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How Long Do You Have to File a Medical Malpractice Lawsuit in Virginia?

How Long Do You Have to File a Medical Malpractice Lawsuit in Virginia?

Patients should expect that they will receive proper care and treatment from a health care provider. Unfortunately, medical errors and patient injuries happen more often than most of us would like to imagine. As a result of medical malpractice, patients can suffer serious and life-threatening harm.

If you or a loved recently sustained or discovered an injury linked to a medical procedure, you may be eligible to bring a claim against the negligent health care provider. It is important to consult with an attorney with experience in this area of the law as soon as possible. This is because you have only a limited period of time in which to file a lawsuit.

Statute of Limitations for Medical Malpractice Lawsuits

The statute of limitations is the period of time in which a person is eligible to file a lawsuit. For most medical malpractice cases in Virginia, the statute of limitations is two years under Va. Code § 8.01-243.1. The clock on the statute of limitations starts “ticking” on the date of the “last act or omission giving rise to the cause of action.”

Failure to file a lawsuit within the time period set by the statute of limitations will render the claim “time-barred.” In other words, a trial court can – and will – dismiss it. However, as we discuss below, the period may actually be shorter or longer. It will depend on the specific facts of the case.

Statute of Limitations for Virginia Tort Claims Act Cases

When a patient suffers an injury as a result of the negligence of a health care provider who is employed by the Commonwealth of Virginia, the medical malpractice claim typically must be brought under the Virginia Tort Claims Act. Under this law, the claim typically must be brought within one year from the date when the medical negligence caused injury. Health care providers who are  employees of the Commonwealth of Virginia include those who work for:

  • University of Virginia Health System
  • Virginia Tech Health Center
  • Virginia Commonwealth University (VCU) Health System.

These providers and any other healthcare provider who is employed by a public institution or a government medical facility would need to be sued under the Virginia Tort Claims Act for medical malpractice. The one-year statute of limitations would apply to the claim.

Longer Time Limits for Filing a Virginia Medical Malpractice Claim

In some cases, it may be possible to stop, or “toll,” the statute of limitations. In other words, the clock does not run during the tolled period. In other cases, the statute of limitations may extend beyond two years. The Virginia Code provides for certain circumstances in which the time period for filing a medical malpractice claim in Virginia may extend beyond two years. Consider the following:

Wrongful Death

When the medical malpractice injury results in the patient’s death, the executor or administrator of the estate may be able to file a wrongful death lawsuit against the negligent health care provider. The statute of limitations in a wrongful death claim is two years from the date of the patient’s death. So, if the patient battles his or her injuries for an extended period of time, the party filing the wrongful death lawsuit may end up filing a claim several years or more after the patient’s initial injury.

Child Injury

When a child suffers harm due to medical malpractice, the statute of limitations works a little bit differently. Under the Virginia Code, if the patient is under the age of 8 at the time of the injury, that patient has until he or she turns 10 years old to file a medical malpractice claim. For example, if the child suffered an injury at the age of 2, that child would have until his or her 10th birthday to file a lawsuit. So, the statute of limitations would be extended to almost eight years.

Foreign Objects

When a foreign object is left inside the body of a patient, and the patient does not discover the medical mistake and injury immediately, the statute of limitations may be extended. Specifically, the statute of limitations may be extended to one year from the date that the patient discovered, or reasonably should have discovered, that the foreign object such as a sponge from a surgical procedure was left inside of the patient. Typically, this discovery occurs when a doctor diagnoses the cause of an infection or other illness caused by the foreign object. Regardless of how long it takes a patient to discover the foreign object, the statute of limitations in such a case is capped at 10 years from the date of the negligent act.

Fraud or Concealment

When a health care provider’s fraud, concealment or intentional misrepresentation prevents the patient from discovering an injury immediately, the statute of limitations is extended to one year from the date that the injury actually is discovered or should have been discovered through due diligence.

Get Help from an Experienced Medical Malpractice Lawyer in Virginia

If you believe that you or a loved one has suffered an injury as a result of the negligence of a health care provider in Virginia, you should not wait to get in touch with a lawyer who has an extensive background in medical malpractice litigation. The lawyer will need time to investigate what happened and to prepare a lawsuit for filing. If you wait too long to get the legal help you need, you risk allowing the statute of limitations to run on your claim.

Contact Lichtenstein Law Group PLC today to learn more about your rights and options. We have the experience and resources to thoroughly investigate medical malpractice claims and hold negligent health care providers accountable for the harm they cause to patients and their families. We can provide a timely, free and confidential consultation through our office in Roanoke or Charlottesville.

John E. Lichtenstein is a founding member of Lichtenstein Law Group PLC.

John E. Lichtenstein is a founding member of Lichtenstein Law Group, PLC, with more than three decades of experience as a trial lawyer. A graduate of the University of Virginia School of Law, John has successfully resolved hundreds of cases on behalf of his clients, including some of the largest jury verdicts and settlements in Virginia history. He has also served his profession, including serving as President of the Virginia Trial Lawyers Association in 2015-2016 and as Chair of the Virginia State Bar Criminal Law Section in 2007-2008.