Virginia Medical Malpractice Laws

A medical professional’s occupation entails improving the health of their patients. Those who pursue these occupations spent extensive periods of time studying in school, and training in their specialized fields of medicine before becoming licensed to legally practice. With this experience, medical professionals are expected by their patients to competently operate in their positions. This consists of physicians providing accurate diagnoses, obstetricians making the appropriate calls to deliver a child, or even a surgeon to follow the procedural process of undergoing an operation. In whatever form the standard of reasonable care is set, patients have every right to want their doctor’s to live up to the expectations practitioners were trained to sustain.

However, as fallible human beings, sometimes medical professionals may fall short. And when these shortcomings occur, people who only wished for their health to improve are pinned with an additional laundry list of medical expenses, appointments and inconveniences that could have been prevented if a medical professional did not make a mistake.

If you are considering filing a medical malpractice claim for your injuries, or harm inflicted on a loved one, it’s important you commence the litigation process as soon as possible. Every state, including Virginia, has provided a limited amount of time for victims to file malpractice claims, and there are a number of steps one must take before heading to trial. This page will provide insight as to how to file a claim, what to expect in the litigation process and the laws applied to a medical malpractice claim in your state.

Suing for Medical Malpractice in Virginia

The outcome of a successful medical malpractice civil suit is dependent on numerous factors. Since no two malpractice cases are the same, individualized factors may come into play in the pursuance of your case. These elements determine if a case will be upheld in a court of law or dismissed. It’s important to note that merely proving that you were injured due to the negligence of a health care provider is the least difficult component in navigating a malpractice claim. With the help of a seasoned attorney and expert witness, the likelihood of building a viable case is increased exponentially. Also, acquiring a realistic observation of the things you may have done to contribute to the worsening of your injuries, if any, is helpful in calculating a fair estimate of the damages you’ve endured. Any contributions to your injury is especially significant in the state of Virginia. It adopted a pure contributory negligence doctrine, which strips a victim’s eligibility for compensation if it is discovered that they contributed to their injuries in any way, shape, or form.

Fortunately, many medical malpractice cases are settled before litigation is commenced. An attorney will aid you in garnering evidence and facts in a case that acquaint apparent liability on the opposing counsel. However, your attorney can not act alone. Your detailed and coherent account of prior events and any information collected involving the malpractice is pivotal in advancing your case through the phases of litigation. Collecting any receipts, medical expenses, prescriptions, documented time missed from work or any shred of information that would be deemed valuable in your case. Remember, although malpractice cases seem simple, they rarely are. Proving that the negligent act was the proximate cause of your injury while demanding your receive the proper compensation from defendants can be an awfully confusing and strenuous task. Selecting a well-versed Virginia lawyer will relieve some of the stress you’ve acquired from mentally and physically coping with an unwarranted injury.

How long do I have to file a medical malpractice case in Virginia?

Legislators in each state have implemented distinct laws permitting an allotted time for citizens to file civil claims. The quantity of time permitted by the state depends solely on the nature of the claim as well as the individualized regulations existing in an area; this is called the statute of limitations. In Virginia, the time granted to file a medical malpractice claim is relatively short, giving claimants two years from the day the negligent act occurred to file.[1] However, there are specific stipulations and rules that back victims if they may not have realized they were injured within the given time frame.

Of these stipulations is the rule of discovery. States that have chosen to abide by this rule take into account the complexities that may hinder a victim in the process of discovering their injuries. Lawmakers in Virginia are aware that the emergence of symptoms as a result of malpractice may not occur as quickly as the statute of limitations suggests. The effects of malpractice on the body may take days, weeks, and years to appear. So, this rule -which launches the two-year countdown when a victim has reasonably, or should have reasonably discovered their injuries – protects oblivious claimants from losing out on their constitutional right to receive a legal remedy for the harm inflicted on them. Although the discovery rule allows for some leniency within the statute of limitations, the complete cut off date for a file to be claimed is 10 years from the date the malpractice transpired. If a person files a claim outside of the statute of limitations and cannot prove that they weren’t, and could not have been aware of their injury within the two years designated by the state, their option to pursue legal recourse will not be available.

