Medical Malpractice

Malpractice is another word for "negligence." It means that a health care provider did not measure up to the "standard of care" expected. If the malpractice caused injury (or death), then a lawsuit may be filed to recover monetary damages for the harm that resulted.

See Frequently Asked Questions (FAQs) about this area.

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Frequently Asked Questions

What is 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 Ann. § 8.01-581.20. The specific standard of care at the time the alleged malpractice was committed is established by expert witness testimony.

Who are health care providers?

In Virginia, health care providers are 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. The statutory definition also includes nursing homes, professional corporations, partnerships, limited liability companies whose members are licensed health care providers or which employ licensed health care providers and primarily render health care. See Va. Code Ann. § 8.01-581.1.

What must I prove in my case?

At trial, the plaintiff has the burden of proof. The plaintiff must prove all of the following: (1) the standard of care in effect at the time of the alleged malpractice; (2) that the defendant health care provider breached the standard of care; (3) that as a direct result of the breach(es) in the standard of care, the plaintiff was injured; and (4) what injuries (damages) were suffered as a result. If the plaintiff fails to prove any of these elements, then the Judge presiding over the trial may prevent the case from going to the jury for deliberations.

I have a very bad result. Does that mean that I have a case?

Having a very 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.

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 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 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 is a statute of limitations?

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 much 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.

How much can I recover for my injuries?

The Commonwealth of Virginia imposes a one million dollar ($1,000,000.00) damage cap on all recoveries for bodily injury or death in medical malpractice cases. Va. Code Ann. § 8.01-581.15. Although the General Assembly recently increased the damages cap to one million five hundred thousand dollars ($1,500,000.00), the new cap will only apply to cases accruing on or after August 1, 1999 and becomes effective on July 1, 2000., with annual increases to the damages cap through July 1, 2008.

Virginia also imposes a limit on the amount of punitive damages that can be recovered. Punitive damages are capped at three hundred fifty thousand dollars ($350,000.00). Va. Code Ann. § 8.01-38.1. In medical malpractice cases, the punitive damages recovery must be contained within the medical malpractice cap. In other words, the punitive damages recovery is not in addition to the $1 million (or $1.5 million cap for cases arising on or after August 1, 1999).

Will my case settle?

In medical malpractice cases, it is difficult to predict whether a case will settle. Typically, such cases are rigorously defended. Those cases that do settle usually settle close to the trial dates. Thus, it is usually best to anticipate that your case will go to trial.

For more information please contact the lawyers at Williamson & Lavecchia, L.C., 6800 Paragon Place, Suite 233; Richmond, Virginia 23230, by telephone at (804) 288-1661, by fax at (804) 282-1766, or by e-mail.

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