Usually the statute of limitations for personal injury claims in Virginia applies to claims based on medical malpractice. That statute, section 8.01-243(A) of the Virginia Code state that, “Unless otherwise provided in a 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.” The cause of action accrues when the injury is sustained, not when the damage is discovered.
Virginia is one of the few states that uses the “date-of-the-act” rule. Under this rule a plaintiff must file a lawsuit within two years of the date of injury, no matter how difficult it may have been to discover the injury.
Exceptions to the 2 Year Statute of Limitations in Virginia Medical Malpractice Cases
In Virginia there are some exceptions to the two-year statute of limitations in medical negligence claims. These exceptions are:
Cases Involving Foreign Objects
When a foreign object with no therapeutic or diagnostic effect is let in a patient’s body, the patient has one year from the date the foreign object is discovery or reasonably should have been discovered to file a lawsuit. Unfortunately surgical errors like this are all too common.
The statute of limitations for claims based on foreign objects can be extended to maximum of 10 years.
Medical Negligence Cases Involving Fraud
If a health care provider prevents discovery of the injury by fraud, concealment, or intentional misrepresentation, a patient has one year from the date the injury is discovered, or, by the exercise of due diligence, reasonably should have been discovered, to file a lawsuit based on medical malpractice.
The statute of limitations for claims based on fraud, concealment, or misrepresentation of the injury can be extended to a maximum of 10 years.
Claims Based on the Negligent Failure to Diagnose a Malignant Tumor or Cancer
Medical negligence claims based on the negligent failure to diagnose a malignant tumor or cancer are another exception to the two-year statute of limitations governing Virginia medical malpractice claims. Under this scenario the patient has one year from the date the diagnosis of a malignant tumor or cancer is communicated to the patient by a health care provider to file a lawsuit.
The statute of limitations for claims based on negligent failure to diagnose cancer or a malignant tumor can be extended to a maximum of 10 years.
Medical Malpractice Claims for Minors
A minor must file a lawsuit within two years of the alleged wrongful act or omission unless the minor is under the age of 8 at the time of the act. If the minor is under the age of 8, then he or she has until age 10 to file a lawsuit based on medical negligence.
Parents have five years to bring an action for medical expenses relating to the minor’s care.
Incapacitated and Disabled Persons
Section 8.01-229(A)(2) of the Virginia Code states that:
If a person entitled to bring [an] action becomes incapacitated, the time during which he is incapacitated shall not be computed as any part of the period within which the action must be brought, except where a conservator, guardian or committee is appointed for such person in which case an action may be commenced by such conservator, committee or guardian before the expiration of the applicable period of limitation or within one year after his qualification as such, whichever occurs later.
For the purposes of [this section], a person shall be deemed incapacitated if he is so adjudged by a court of competent jurisdiction, or if it shall otherwise appear to the court or jury determining the issue that such person is or was incapacitated within the prescribed limitation period.
In other words the period during which a person is disabled and deemed incapacitated does not count toward the limitation period for filing a medical malpractice claim in Virginia.
Not sure if you have a case? Call or e-mail Corey Pollard, one of the top medical malpractice attorneys in Newport News and Richmond, for a free evaluation.