It’s important to note that claims seeking compensation for foreign objects left in the body must be filed within one year from the date that the object was, or should have been discovered. Claimants also have one year to file a claim against a state employee. Any minors under the age of 8 should have their claim filed by the date they turn 10 years old. In instances when the minor is older than the age of 8, they must file their claim within two years.

In Virginia medical malpractice cases, who is responsible?

Victims contemplating filing their claims within the allotted time permitted by the state must soon identify a defendant. The defendant(s) in a case is any individual, organization or entity that a victim believes is accountable for their injuries. In some cases, determining who is liable in a medical malpractice case can be complex. When most people visualize a situation involving malpractice, they most likely see a botched patient filing a claim against a surgeon or physician for making a mistake. However, malpractice comes in many forms with the opportunity for whole hospitals and organizations to be held liable, as well as doctors. This wide range of possible defendants in a case is deemed a “health care provider” in Virginia law.

According to Virginia statute 8.01-581.1, a health care provider is defined as a “person, corporation, facility or institution licensed by this Commonwealth to provide health care or professional services as a physician or hospital, dentist, pharmacist, registered nurse or licensed practical nurse of a person who holds a multistate privilege to practice such nursing under the Nurse Licensure Compact, nurse practitioner, optometrist, podiatrist, physician assistant, chiropractor, physical therapist, physical therapy assistant, clinical psychologist, clinical social worker, professional counselor, licensed marriage and family therapist, licensed dental hygienist, health maintenance organization, or emergency medical care attendant or technician who provides services on a fee basis.” [2]

Note that many of the occupations listed in this definition aren’t necessarily positions in a hospital or doctor’s office. There are numerous defendants from a wide range of sectors in the medical field that could be held liable for a plaintiff’s injuries.

What if I am partially to blame? Can I still recover money for VA medical malpractice?

The judicial system was designed to essentially resolve disputes and provide compensation for those who are victims of misconduct. However, thousands of prior cases have proven that oftentimes victims are deemed to hold a portion of responsibility for the injuries they’ve endured.

For example, let’s say you decide to consult with a doctor for a gastric bypass surgery to help you deal with an ongoing issue with type 2 diabetes. This procedure is known to be invasive and risky and poses an increased likelihood of causing complications for patients. You have a laundry list of long-term health problems that may increase the risks associated with having the surgery, like blood clots and kidney stones. When you and the doctor discuss prior surgical procedures, you leave out the operation you underwent for blood clots 20 years ago, because you feel like you won’t get cleared for the bypass surgery. After the consultation, the doctor takes your word and clears you without taking a look at a file containing your medical history. About a few weeks after the surgery, you are rushed to the hospital after suffering a pulmonary embolism which has damaged your organs. Doctors say your condition of “thrombus” or a blood clot, redeveloped after being triggered by the surgery. You will now have to undergo several other surgeries and be confined to a hospital bed for a while.

If you decided to pursue a claim for your injuries, there are three methods states are permitted to choose from when considering who is at fault in civil cases: pure contributory negligence, pure comparative fault, and modified comparative fault.

Pure contributory negligence

Virginia is one of five states that abides by the pure contributory negligence rule. When applied, this rule dictates that plaintiffs are not permitted to collect damages in a civil case if they are as little as one percent at fault for their injuries. So, in the scenario mentioned above, the court may deem you 30% liable for your injuries because you chose to omit the information about a past procedure, but find your doctor 70% liable because they didn’t check your medical history. Since you were found to somewhat contribute to your injuries, you will not receive any compensation. Other states that follow this rule are Alabama, Maryland, North Carolina and the District of Columbia. [3]

Pure comparative fault

Alternatively, states that adopt the pure comparative fault system have a more lighthearted approach to assigning fault. The pure comparative fault rule permits plaintiffs to collect damages for their injuries despite the portion of fault they contributed to their injury. So, if a court were to find you 99% at fault in the scenario mentioned above, you could still receive a bit of compensation for damages. Alaska Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Rhode Island, South Dakota and Washington apply this rule to their state civil cases.

