When you suffer an injury, the thing you are probably most concerned with is your recovery. From there, you may start to worry about paying your medical bills, returning to work, or regaining full mobility and maintaining the quality of life that you were accustomed to prior to your accident.
Many weeks or months may go by before the idea of filing a lawsuit even passes your mind. At that point, you may be wondering, “Is it too late?”
In Virginia, the state does impose a statute of limitations on personal injury lawsuits. This is why acting quickly after an injury is essential.
Here, we discuss the statute of limitations in Virginia, including its purpose, how long you have to file a personal injury claim in our state and exceptions to this rule.
We also review the many steps that go into filing a personal injury claim, which underscores the importance of getting help from an experienced personal injury lawyer as soon as possible.
What Is a Statute of Limitations?
A statute of limitations is a time limit that the state imposes on the duration of time that can pass before a person is barred from filing a civil action.
Each state is responsible for setting its own statutes of limitation. Many states have different limitations for different types of civil actions. For instance, a personal injury statute of limitations may be different from a wrongful death or medical malpractice statute of limitations.
Once a statute of limitations has expired, a claimant is barred from seeking damages and no longer has the right to file a lawsuit.
Statutes of limitations exist to protect defendants. They are often beneficial for plaintiffs, too. The logic behind the existence of a statute of limitations is that, after too much time has passed, evidence vital to a defendant’s defense of themselves (as well as evidence vital to a plaintiff’s case) may be destroyed. Thus, justice would no longer be served if a long period of time has passed.
For this reason, a plaintiff should display reasonable diligence in bringing forth a suit if the plaintiff has a valid cause of action.
The statute of limitations in Virginia, as it pertains to personal injury claims, is two years. The clock on the two-year time limit begins ticking from the date of the cause of action. This is found in Virginia Code § 8.01-243.
Why Does Virginia Have a Statute of Limitations for Personal Injury Claims?
Many people are surprised when they learn that Virginia law limits their time to file a personal injury lawsuit. If someone suffered injuries in an accident they didn’t cause, shouldn’t they have unlimited time to enforce their rights, hold the liable party accountable, and pursue fair compensation?
Unfortunately, the issue is not that simple. Practical and ethical reasons support having a statute of limitations for personal injury lawsuits, including:
- Encouraging timely action – The statute of limitations motivates injured people to file their claims while the evidence is fresh. Over time, details get fuzzy, documents are lost, and witnesses move or forget what happened. By setting a deadline, the law helps ensure that plaintiffs (those who file lawsuits) base their cases on reliable information.
- Protecting defendants from stale claims – Without time limits on personal injury claims, someone could face a lawsuit many years after an incident. These delayed cases can be unfair to the person being sued, who may no longer have access to records or witnesses to defend themselves. The statute helps level the playing field by requiring both sides to act within a reasonable timeframe.
- Promoting efficiency in the legal system – Courts operate more effectively when people file personal injury cases promptly. It can take a long time to collect and present evidence of an accident from many years ago. Long delays can slow down the justice process and create unnecessary backlogs.
- Highlighting the seriousness of filing a lawsuit – A personal injury claim is a formal legal action. Strict deadlines underline the importance of acting responsibly. Waiting too long suggests someone’s injury isn’t as severe or urgent as they claim, affecting how the court views the case.
- Reducing the risk of fraudulent claims – As time passes, it becomes easier for someone to create false or exaggerated claims, especially when little or no evidence remains. A firm deadline helps limit the chances of people taking advantage of the legal system.
Allowing for legal and financial closure – Statutes of limitations help both sides move forward in a dispute. The deadline provides peace of mind for defendants because they know they won’t face legal action indefinitely. For plaintiffs, the statute of limitations offers a clear timeline to pursue justice and financial recovery without dragging out the legal process.
