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The Who, What, Why, When and How of Medical Malpractice Cases in Virginia

You can define “Medical Malpractice,” can’t you? You may know what it means, but I would be surprised if you have actually considered how to file a med mal claim. This article briefly outlines what Medical Malpractice means in Virginia, from the letter of the law, to the process families undergo when filing a Medical Malpractice Claim. Please note, the laws are often being changed, so always consult an attorney about your specific case, AS SOON AS POSSIBLE.

Definition

Under Virginia law, Medical Malpractice means “any tort action or breach of contract action for personal injuries or wrongful death, based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient. Put simply, medical malpractice claims arise from health care worker / patient relationships, where the patient experiences damages (physical and/or financial), as a result of the health care provider’s negligence.

Clearly, you know who your doctor is, but who is included in the legal definition of “health care provider?” Virginia case law has frequently defined who is, and who is not a health care provider. For example, a physician with an expired license is not a health care provider and is therefore not covered by the laws in the Virginia Medical Malpractice Act. A laboratory is not likely considered a health care provider. A nurse however, is a health care provider. A nursing home is also a health care provider. Tell your attorneys who you believe was involved, and allow them to do the research to determine whether or not your case is technically a medical malpractice claim.

Statute of Limitations

Claim for an Adult

In Virginia, most personal injury actions against health care providers must be filed with the Court within two years of the date of the negligence.

In a case involving a foreign object (surgical sponges, needles, etc.), you have the two-year limitations from the date of negligence, or “a period of one year from the date the object is discovered or reasonably should have been discovered” – whichever period of time is longer.

In Virginia, under limited circumstances, you may be able to file a medical malpractice claim after the two year statute of limitations under what is called the continuing treatment doctrine. This rule is very complicated, and not a sure bet – so as previously stated, speak with an attorney as soon as possible to allow sufficient time to investigate and possibly file your claim.

Claim for a Minor

The rules for children are different. If you are under the age of 18, you are deemed to be a minor in Virginia. If the parent or guardian of a minor wants to file a claim for damage to property (their child being the property), the parent or guardian has five years after the damage, to bring the suit. You will not be able to recover anything but the actual damages or medical bills.

To bring a medical malpractice claim for damage sustained by a minor, it gets even more confusing. Virginia law provides that if the child is less than 8 years old at the time of the injury, they have until their 10th birthday to bring the claim. If the child was older than ten at the time of the negligence, they have two years from that date to file the action.

Virginia Code §8.01-229 states that if one is under a disability (which includes under the age of 18), they have until they are 18 to bring the claim. Please note, the Virginia Supreme Court recently held in medical malpractice cases, it is not until you are 18, plus two years – it is until they are 18 and then the statute expires.

The moral of the story is – with a possible malpractice claim involving a child – call an attorney immediately to find out when your cause of action must be filed.

Wrongful Death Claim

If the negligence of the health care provider caused the death of your loved one and you want to file suit, the claim is called a wrongful death claim. Virginia Code §8.01-244 states that such “action shall be brought by the personal representative of the decedent within two years after the death of the injured person.”

What is the process of filing a malpractice claim?

Investigating / Reviewing Records

Every attorney who is approached about a medical malpractice case will first need to review the relevant medical records. In our office, we prefer the family request these records so the facility or doctor is not made aware of attorney involvement. Once the records are requested, a doctor or hospital has 3 days to produce the records to the family. Under federal law, a nursing home must produce requested records within 2 business days. The hospital, doctor, or nursing home is allowed to charge a reasonable copying fee.

Once you get the records, the attorney, staff or a third party will review the records for the attorney. The purpose of the review is to make sure all the records are present and that the records reflect the events as told to the family, etc. It will take most law offices 2-4 weeks to review the records and decide whether it is a case worth investigating.