Pure comparative fault has been heavily contended by skeptics who feel that it opposes nature of the judicial system. They believe that a person that heavily contributed to their injuries should not be rewarded. These opposing beliefs led to the adoption of the method of fault that falls directly in between pure contributory negligence and pure comparative fault: modified comparative fault.

Modified comparative fault

This method of assigning fault falls in between the two extremes addressed above. States that adopt that this doctrine determines that a plaintiff’s eligibility for compensation should be capped off when they are liable for a portion of 50% or 51% of their injuries.

States following the 50% rule include Arkansas, Colorado, Georgia, Idaho, Kansas Maine, Nebraska, Oklahoma, Tennessee, Utah and West Virginia. Which suggests that a plaintiff responsible for a portion of 49% of their own injuries or less will be eligible compensation. 50% of liability is deemed unacceptable for compensation by these states.

States following the 51% rule include Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin, and Wyoming. When applied, this rule enforces that a plaintiff found to be at least 50% responsible for their injuries are still eligible for compensation in civil cases.

Are there medical malpractice recovery caps in Virginia?

States have the ability to enforce or omit a statute that limits the amount of compensation a plaintiff can receive in a medical malpractice case. Virginia, along with dozens of other states have implemented a “cap” on compensation, despite the losses a victim may have suffered due to unwarranted injuries. What makes Virginia unique, is that its cap applies to all types of damages in a case, whether they be economic, non-economic or punitive. [4] Legislators proposed that these caps increase annually until the year 2031.

Economic damages refer to verifiable losses that can be directly linked to a health care provider’s negligence. These damages are usually tangible and can be simply translated to compensation by calculating the monetary value lost due to an unwarranted injury. Some examples of economic damages are medical expenses, diminished earning capacity, time spent away from work, loss of property etc. Currently, caps on economic damages are capped at $2 million.

Non-economic damages are losses that are considered intangible. In order to receive money for these types of damages, a plaintiff must convince the jury that they’ve suffered mentally and emotionally because of the defendant’s mistake. Since an individual’s emotions and psychological state are subjective, it may be difficult for the jury or judge to assign a dollar amount to non-economic damages. A couple examples of non-economic damages are pain and suffering, emotional distress, disfigurement, loss of companionship, loss of consortium and the degradation of a victim’s quality of life. Right now, monetary limits on non-economic damages are capped at $2 million.

Punitive damages, also known as exemplary damages, are often rewarded to teach the defendant a lesson and prevent potential future defendants from committing similar acts of negligence. These types of damages are awarded when the court decides those responsible for a plaintiff’s injuries acted in a way that was malicious, reckless or fraudulent. In Virginia, the total amount awarded for punitive damages shall not exceed $350,000. [5]

Expert witness reporting and testimony

There must be the testimony from an expert witness in all medical malpractice cases in each state. Virginia defines an expert witness as any health care provider that is able to establish the “standard of care.” A person qualifies to give an expert testimony when he or she:

• Has, within one year of the date the malpractice occurred, had “active clinical practice” in the same specialty related field of medicine in which the defendant health care provider practices, and

• Can demonstrate “expert knowledge of the standards” of the specialty or field in which the defendant health care provider practices [6]

The testimony of an expert witness is needed for a successful outcome in a medical malpractice case. The expert witness’ testimony must coherently address that:

• There was a breach of the standard of care by the negligence act or omission that caused the plaintiff’s injury; and
• The deviation from the standard of care was the direct cause of the injury

Specifications in Virginia law dictate that neither the plaintiff or defendant in a trial is able to provide, designate, identify or call to testify more than two expert witnesses per trial. However, there is no limit to the number of health care providers that can be called during trial.

The standard of care is also defined in Virginia statutes. Essentially, it states that this standard is breached when a health care provider in the same field of medicine with the appropriate degree of skill and diligence would not have not committed similar or the same error if given the same circumstances. [7] The law also mentions that any health care provider licensed to practice in the state is presumed to know the applicable standard of care in their specialized practice or field.

For example, let’s say a sponge was left in your body after undergoing an operation. The expert witness must prove through testimonials that a competent surgeon given these similar circumstances would not have committed the negligent act that your doctor ensued.

Are some parties immune from medical negligence cases?