Possible Exceptions to the Statute of Limitations
In some cases, the date when a cause of action arises is obvious. For example, consider a personal injury claim following a car accident: At the moment of the collision between the two vehicles, the victim suffers an injury. Clearly, the date of the cause of action in this case is the date of the car accident.
Sometimes, however, an injury is not discovered immediately. The statute of limitations may not seem fair. For example, if a person is exposed to asbestos fibers but does not develop mesothelioma for 10 years after the date of that exposure, a two-year statute of limitations would hardly seem just.
In the event that the date of discovery, or the date that the injury was discovered or reasonably should have been discovered, is different from the date of the cause of action, exceptions to the strict two-year limit may apply.
Consider the rules set forth in Virginia Code § 8.01-249:
In personal injury actions resulting from the exposure to asbestos or asbestos fibers, the statute of limitations is two years from the date that the asbestos-related injury or disease is first communicated to the victim by a medical care provider. However, no action can be brought more than two years after the date of death of the person.
In personal injury actions involving product liability, when the claim is against a party other than a healthcare provider and involves the implantation of any medical device, the statute of limitations is extended to two years’ time from the date that the person knows or should have known of the injury.
In personal injury actions that were committed against the plaintiff in infancy or disability, the statute of limitations is extended to two years from the date of the ending of the infancy or disability, or two years from the date of which the injury is communicated to the patient by a healthcare professional.
If you have questions about a statute of limitations and how it pertains to your case, it is within your best interest to consult with an attorney.
What Does the ‘Date of Discovery’ of an Injury Mean?
The statute of limitations for personal injury lawsuits usually applies from the date of the accident and injury. So, if another driver injures you in a crash, the standard two-year countdown to file a lawsuit begins on the accident date.
However, people don’t always know they suffered an injury due to someone else’s actions right after the injury occurs. In these cases, the discovery rule may apply. Under this rule, the deadline to file a lawsuit starts when someone discovers or reasonably should have found their injuries.
Let’s consider a hypothetical situation to illustrate how the discovery rule works. Suppose a person has surgery to fix a torn ligament in their knee. A few months later, they start feeling pain and swelling around the surgical site. They assume it’s part of the healing process. But over time, the pain worsens, and they struggle to walk.
Nearly a year after the surgery, they visit a different doctor for a second opinion. Imaging scans reveal that the original surgeon left a small piece of surgical gauze inside the patient’s knee, causing an infection and inflammation. Until that appointment, they had no way of knowing that a surgical mistake had occurred.
In this case, the two-year statute of limitations wouldn’t begin on the day of their original knee surgery. Instead, under the discovery rule, the clock would likely start on the day they learned about the error when their second doctor diagnosed the problem. The rule gives them the full two years from that point to file a medical malpractice lawsuit rather than being unfairly blocked by a deadline before they even knew their injury resulted from their first doctor’s negligence.
Is the Virginia Statute of Limitations Different for Wrongful Death Claims?
Under Virginia law, the personal representative of someone’s estate must file a wrongful death lawsuit within two years of the person’s death. So, technically, the deadline to file a wrongful death claim is the same as the usual deadline for personal injury lawsuits. However, the statute of limitations for wrongful death claims can give families extra time to take legal action in some circumstances.
For example, suppose someone dies in a fatal drunk driving accident. (Fatal car accidents are one of the most common reasons for wrongful death claims.) If they died instantly or on the same day of the crash, then the two-year countdown to file a lawsuit applies from the accident date.
On the other hand, suppose someone lingers in the hospital for weeks or months after a severe accident before succumbing to their wounds. Because the two-year deadline for wrongful death claims applies from the date of someone’s death, not their initial injuries, their family might have additional time to file a lawsuit. (Still, it can be harder to prove a wrongful death claim if someone survives for a while after their initial injuries.) Talk to a Virginia personal injury attorney for more information on the deadlines that apply to your situation.
What Is the Statute of Limitations if the Claim Is Against the Government?
