How Long Do I Have to File a Medical Malpractice Claim in Virginia?
You Have Two Years to File an Action for Medical Malpractice in Most Cases
You seek medical treatment to improve your health. Not to get injured. But, unfortunately, medical malpractice happens. Often.
Medical negligence is a leading cause of disability and death. Each year healthcare providers and their insurers pay more than one billion dollars to victims of medical negligence.
If sub-standard medical care caused harm or a loved one’s death, you might have a medical malpractice case against the responsible hospital, surgeon, doctor, or nurse.
Each medical malpractice action has a statute of limitations. A statute of limitations is a law that limits the amount of time you have to file a claim. And most of these deadlines are unforgiving. If you wait too long to file a lawsuit, you may not recover money for the damages caused by your healthcare provider’s negligence.
This article explains the statutes of limitations for medical malpractice cases in Virginia. The two-year personal injury statute of limitations for car accidents, traumatic brain injury, product liability, and workers compensation applies to most medical negligence claims. But there are special rules that apply in unique situations. And your case may fall within one of these special rules.
Keep reading to learn more about the time limits for bringing a medical malpractice lawsuit in Virginia. If you have questions about your case or want to speak with a top-rated personal injury attorney, call me: (804) 251-1620 or (757) 810-5614. I represent victims of medical negligence throughout the state.
Two Years is the Default Statute of Limitations for Medical Malpractice Actions in Virginia
Virginia Code Section 8.01-243(A) states:
Unless otherwise provided in this section or by other statute, every action for personal injuries, whatever the theory of recovery … shall be brought within two years after the cause of action accrues.
Therefore, the general rule is that the statute of limitations for medical malpractice in Virginia is two years.
The Time of Discovery Rule in Medical Malpractice Actions
Usually, the statute of limitations starts to run when the injury occurs. Not when it is discovered.
However, this time-of-injury rule can cause difficulty in certain types of actions for medical malpractice. And the General Assembly has recognized this.
Virginia Code Section 8.01-243(C) makes the time of discovery rule the law for some medical malpractice claims. This law extends the statutes of limitations for medical malpractice in cases involving:
- Foreign Objects: If the healthcare provider leaves a foreign object, such as a sponge or surgical instrument, in your body and that object has no therapeutic or diagnostic value, the statute of limitations is one year after the object is discovered.
- Fraud, Concealment, or Intentional Misrepresentation: If the healthcare provider’s fraud or intentional acts prevented the discovery of the injury, the statute of limitations is extended. You have one year from the date the injury is discovered to file a lawsuit for medical malpractice.
- Negligent Failure to Diagnose Cancer or a Malignant Tumor: The statute of limitations is one year from the date the tumor or cancer is communicated to you by a healthcare provider.
Though Virginia has adopted the discovery rule, there is an outside limit on how long the statute of limitations might be extended. The time limit will not extend the limitations period more than ten years from the date the cause of action accrued, with some exceptions.
Continuing Treatment Rule May Extend the Statute of Limitations in Medical Malpractice Cases
Virginia follows the continuing treatment rule in medical malpractice cases. This rule may extend the statute of limitations even if the time of discovery rule does not.
The continuing treatment rule states:
[W]hen malpractice is claimed to have occurred during a continuous and substantially uninterrupted course of examination and treatment in which a particular illness or condition should have been diagnosed in the exercise of reasonable care, the date of injury occurs, the cause of action for that malpractice accrues, and the statute of limitations commences to run when the improper course of examination, and treatment if any, for the particular malady terminates.
Farley v. Goode, 219 Va. 969 (1979).
The termination of treatment refers to the completion of treatment for the injury or condition that is the basis for the malpractice action, not the termination of the physician-patient relationship.
Statute of Limitations for Medical Malpractice Actions Against Employees of the Commonwealth of Virginia
Some of you may get medical treatment from healthcare providers employed by the University of Virginia (UVA) Medical Center, Eastern Virginia Medical School (EVMS), or Virginia Commonwealth University/ Medical College of Virginia (VCU/MCV). If so, a different statute of limitations applies to your medical malpractice action claim.
You must bring your claim under the Virginia Tort Claims Act. Under the Tort Claims Act, you must give written notice of the medical malpractice within one year of the injury.
For more information on this topic, read my article: Special Notice Requirements for Tort Claims Against the Commonwealth of Virginia.
Statute of Limitations for Medical Malpractice Claims by Minors (Infants and Children)
The law provides more flexibility for children with medical malpractice actions in Virginia.
Under Va. Code 8.01-243.1, a minor has until his or her tenth birthday to file a lawsuit for medical malpractice.
For more information on this topic, read my articles on Birth Injury Claims and Injuries to Children.
Get Help From a Top-Ranked Plaintiffs’ Trial Lawyer Before the Medical Malpractice Statute of Limitations Expires
Tort law provides remedies for damages caused by your medical provider’s negligence. But you must be proactive.
Depending on the medical malpractice, you have from one to ten years to file a civil action in Virginia. But determining when the statute of limitations starts to run is more difficult in medical malpractice claims than any other injury case.
For help meeting the procedural requirements of medical negligence lawsuits and building the evidence needed to win your case, call me: (804) 251-1620 or (757) 810-5614. I am here to help.
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