Doctors employed by the Commonwealth of Virginia are provided with the defense of sovereign immunity when sued for medical malpractice. If a doctor has a strong relationship in the Commonwealth’s governmental objectives, acted with discretion, and the Commonwealth has an avid interest in the doctor’s function, they may be protected from engaging in legal recourse. However, in severe cases, the courts may decide that a doctor will not be exempt from being held liable for a victim’s injuries.

Settling medical malpractice cases in VA

Settling in civil injury cases is a common occurrence. However, a settlement may be more difficult to reach in claims involving malpractice. As with any injury claim, the defense only agrees to reach a settlement when the establishment of a merited case is presented. This is called the period of discovery. The process is initiated before trial, and allows each party – both the plaintiff and the defendant – and the legal representation advocating for them to negotiate. When the possibility of a settlement is likely, each party has different agendas that, if carried out successfully, will benefit their client. The defense’s aim is to minimize the amount of monetary compensation awarded by their client and avoid being a participant in a trial that will likely be unfavorable for them. While the plaintiff’s attorneys aim is to reach a settlement amount that is proportionate to the damages their client has suffered. Plaintiff’s and their attorneys have the right to determine if the settlement offered by the defense is reasonable. If a proposed settlement amount is deemed unreasonable, a medical malpractice attorney could take their chances in court.

A physician’s approval

One element in medical malpractices that distinguishes the nature of these claims from others is the final say. In Virginia, Physicians must thoroughly examine the facts existing in malpractice cases and approve them before a settlement can come into fruition. Operating contrarily to other personal injury settlement involving a slip and fall or a car accident, where a defendant’s insurance company must have the final say, whether the defendant agrees or not. Numerous databases and state reporting repositories were created with the sole purpose of tracking medical malpractice settlements, making malpractice settlements less confidential than other types of claims. When word is received that a prospective physician or practitioner is sued, their malpractice insurance may skyrocket, or their insurance carrier may feel inclined to drop them. Consequently, with their reputation and ability to practice on the line, physicians may put up a fight to prevent a plaintiff from recovering anything.

Methods of payment

Soon after a settlement has been reached, a monetary reward is set to be received for all the damages deemed legitimate in the negotiation process. Two common options for a plaintiff to collect their award are lump-sum payments and structured payments.

Lump-sum payment: This payment arrangement occurs when the plaintiff wishes to receive their monetary award all at once. Considered as the less complex method of payment by plaintiffs, lump-sum payments have become an increasingly popular way to collect a settlement.

Structured settlement: Alternatively, this method of payment is awarded on a periodic schedule arranged by the court. Structured settlements are mostly demanded in situations when the plaintiff is a minor, and are anticipating long-term health care expenses.

Each settlement check will be sent to a plaintiff’s attorney, who has the responsibility of depositing it into an escrow account. After all legal expenses are withdrawn, the plaintiff will be compensated. Since medical malpractice claims are often individualized, settlements have the ability to be a simple process or a puzzling one. It depends on the nature of the case, the attitudes of those involved and the facts presented.

Litigating medical negligence cases in Virginia

When a patient realizes that they are a victim of medical malpractice and has been injured, they pursue a claim. Once filed (hopefully within the statute of limitations in Virginia), the possibility of a settlement will be introduced. In cases when both parties hold dissenting opinions on the settlement amounts, or simply fail to agree on an amount, the case will proceed through the phases of litigation.

Initiating the case

Once this stage has been reached, it is presumed that the defendant, plaintiff and their respective attorneys have opted out of a settlement.

In Virginia, a civil case is initiated when a patient pursues a claim filed within the proper court system. Several courts in Virginia handle their distinctive cases. When first filing, the case will most likely go to the District Court, which handles general jurisdiction. Patients who wish to receive more than $10,000 will operate under the jurisdiction of the District Court. If a case is appealed in the district, it may be handled under the jurisdiction of the Supreme Court of Virginia, which is deemed the final court of appeals.

