There are several laws in Virginia that govern medical malpractice lawsuit, including when they can be filed, how they can proceed, and what makes a medical expert qualified to testify. The laws can be confusing and complicated, and tend to favor defendants while making it more challenging for plaintiffs to bring cases and have a fair shot at getting justice from the perpetrators of medical negligence.
For these reasons it is essential to work with and rely on the advice of a Virginia medical malpractice lawyer if you find yourself in a situation in which you were harmed by a medical mistake. An expert in the law is needed to make sure you file your lawsuit on time, correctly, and with all the needed information, and that you have someone on your side, fighting for you in a settlement or a trial in court.
Medical Malpractice Laws in Virginia
In each state it is up to the legislature to pass laws that are related to medical malpractice cases. They often pass new laws or reforms to the old ones. This was the case in 1976 when Virginia passed the Medical Malpractice Act to combat the rising number and cost of lawsuits in the state. The legislature passed the laws to attempt to bring down the costs of malpractice insurance and healthcare. The laws are also complex, though, and difficult for patients to understand. It is important to rely on a malpractice lawyer for advice, but also to have a basic understanding of patient rights and the laws that determine how these cases can proceed.
The statute of limitations is one of the most important laws for patients to understand because it puts a time limit on when a case can be filed. In Virginia this limit is two years from the time of the negligent action. Exceptions to the limit include a foreign object being left in the body, concealment or fraud related to the negligent act, minors who were harmed by negligence, failure to diagnose specific types of cancer, and wrongful death. In these exceptions the lawsuit must be brought within a year of discovering the negligent act. There is also a statute of repose in Virginia, which bars lawsuits from being filed more than 10 years from the time of the negligence.
The Medical Malpractice Act of 1976 also put a cap on the amount of damages a patient could recover in a lawsuit. The cap was originally set at $750,000 and applied to total damages, including both economic and non-economic damages. The legislature has since increased that cap and has set it to increase by $50,000 each year at least through 2030, at which time it will be $2.95 million. Virginia has also capped punitive damages, although these are not commonly awarded in medical malpractice cases, at $350,000.
Review Panels and the Certificate of Merit
Many of the laws that states put in place to limit the costs of malpractice insurance for physicians are panned by critics as favoring defendants and restricting patients’ access to the legal system. One of these laws that is increasingly common and present in Virginia is a requirement that a medical malpractice lawsuit be filed along with a certificate of merit. This is a statement that proves the plaintiff first consulted with a qualified medical expert who agreed that the case has merit and that negligence and a breach in the standard of care likely occurred.
This can be seen as a barrier to plaintiffs because it is an extra step that can be difficult to achieve. Another law in the state allows for either party to convene a review panel made up of a judge, two lawyers, and two medical professionals. The panel has to review the evidence and issue an opinion on the case. It is not a binding decision, but it can be admitted in court. Both the certificate of merit requirement, and the review panel if requested by the defendant, can present significant challenges for the plaintiff, which is another reason why patients need qualified malpractice lawyers on their side.
Medical Malpractice Cases in Virginia
There are many cases in Virginia in which the verdict goes in favor of the plaintiff, often thanks to the dedication and experience of the malpractice lawyer. There are other cases that don’t go so well, despite best efforts. In one case the plaintiff was given a massive award by a jury, $25 million, but it had to be cut because of the cap on damages in the state. It was reduced to $2 million.
The incident that led to the large verdict occurred when the patient went to the hospital in 2010 with jaw and arm pain. A doctor performed a cardiac catheterization and said the man’s arteries were clear, when later it was determined that they were actually 70 percent blocked. The doctor instead diagnosed him with an infection and sent him home. Just a few months later the patient suffered a massive heart attack and now needs a heart transplant that would give him just ten more years to live. The dire situation could have been prevented if the blockage had been discovered sooner and treated.
In another case a woman won a $5.13 million award—the award will be reduced to the cap amount— after suffering severe burns from a fire in an operating room. She was having a routine biopsy conducted at INOVA Fairfax hospital. The surgeon used an electric tool to cauterize a small area that was bleeding. The jury determined that the surgeon was at fault because he neglected to do a fire risk assessment in advance of the procedure. That assessment would have shown the risk of fire because of the oxygen the woman was being administered.
Finding a Virginia Medical Malpractice Lawyer
In the above examples of lawsuits the victims of medical negligence found and worked with expert Virginia medical malpractice lawyers who were able to fight for them in court and get damages that went well over the cap amount. If you suffered from a medical error in the state, you too will need an experienced malpractice lawyer, essential because of the specialized knowledge involved in taking these cases on and being successful in court.
You can find a malpractice lawyer through referrals or you can start with the state bar association, which can point you toward lawyers who focus solely on malpractice law. Make your selection carefully because you may be working with this person for several years. You need to feel comfortable with the person who will be advocating for you. By asking questions and making sure you feel you have the right professional on your side, you will get the best chance of a positive outcome with justice and adequate damages recovered.