Frequently Asked Questions

 

Q: What is a statute of limitations?

A: A statute of limitations is an arbitrary time period that a state places on a claim, setting forth a deadline by which a claim must be filed. Unless a claim is filed within the applicable statute of limitations, it will be time-barred. If a claim is time-barred, there can be no legal recovery. In Virginia, all medical malpractice actions for personal injury must be filed within two years from the date the cause of action "accrues." Va. Code Ann. § 8.01-243. Simply stated, the cause of action usually "accrues" on the date that malpractice was committed. 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. 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 Ann. § 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. Va. Code Ann. § 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 will 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). In Virginia, certain circumstances may extend the statute of limitations. These circumstances include fraud or concealment preventing discovery of the injury, incapacity of the victim and a foreign object being left in a patient without the patient's knowledge. It is best to consult an attorney as soon as you suspect you may have a case because of the statute of limitations.