In a claim must be a descriptive account of the act of negligence or omission, along with details of the injury and damages one wishes to recover from the occurrence of malpractice. Along with this account, a form called an “affidavit” must be submitted. It contains signatures from several parties, including a medical expert, that affirms a claimant has discussed the breach of the standard of care with an expert. The affidavit confirms that talk of how the health care provider deviated from that standard and a direct injury stemmed from that act of negligence further proves that the case is meritable. Not filing an affidavit along with a personal account of actions will result in the dismissal of a claimant’s civil suit.

Upon the written request of the defendant, the plaintiff may be required to provide the affidavit to the defendant within 10 days. This usually occurs when the question of whether the case is meritable or not is posed. [8] The defendant has a responsibility to respond to a civil suit in 10 days.

Preparing for litigation

After the defendant has affirmed and sent their rebuttal to the claim, both sides and their legal representation will prepare for litigation. The discovery process, in which both the plaintiff and the defendant swap information pertaining to evidence and witnesses that may be called or utilized in trial. This process was commenced to prevent the phenomenon of “trial by ambush” – when one party is unaware of the other party’s witnesses and evidence, resulting in the failure of obtaining answering evidence and witnesses for testimonials.

During the discovery period, a method called a “deposition” is used to garner more evidence. When attorneys carry out this approach they obtain a testimony from a person involved in the case outside of a courtroom setting. It’s basically a testimony, but it isn’t traditionally witnessed by the judge, jury and parties within a courtroom. It’s presented in the form of a written transcript, videotape or comprised of both.

A deposition that takes place in a courtroom setting occurs when both parties are preparing for litigation. It involves a myriad of questions posed to the involved witnesses from opposing counsels. Attorneys are usually present to prepare their client’s rebuttals to these questions. Other methods of discovery include

• A subpoena, or requiring the opposing counsel to produce records and documents for inspection
• Requesting that documents and facts of a case be examined for genuinity
• The submittance of a physical examination

Pretrial litigation

This stage of litigation includes a number of conferences and motions. In meetings before a trial commences, also called a pretrial conference, the judge, magistrate and attorneys are present to simplify the facts of a case, identify documents and witnesses, schedule briefs and motions, as well as setting dates for another conference. In these mandated meetings is the opportunity for the defense to pitch the idea of a settlement. This phase is usually the longest and most drawn out part of the process. But if parties aren’t able to be on one accord, trial will most likely be the next step.

Trial

When a settlement is not officiated in the pretrial litigation period, the case will advance to the trial phase.

Opening statements from the plaintiff and defendant will kick off the trial. An opening statement is an opportunity for the legal representation of both parties to verbalize their intended intentions of how the trial should play out. Important case logistics and facts are explained in these statements given by prosecutors and defense lawyers.

After the opening statements, the court will call the plaintiff and other people involved in that party to testify and plead their case. In this part of trial, witnesses who wish to speak and back up the claims of a plaintiff will be called to convince the jury that the defendant is guilty.

Once the plaintiff’s party has finished presenting, the defense will plead their case. Its main goal is to sway the jury that no negligence occurred, the plaintiff’s injuries were not directly caused by the negligence of the defendant, or the plaintiff shares a portion of responsibility for their injuries. Other affirmative defenses could be potentially proven depending on the facts of the case.

When the defense is done presenting, both sides will provide their closing arguments. This statement is the last thing a jury will hear, so attorneys may save their most compelling and interesting observations and arguments for this statement. Once both arguments are presented, the jury will begin deliberating and will eventually come back with a resolution.

Medical malpractice cases are known for lasting longer than other types of personal injury cases. Depending on case factors and location, some trials may only run for a half of day as opposed to a full day, making proceedings twice as long and creating more fees to pay.

Appeal

It’s common for the losing counsel of a malpractice suit to appeal the decision they received in court to a higher court, which would be the Supreme Court of Virginia. The decision and facts of the case will be reviewed. Mere dissatisfaction with the results of a case is not enough to be granted with appeal, there must have been a legal error present throughout the case. A few examples of legal errors that could occur in the litigation process are (but not limited to):

• Errors in the application of the law
• Issues with jurisdiction
• Evidentiary rulings
• Issues with discretion
• An unconstitutional ruling

How to find the best Virginia Medical Malpractice Lawyer for your case

If you or a loved one has been injured due to the negligence of a health care provider, you’re probably experiencing an unfathomable amount of pain and confusion as to why this is happening to you. Coping with an injury that could have been prevented is burdensome. The last thing you probably want to deal with is the numerous legal obligations and stipulations associated with filing a medical malpractice claim. Hiring an experienced attorney that has helped other people in your predicament would take some of the responsibility off of you, and help you focus on the next steps you need to take to live your life the way you were before you were harmed.