Two distinct yet equally important deadlines exist for personal injury claims against Virginia government agencies. First, you must submit a notice that you’re filing a claim within one year of your “cause of action,” which is usually when your injury occurred. In most cases, you must submit this notice to the Director of the Division of Risk Management or the office of the Virginia Attorney General. The notice must contain specific information, including:
- A description of the incident that caused your injuries
- Explanation of why the state agency or employee is liable
- The time and place at which your injury occurred
- The liable agency or agencies
- The compensation you are demanding.
State law provides that the date of your notice is when it reaches the office of the official or agency from which you seek compensation. Acting quickly is essential to preserve your right to compensation, so don’t wait to talk to a personal injury attorney.
After submitting your claim notice, you must file a lawsuit within two years of when your injury occurred. So, you have two years from your injury date to sue the government, but you must make sure you meet the notice requirements beforehand. If you face disputes about meeting the required deadlines, the burden of proof will be on you to show that you filed your claim notice and lawsuit on time.
Why It is Important to Start Early When Pursuing a Personal Injury Claim
Filing a personal injury claim can be a complicated process.
First, you must file a complaint and summons in the proper court and serve copies on the defendant. Your complaint must explain why you are filing a lawsuit against the defendant as well as what damages you are seeking.
Of course, even filing a complaint is a process in itself. You must be sure that you are filing the lawsuit against the appropriate party and that all potentially liable parties are named in the complaint.
While you await the defendant’s response, it is important to make sure all evidence is gathered and organized, including police reports, witness statements, repair or service logs, manufacturing data, design data, experts’ opinions, photographs, medical records and more.
Once the defendant has filed its answer to a complaint, the discovery phase begins. During discovery, you can use the law to help you to gather evidence to support your case, including seeking court orders that compel the defendant to turn over relevant evidence.
If you do not begin the process of gathering evidence and organizing your claim early enough, you may be limited in your options as you move forward.
For these reasons, working with an attorney is important.
You should contact the law offices of Marks & Harrison as soon as you are able to do so following your injury. Our experienced Virginia personal injury attorneys can begin work on your case immediately. There is no fee to meet with us. Pick up the phone and get started today.
Can the Virginia Statute of Limitations Be Extended Beyond Two Years?
Under some circumstances, you may have additional time to file a personal injury lawsuit. Those circumstances include the following:
- The injured person is a minor – If the person hurt is under 18, the statute of limitations usually doesn’t begin until their 18th birthday. They typically have until age 20 to file a personal injury claim, giving them time to act once they’re a legal adult.
- The injured person is mentally incapacitated – If someone is mentally unable to understand their rights or take legal action, the time limit to file a lawsuit pauses. The clock starts ticking once the individual regains their mental capacity.
- The defendant leaves Virginia – If the at-fault party leaves the state after injuring someone but before the injured person files a lawsuit, the time they’re absent usually does not count against the two-year deadline. This rule helps prevent someone from escaping liability for their actions by avoiding the state.
- The injuries aren’t discovered right away (discovery rule) – Some injuries don’t show up until much later, such as in cases involving medical errors or toxic exposure. In these situations, the two-year period applies from when the injured person discovered or should reasonably have discovered the injury. However, Virginia law limits your time to file a medical malpractice lawsuit to 10 years after the initial injury, regardless of the discovery date.
- The defendant engages in fraud or concealment – The statute of limitations may be paused if the person who caused the injury actively hides what happened or lies to prevent a lawsuit.
These exceptions depend on the specific facts of individual cases and often require legal analysis to apply correctly. Talk to a lawyer as soon as possible to preserve your right to compensation.
Get Help from an Experienced Virginia Personal Injury Lawyer
Marks & Harrison has represented injured Virginians since 1911 and recovered millions for our clients. With over 30 personal injury attorneys on staff and dozens of support personnel ready to help, we have the resources to win the most challenging cases. Call now or complete our contact form for a free case evaluation
