Medical Malpractice

Malpractice is another word for negligence and other wrongful conduct. It means that a health care provider did not measure up to the “standard of care” expected of similar health care providers under similar circumstances. If the malpractice caused injury (or death), then a lawsuit may be filed to recover monetary damages for the resulting harm.

Doctors, nurses and other health care professionals must comply with minimal standards practice, known as the “standard of care.” In Virginia, the standard of care is defined by statute. The “standard of care by which the acts or omissions [alleged malpractice] are to be judged shall be that degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth… ” Va. Code  § 8.01-581.20.  In most instances, the specific standard of care must be proved by expert witness testimony.

In Virginia, “health care providers” are also defined by statute. The statutory definition is broad and includes any person, corporation, facility or institution licensed by Virginia to provide health care or professional services as a physician or hospital, dentist, pharmacist, registered nurse or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, physical therapy assistant, clinical psychologist, clinical social worker, professional counselor, licensed dental hygienist or health maintenance organization. See Va. Code  § 8.01-581.1.


Do I have a good case?

One of the most frequently asked questions we encounter from a potential client during the initial client contact is whether he has a good case. Usually there is no way to evaluate the merits of a potential case until after the medical records are obtained and closely reviewed. Generally speaking, most cases have facts which “cut both ways,” meaning that there are facts which also help the health care provider defend the claim. Under Virginia law, expert testimony is almost always required to prove a medical malpractice case. Hence, the strength of the case hinges upon the facts that will be in evidence and the testimony of the expert witnesses. Even “good” cases can be lost if the jury tends to believe the version of the facts and expert opinions presented by the defendant health care provider. Nevertheless, after a potential case has been closely evaluated, an attorney may be able to provide an opinion regarding the merits of a case and its probability of success in litigation.


What Must Be Proved in Medical Malpractice Cases

At trial, the plaintiff has the burden of proof. The plaintiff must prove all of the following:

  • The standard of care in effect at the time of the alleged malpractice;
  • That the defendant health care provider breached the standard of care;
  • As a direct result of the breach(es) of the standard of care, the plaintiff was injured; and
  • The specific injuries (damages) suffered by the plaintiff.

If the plaintiff fails to prove any of these elements, then the Judge presiding over the trial may dismiss the case without it ever going to the jury for deliberations..

Having a bad result does not mean that malpractice was committed. A bad result can happen even if the doctor or other health care provider complied with the standard of care. The only way to determine whether a bad result is due to negligence is by close examination of the facts, which usually requires review of the appropriate medical records and consultation with an expert.


The Importance of Experts

The opinions of qualified experts are required in most cases to prove a breach of the standard of care by a health care provider and to prove the breach of the standard of care caused harm. In Virginia in most instances, before service of a malpractice complaint on a health care provider can occur, a signed opinion by a qualified expert must be obtained stating that the health care provider deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed. One of the most important tasks of a lawyer representing the victim of medical malpractice is to search out and retain well qualified experts to provide opinions about the standard of care and cause of injury. To learn more about how our firm works to retain the most qualified experts for the cases of our clients, please read A Horse To Ride: Finding Experts authored by Tom Williamson.


Time Limits on Medical Malpractice in Virginia

In most cases in Virginia, the statute of limitations for medical malpractice actions for personal injury is two years from the date the cause of action “accrues.” Va. Code  § 8.01-243.  Simply stated, the cause of action usually “accrues” on the date that malpractice was committed, so a lawsuit usually must be filed within two years of the incident.

Virginia does have a doctrine called the “continuing treatment rule” which may extend the statute of limitations period. Under the continuing treatment rule, if there has been substantially uninterrupted treatment by the defendant, then suit must be filed within two years of the date of last treatment by the defendant health care provider for the same or a related condition. There are exceptions to this general rule. Some of the exceptions which may extend the two year from treatment termination rule are:

  • No injury or harm was caused by the malpractice at the time of treatment. The patient will be permitted to file a lawsuit and seek recovery for injury provided the lawsuit is filed within two years of the initial injury even if the treatment terminated more than two years earlier.
  • Conditions and events including death, incarceration, bankruptcy, incapacity and pending criminal proceedings arising out of the same facts upon which the malpractice claim is based.
  • In a claim for the negligent failure to diagnose a malignant tumor or cancer, for a period of one year from the date the diagnosis of a malignant tumor or cancer is communicated to the patient by a health care provider, provided the health care provider’s underlying act or omission was on or after July 1, 2008.
  • In cases arising out of a foreign object, like a surgical sponge, having no therapeutic or diagnostic effect being left in a patient’s body a patient will have at least one year from the date the object is discovered or reasonably should have been discovered to file an action.
  • Fraud or concealment preventing discovery of the injury.

If the malpractice causes death, then the wrongful death statute of limitations applies. Wrongful death actions must be filed within two years of the date of death. Va. Code § 8.01-244.

Virginia has a special statute of limitations period governing medical malpractice actions of minors. If a child is under eight years of age, suit must be commenced by the child’s tenth birthday. For children eight years of age or older, suit must be commenced within two years of the date malpractice was committed absent some exception extending this time period. Va. Code  § 8.01-243.1.

If the defendant is an agent of the Commonwealth of Virginia, such as employees of one of the teaching hospitals in Virginia, then the claim may need to be pursued under the Virginia Tort Claims Act. This Act has specific administrative requirements which must be followed for the claim to be actionable, including a mandatory notice requirement. In addition, recovery under the Virginia Tort Claims Act is limited to one hundred thousand dollars ($100,000.00).

Determination of the governing period of time to file a medical malpractice action can involve extensive study of the facts and legal research. It is best to consult an attorney as soon as you suspect you may have a case because of the statute of limitations.


Damages Awarded In Virginia Medical Malpractice Cases

The Commonwealth of Virginia imposes a damage cap on all recoveries for bodily injury or death in medical malpractice cases. The cap on damages limits the total amount of recovery no matter the amount of economic loss such as medical expenses and loss of income, the amount of pain and suffering, or the permanence or severity of the injury itself. For injury or death caused by malpractice in 2011, the cap is $2,000,000. Starting on July 1, 2012, the cap will increase by $50,000 per year until it reaches $3,000,000 in 2031.

Virginia also imposes a limit on the amount of punitive damages that can be recovered at three hundred fifty thousand dollars ($350,000.00). In medical malpractice cases, the punitive damages recovery must be contained within the medical malpractice cap. In other words, the medical malpractice damage cap represents the maximum recovery even if punitive damages are awarded in addition to compensatory damages.

If the malpractice caused the wrongful death of the patient, damages are awarded to the beneficiaries. The beneficiaries are not determined by a Last Will and Testament, but according to statute. Va. Code  § 8.01-53. If the patient was married and had children, the damages will be awarded to them. In other situations damages may be awarded to parents, siblings, grandchildren, and more remote relatives.


Will The Case Settle Before Trial?

Only a fraction of medical malpractice cases ever go to trial. It is difficult to predict whether a particular case will settle before trial. Typically, such cases are rigorously defended. Those cases that do settle usually settle close to the trial dates. Many defendants will not consider settlement of the case until the plaintiff has identified well qualified experts who will come to trial to testify against the defendant. Some defendants refuse to consider settling a claim even when the case is a strong case with outstanding experts. Thus, it is usually best to anticipate that your case will go to trial and prepare to present a strong case to present to the jury at trial.

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