The act of bringing a malpractice case into fruition isn’t supposed to be another obstacle intended to make your life difficult, it should be one step closer to you receiving the compensation you deserve for the harm inflicted upon you by a health care provider. After suffering an unwarranted injury, a legal remedy for the time you spend suffering should be imposed. This is why it would be in your best interest to choose legal counsel that will be devoted to prioritizing your needs. Asking the appropriate questions when consulting with a potential attorney could make all the difference.

Many claimants lose sight of the fact that an attorney’s job is to advocate for you. If through their words and actions you get the feeling that they’re more concerned about their best interest, chances are this feeling is right. Interviewing more than one firm before choosing legal representation is essential in your pursuit of the attorney or firm best suited for you. Noting elements like extensive experience with malpractice cases, effective communication, and the ability to exhibit empathy for your predicament are just a few of the areas one should assess prior to selecting an attorney.

One of the main reasons why people refuse to hire legal representation is the lack of funds. Victims already had to pay for a multitude of medical expenses and paying for the help of a lawyer may not be an affordable option. Don’t worry, medical malpractice cases can be paid for in two ways: a contingency fee or an hourly wage. Hourly wages refer to the payment of every hour a lawyer worked on a case, while contingency fees are paid after the case is resolved. In most contingency agreements, an attorney is paid a percentage of the monetary award granted to the plaintiff. Before making any permanent decisions, make sure to mention which method of payment a firm or attorney accepts.

Some Notable Medical Malpractice Law Decisions From Virginia

Here are some notable medical malpractice cases that took place in Virginia. Remember, each case is highly individualized. Just because these plaintiff’s received these outcomes does not guarantee your case will.

Joy Thomas v. Robert Thiele Civil action no: 3:15CV00030

Mikiala Whitacre is suing University of Virginia anesthesiologist, Dr. Robert Theile, on behalf of her stepmother for allegedly causing an anoxic brain injury that led to her death.

In her lawsuit, Whitacre claims that Theile improperly inserted a tube into Joy Thomas during an emergency procedure following a cardiac operation. She feels this action violated the standard of care. The defendant has requested a motion for immunity, which in turn, has been denied by the District Court Judge residing over the case.

Whitacre’s lawsuit provides that “as a proximate result of the defendant’s negligence and falling below the standard of care, Joy Thomas suffered great conscious pain and suffering at the time of the negligent intubation which cut off her air supply as a further proximate result caused her death.” She seeks $75,000 in damages. The case’s next hearing is scheduled for June 20.

Joyce Wertman v. U.S. Case no: 7:15-cv-00466

A Virginia judge awarded more than $790,000 to the partner of a man who died from gallbladder removal surgery complications at a Veterans Affairs Hospital.

According to Wertman’s suit, two doctors at the hospital provided substandard care to her partner, William James Lovell, when they severed his common bile duct. She claims that this aversion from the standard of care claimed the life of Lovell. And so, did the court.

After the testimony from an expert witness from that same facility arguing in favor of the plaintiff the court found that the plaintiff had established a “preponderance of evidence the standard of care and breach elements of medical malpractice.” The doctor’s mistake of severing the common bile duct was, in fact, the proximate cause of Lovell’s death from sepsis.

Virginia judge Michael Urbanski awarded special damages to compensate for medical expenses and funeral costs and awarded Lovell’s two children $250,000 each for the loss of consortium.

Footnotes

[1] Va. Code. § 8.01-243(a)(c)

[2] Va. Code. § 8.01-581.1

[3] Baskett v. Banks, 45 S.E.2d 173 (Va. 1947).

[4] Va. Code. § 8.01-581.15

[5] Va. Code. § 8.01-58.1

[6] Va. Code. § 8.01-581.20

[7] same as above

[8] Va. Code. § 8.01-20.1