund for children with neurological injuries caused by malpractice. Injured parties can receive money from the fund to compensate for a neurological injury without going through the court system.

Malpractice Against Government Institutions

Virginia extends special governmental immunities to malpractice claims. Providers who work at governmental institutions might not be liable in malpractice cases. The courts determine when to extend immunity. Immunity is typically granted if the defendant’s work has a government objective and if the state has an avid interest in the provider’s function. The provider must have also acted with discretion. While immunity is often given, there usually is an exception when the injuries are severe. In this case, plaintiffs can typically sue for compensation. These cases are exceptionally complicated, and an experienced attorney is needed.

Holding the Employer Accountable

Virginia law allows plaintiffs to hold employers accountable for medical malpractice under its vicarious liability doctrine. Vicarious liability means that the employer is responsible for a worker, as long as the employee was at work and working within the scope of the job at the time of the injury.

For example, if a physician operates on the wrong leg during surgery, the patient can sue both the hospital and the surgeon. The patient can recover damages from both parties.

Expert Testimony to Prove the Personal Injury

Expert testimony is typically a requirement for filing medical malpractice cases. To qualify as an expert, a witness must meet three criteria.

First, the witness must have expert knowledge in the field in question. Second, the expert must have worked in clinical practice for the specialty in question within a year of the malpractice. Third, the expert must have expert knowledge of the required standards of care in that field.

The expert witness’s testimony must prove two things. The expert needs to confirm that the provider breached the agreed-upon standard level of care due to omission or negligence. Second, the witness must prove that the breach caused the injury. The causation must be direct.

Both plaintiffs and defendants are limited to two expert witnesses during the trial. However, they can call as many health care providers as they wish to prove their cases. Attorneys typically bring forward lots of witnesses to build solid claims against providers and facilities.

The Damage Cap in Malpractice Cases

Most states implement recovery caps for non-economic damages in malpractice cases. Virginia takes it a step further by implementing caps for all damages, including economic losses. Injured parties need to understand the damage caps before moving forward with their cases.

Recovery Caps for Economic Damages

Patients who suffer injuries at the hands of a health care provider have economic damages. Economic damages include medical expenses, lost wages, and diminished earning capacity. Virginia capped financial losses at $2 million in 2012. The state will increase the cap by $50,000 a year through 2031. In 2031, the cap will be $3 million, where it will stay unless the state decides to increase it. Patients cannot recover more than the cap, even if they have lost more money.

Recovery Caps for Non-economic Damages

Patients also suffer intangible damages when harmed by a medical provider. Non-economic costs are typically defined as pain and suffering. This refers to the emotional and physical distress the patient suffers due to the injury. Non-economic damages are more difficult to prove because of the subjective nature. However,  a skilled attorney can help wronged parties recover these damages.

Virginia also has a cap in place for non-economic damages. This is set at $2 million.

Recovery Caps for Punitive Damages

Punitive damages are only awarded when the court feels the defendant acted in a way that was reckless, malicious, or fraudulent. These damages are limited at $350,000. An attorney can help people recover punitive damages if the situation meets the criteria.

Mediation for Malpractice Claims

Medical malpractice claims do not have to go to mediation under Virginia law. However, many parties choose arbitration in an attempt to avoid a lengthy trial. A neutral mediator presides over mediation. Along with the mediator, the defendant and claimant are present along with their attorneys. The mediator will attempt to help both sides reach a settlement. If the parties reach a settlement, the attorneys will finalize it and close the case. However, if the case is not settled, it will continue to move forward.

Requesting a Review Before Going to Trial

The plaintiffs and defendants also have the option of requesting a review of the case. A medical malpractice review panel has the power to conduct hearings and review the evidence. The group will determine if the standard of care was breached and if it caused the injuries. Time is of the essence when requesting a review. Plaintiffs and defendants have 30 days after the defendant’s responsive filing to request it.

The review panel does not make a binding decision regarding the case. However, the attorneys can present the panel’s findings during the trial. It can also help with the settlement negotiations. After the review, both parties might be willing to settle the case out of court to avoid trial.

Staring the Legal Process to Prove Medical Negligence

If the parties do not settle, the plaintiff’s attorney begins the legal process to initiate the case. While this process brings the case closer to going to court, it is still possible to settle before it makes it to the courtroom.

