VIRGINIA MEDICAL MALPRACTICE: Fundamentals of Virginia Medical Negligence: PART 1

[This information is presented by the national law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors. Presentation of this information is intended to be helpful, but it does not establish, nor is it intended to establish, an attorney-client relationship. The reader is advised, urged and directed to contact a malpractice attorney with specific questions, and requests for advice and consultation. This information is general in nature, not intended to be complete or comprehensive, and may not reflect subsequent changes in the law. Specific questions should be directed to specific professionals for specific answers.]

Much of Virginia's law concerning medical malpractice is found in the state's Medical Malpractice Act, Va. Code Ann. §§8.01-581.1 to 8.01-581.20 (LEXIS 2003).

What is medical malpractice in Virginia?

Medical malpractice in Virginia, sometimes referred to as medical negligence, occurs when a health care provider violates the governing standard of care when providing treatment to a patient, causing the patient to suffer an injury.

Medical malpractice in Virginia can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action.

Examples of medical malpractice include:

1. Misdiagnosis of, or failure to diagnose , a disease or medical condition;
2. Failure to provide appropriate treatment for a medical condition;
3. Unreasonable delay in treating a diagnosed medical condition;

Medical malpractice actions in Virginia can be brought by the injured patient against any responsible licensed health care provider, including doctors, counselors, psychologists and psychotherapists.

Statute of Limitations in Virginia

Medical malpractice actions in Virginia for injury (as opposed to death) should be brought within two years from the date the cause of action accrued, which is the date of injury. [Va. Code Ann. §§ 8.01-230 and 8.01-243(A) (LEXIS 2003)]. The Supreme Court has rejected the judicial adoption of a discovery rule, Nunnally v. Artis, 254 Va. 247, 492 S.E.2d 126, (1997), but holds that continuing treatment for the same conditions tolls the statute until treatment ends. Grubbs v. Rawls, 235 Va. 607, 369 S.E.2d 683 (1988).

In foreign object cases and cases of fraud or concealment, the statute is extended to one year from the date the object or injury is discovered or reasonably should have been discovered, but this extension is subject to a ten-year limit from the time the cause of action accrued. Va. Code Ann. § 8.01-243(C) (LEXIS 2003). Wrongful death actions must be brought within two years of death. [Va. Code Ann. § 8.01-244 (LEXIS 2003)].

A parent’s action for medical expenses caused by injury to a minor should be brought within five years. [Va. Code Ann. § 8.01-243(B) (LEXIS 2003)]. A minor’s medical malpractice action for injury or death must be commenced within two years from the date of the last act of negligence, unless the child is less than eight years of age, in which case the action must be brought by the child’s tenth birthday. [Va. Code Ann. § 8.01-243.1 (LEXIS 2003)]. The Supreme Court has upheld the constitutionality of this statute. Willis v. Mullett, 263 Va. 653, 561 S.E.2d 705 (2002). Incapacity tolls the running of the statute of limitations. [Va. Code Ann. § 8.01-229(A) (LEXIS 2003)].

Virginia's Damage Caps.

Virginia imposes a cap on damages of all kinds in medical malpractice cases. For claims arising out of acts or omissions prior to August 1, 1999, the damage cap was $1 million. For acts or omissions on or after August 1, 1999, and before July 1, 2000, the cap was $1.5 million. The cap is increasing by $50,000 every July 1. Two final increases of $75,000 beginning in 2007 brought the damage cap to $2 million for acts or omissions on or after July 1, 2008. [Va. Code Ann. § 8.01-581.15 (LEXIS 2003)]. The Virginia Supreme Court has twice considered this legislation and held that it does not violate the U.S. or Virginia constitutions. Pulliam v. Coastal Emergency Services, Inc., 257 Va. 1, 509 S.E.2d 307 (1999); Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989). A settlement with one defendant reduces the maximum liability of the others, because the cap limits the total amount recoverable for an injury to a patient, regardless of the number of theories or defendants. Fairfax Hospital System v. Nevitt, 249 Va. 591, 457 S.E.2d 10 (1995). This includes punitive damages. Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1990). In cases arising prior to March 28, 1994, when the definition of “health care provider” was broadened in Va. Code Ann. § 8.01-581.1 (LEXIS 2003), a physician’s professional corporation may be subject to uncapped liability. Schwartz v. Brownlee, 253 Va. 159, 482 S.E.2d 827 (1997).

Virginia limits punitive damages to $350,000. [Va. Code Ann. § 8.01-38.1 (LEXIS 2003)]. This cap is also constitutional. Wackenhut Applied Technologies Center, Inc. v. Sygnetron Protection Systems, Inc., 979 F.2d 980 (4th Cir. 1992).

PART 2 will be forthcoming.