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.

Doctors and medical professionals must comply with certain legal standards of medical practice and healthcare, 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 Ann. § 8.01-581.20. The specific standard of care at the time the alleged malpractice was committed is established 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. 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.)

The Burden of Proof in Medical Malpractice Cases

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.

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.

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.

Limits on Medical Malpractice in Virginia

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.

In addition to the statute of limitations, the Commonwealth of Virginia also imposes a damage cap on all recoveries for bodily injury or death in medical malpractice cases. Va. Code § 8.01-581.15. Cases arising before August 1, 1999 are subject to a one million dollar damage cap. For cases arising between August 1, 1999 and June 30, 2000 the damage cap is 1.5 million dollars. For cases arising after June 30, 2000, the cap increases as follows:

July 1, 2000 through June 30, 2001 - $1,550,000.00.

July 1, 2001 through June 30, 2002 - $1,600,000.00.

July 1, 2002 through June 30, 2003 - $1,650,000.00.

July 1, 2003 through June 30, 2004 - $1,700,000.00.

July 1, 2004 through June 30, 2005 - $1,750,000.00.

July 1, 2005 through June 30, 2006 - $1,800,000.00.

July 1, 2006 through June 30, 2007 - $1,850,000.00.

July 1, 2007 through June 30, 2008 - $1,925,000.00.

After June 30, 2008 - $2,000,000.00.

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 § 8.01-38.1. In medical malpractice cases, the punitive damages recovery must be contained within the medical malpractice cap. In other words, the damage caps set forth above represent the maximum recovery even if punitive damages are awarded in addition to compensatory damages.

Only a fraction of medical malpractice cases ever go to trial. 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.

Please click here to contact us to discuss your specific legal matter.

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Library for Medical Malpractice:

• Centra Health v. Mullins - amicus curiae brief [PDF]   
  Description: When an elderly person is the victim of medical malpractice it is often disputed whether he or she died as a result of medical malpractice or whether the victim suffered personal injuries yet died of natural causes. Attorneys Josh Silverman and Carolyn Lavecchia filed this brief in the Virginia Supreme Court arguing the plaintiff can present both personal injury and wrongful death claims to the jury.
• Riverside Hospital v. Johnson [PDF]   
  Description: Attorney Josh Silverman co-authored this successful amicus curiae ("friend of the court") brief to persuade the Virginia Supreme Court that hospital incident reports must be provided to the plaintiff. In this case, the Virginia Supreme Court held that incident reports that contain medical information are not protected from discovery. The opinion by the Virginia Supreme Court can be found in this library under "Court Opinions in Cases of our Lawyers."
• Medical Malpractice Legislation Update [PDF]   
  Description: In 2005, the Virginia General Assembly enacted the most sweeping procedural changes to medical malpractice litigation in years. For injured persons, the most significant change is a new requirement that the plaintiff obtain a certificate from a qualified expert that the defendant breached the standard of care and that the breach of the standard of care caused the plaintiff's injury or death. The attached article describing the newly enacted laws was authored by attorney Joshua Silverman.
• Medical Malpractice Victory in Richmond [PDF]   
  Description: PLEASE NOTE THAT CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THE RESULTS OF ONE CASE DO NOT GUARANTEE THAT A CERTAIN RESULT WILL BE ACHIEVED IN FUTURE CASES. PLEASE CONTACT US TO DISCUSS THE SPECIFICS OF YOUR CASE.
  
  Tom Williamson successfully represented a plaintiff in a medical malpractice trial in Richmond. The jury awarded the plaintiff $1.5 million. Click on the above link to read the trial report published in Virginia Lawyers Weekly.
• Trial of a Medical Malpractice Case [PDF]   
  Description: A chapter on the trial of medical malpractice cases authored by Tom Willliamson and published by the Virginia Law Foundation in "Medical Malpractice Law in Virginia (2008)".
• Medical Malpractice Win in Petersburg, Virginia   
  Description: PLEASE NOTE THAT CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THE RESULTS OF ONE CASE DO NOT GUARANTEE THAT A CERTAIN RESULT WILL BE ACHIEVED IN FUTURE CASES. IF YOU WOULD LIKE THE LAWYERS OF WILLIAMSON & LAVECCHIA, L.C. TO REVIEW YOUR LEGAL MATTER, PLEASE CONTACT US.
  
  Carolyn Lavecchia and Joshua Silverman successfully represented the plaintiff who had undergone a Nissen fundoplication. The jury awarded 1.25 million dollars plus pre-judgment interest.

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Frequent Questions for Medical Malpractice:

• What are medication errors?
• What is the "standard of care"?
• Who are health care providers?
• What must I prove in my case?
• I have a very bad result. Does that mean that I have a case?
• Do I have a good case?
• What is a statute of limitations?
• How much can I recover for my injuries?
• Will my case settle?
• Do I need to have an expert witness certify that the case has merit prior to serving a medical malpractice lawsuit?

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Web Resources for Medical Malpractice:

• Institute of Medicine: "What You Can Do To Prevent Medication Errors"

  Description: This Fact Sheet provides useful tips to prevent medication errors regardless of whether you are at home or in the hospital.

• Medline

  Description: Medline provides abstracts of medical literature from peer reviewed journals. The full text of many of the articles are available online.

• Virginia Practitioner Database

  Description: The Virginia Board of Medicine's databank provides important information about all medical doctors and podiatrists licensed in Virginia. At this website you can research the educational background of doctors as well as whether they have ever settled a medical malpractice claim or had a judgment entered against them.

• Preventing Medical Errors

  Description: The Institute of Medicine estimates that between 44,000 and 98,000 Americans die each year due to preventable medical errors. The Agency for Healthcare Research and Quality's website provides helpful information for patients to be advocates for their own safety when undergoing medical care.

• People Over Profits

  Description: People Over Profits is committed to fighting back against the well-organized and well-funded assault on the civil justice system, and protecting American civil rights and trial by jury. The attorneys at Williamson & Lavecchia, L.C. share the commitment of People Over Profits to protect the right to trial by jury.

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Blog for Medical Malpractice

• Treating the Medical Hit and Run
• Tips for Preventing Medication Errors
• Doctors Push "Gag Contracts" on Patients
• Preventing Medication Errors
• States Weigh the Merits of Medical Malpractice Caps
• Too many lawsuits or too much malpractice?
• Medical Malpractice Myths
• Medical Malpractice Cap on Damages
• Will Someone Take Responsibility for Medication Errors?
• Trial of a Medical Malpractice Case
• Half of Pediatricians Would Refuse to Admit Medical Mistakes
• Coumadin: Serious Side Effects and Patient Education
• Majority of ER Patients Leave Hospital Confused about Treatment and Medications
• Reporting Medication Errors
• CBS 60 Minutes Story on Medication Errors
• Medication Error Website
• Too many medical malpractice lawsuits?
• Arbitrary Cap on Medical Malpractice Damages in Virginia
• Medication Errors Lead to 18 Million Emergency Room Visits
• Using Technology to Prevent Medication Errors
• Over 238,000 Preventable Hospital Deaths
• 30,000 Americans Wake Up During Surgery Each Year
• Medication Errors Injure 1.5 Million Americans
• Should physicians who commit medical malpractice be protected by charitable immunity?
• Patient Injuries and Death Due to Medication Errors
• Who should pay when hospitals commit errors?
• Expert witnesses in medical malpractice cases