The attorney files a claim with the appropriate court. The claim includes an account of the negligent act, along with information regarding the injury. The claim also contains the damages the plaintiff wishes to recover. The attorney must also file an affidavit to initiate a claim. The affidavit explains that the healthcare provider failed to provide a standard level of care, and that caused an injury. The affidavit proves the merit of the case and is signed by a medical expert.

Discovery

Discovery is the most critical aspect of preparing for a case. During this stage, attorneys from both sides gather evidence to use for a settlement or trial.

Attorneys depose the plaintiff, defendant, and witnesses during this stage. The plaintiff can bring an attorney to the deposition. The attorney provides legal counsel during the deposition.

Along with deposition, the discovery stage can include a release of records and documents and a physical examination. The physical examination is used to back up the medical records provided by the plaintiff.

Settling a Case

Next, the case goes to pretrial litigation. This consists of meetings and motions that take place before the trial. The attorneys present facts of the case and also identify their witnesses and evidence. Often, the parties settle during the pretrial litigation. Plaintiffs are not required to accept settlement offers from defendants.

Receiving a Settlement

If a settlement is reached, the plaintiff can choose how to receive the payment. Plaintiffs usually select lump-sum or structured payments.

Lump-sum payments are selected when the plaintiff wants to receive the total amount of the award at once. This is the most common because of the simplicity.

Structured payments are paid out on a schedule. This option is more complex than lump-sum payment but typically selected in two situations. If the claimant is under the age of 18, the parents might choose structured payments. Also, if the person is likely to have healthcare costs over the long term, this option allows them to continue to provide for their care. They do not have to worry about the money running out.

Settlement checks are mailed to the attorney that represents the plaintiff. The attorney places the checks into an escrow account. The attorney then withdraws the legal expenses and compensates the plaintiff.

Taking a Medical Malpractice Lawsuit to Trial

Most cases settle out of court. However, an experienced medical malpractice attorney is always ready to go to court. If the case is not settled, a court date will be set, and the parties will attend the proceedings.

The trial begins with opening statements. Both sides argue their cases during opening statements. The prosecution will explain how the healthcare provider injured the patient while the defense attorney will attempt to discredit the claim.

Next, the malpractice attorney will present the plaintiff’s case. The attorney will call an expert witness to validate the claim. The expert witness will help the attorney prove that breaching the standard level of care was the proximate cause of the patient’s injury. The attorney will also call other witnesses to the stand. The defense can cross-examine the witnesses.

Once the prosecution rests, it will be the defense’s turn. The defense will likely use one of three strategies.

It might claim that the provider was not negligent, so this is not a case of malpractice. Second, it could state that while the patient suffered injuries, they were not the direct result of the provider’s actions. Third, it could say that the plaintiff is also to blame.

The prosecution will cross-examine the witnesses, trying to discredit them. After the last witness is finished, both attorneys will provide their closing arguments. Then the case will go to the jury. The jury will deliberate and deliver the ruling.

The Appeals Process

Once the ruling is issued, the losing party has the opportunity to file an appeal. If the petition is granted, the Supreme Court of Virginia will review the evidence. Appeals are only allowed when a legal error occurs. For example, if the ruling is unconstitutional, the case can be appealed.

Choosing a Medical Malpractice Attorney

Due to the complexity of medical malpractice cases, claimants are encouraged to hire an attorney. The victim of medical malpractice can hire an attorney, or in the case of wrongful death, the loved one can hire representation to recover damages.

The attorney is primarily an advocate for the injured party. The attorney gathers the necessary evidence to ligate the claim. A seasoned attorney can even help patients qualify for more damages than they previously expected. This is critical for those who have ongoing health issues due to the injury.

Some choose to avoid getting an attorney due to financial reasons. However, along with a free consultation, many malpractice attorneys charge a contingency fee. That means that the plaintiff does not owe the law firm any money until the case is resolved. The attorney will charge a percentage of the damages that the plaintiff receives.

Hiring an attorney should be the first step people take after suffering injuries due to malpractice. The attorney will fight for them and help them reach the desired outcome.

Damage Caps in Virginia

The current damage cap for all damages is $2.55 million (for judgments entered from July 1, 2022, to June 30, 2023), increasing by increments of $50,000 for each 12-month period. The cap applies to all causes of action that occurred on or after August 1, 1999.

See Damage Caps by Each State