Under Virginia workers compensation your employer and its insurance company have some control over the health care providers you treat with. For example, you must choose from the panel of physicians your employer offers you after a work injury or else you may be stuck with the medical bills from your treatment.
But what happens when the treating doctor you chose from the panel injures you due to his or her medical malpractice or negligence while treating you for the injuries you sustained in the workplace accident? Is your employer responsible for forcing you to treat with this doctor?
The answer to this question is found in Section 65.2-605 of the Virginia Workers’ Compensation Act. This statute provides: “[T]he employer shall not be liable in damages for malpractice by a physician or surgeon furnished by him pursuant to the provisions of Section 65.2-603, but the consequences of any such malpractice shall be deemed part of the injury resulting from the accident and shall be compensated for as such.”
So what does it all mean?
First, it means that you cannot sue your employer for medical malpractice. In Budd v. Punyanitya, 69 Va. Cir. 148 (Albemarle County 2005) the court held that an employee was barred from bringing a malpractice action against the employer for negligent treatment of a compensable injury by accident. In reaching its decision the court found that an employee’s sole remedy against an employer for all damages related to a work accident is the Virginia Workers’ Compensation Act.
Second, it means that you can sue the negligent physician for medical malpractice in circuit court. The physician is not relieved from liability for his or her negligence just because the treatment was provided and paid for under workers’ comp. So if you believe that your physician’s negligence caused you additional harm, contact a medical malpractice attorney right away to investigate your case and discuss your legal rights.
Third, it means that the employer and its insurance carrier are responsible for any additional medical care, wage loss, or permanent disability you incur because of the medical malpractice. This is consistent with the common law rule that an employer is liable for the consequences of an aggravation of an original injury. So if the medical malpractice sets back your recovery, then the employer and its insurance carrier must pay for additional temporary total disability benefits, permanent disability benefits, and medical treatment related to the malpractice. It also means that the value of your workers compensation settlement will increase.
Dealing with a workers compensation claim and medical malpractice can be difficult and complicated. Call, text, or email Corey Pollard today for help navigating your legal rights. We can also help you qualify for Social Security Disability if you’re unable to return to work following an industrial accident or medical negligence.