Under Virginia law, you have two years from the date of a medical error to pursue a medical malpractice claim. Missing the deadline imposed by the statute of limitations can severely limit your legal options and potentially have your case dismissed.
Medical malpractice attorneys fight to safeguard the rights of Virginia clients who suffer due to negligence by healthcare providers. Seeking justice and your rightful compensation requires quick action and a thorough understanding of what the law says about medical malpractice claims in Virginia.
When Does the Clock on the Statute of Limitations Start Running?
Although the Virginia statute of limitations of two years from the date of the medical error is clearly noted in state law, it may not be totally clear when that two-year clock begins, depending on the circumstances of your case. For instance, what if the medical error occurred in February, but you only discovered it in June?
It is not uncommon for situations like this to occur, and it stands to reason that you should not have your timeline shortened when there was no way you could have filed a medical malpractice claim until you realized the error. Fortunately, Virginia law has a discovery rule, which states that the two-year window begins from the date you discovered, or reasonably should have discovered, your injury in certain circumstances.
However, it is important to note that Virginia courts apply the discovery rule narrowly. This is why it is critical to act quickly, contact a medical malpractice lawyer, and move forward with your case as soon as possible.
Can the Virginia Statute of Limitations on Medical Malpractice Claims Be Extended?
In certain circumstances, Virginia law allows for an extension of the statute of limitations for medical malpractice claims. This is known as “tolling,” and it may be applied in the following situations.
Minor Children
If the injured party is under 18, there are some exceptions to the statute of limitations. For children under eight years old, you have until their 10th birthday to file a claim. For children eight and older, the two year deadline still applies. However, these rules do not apply to injuries occurring during childbirth. These claims may be covered under the Virginia Birth-Related Neurological Injury Compensation Act.
Mentally Incapacitated Victims
Suppose the person was mentally incapacitated at the time of the medical error and through the two-year window for filing. In that case, they may have the deadline extended until they regain legal capacity, at which time the two-year clock begins. However, when a guardian or legal representative is capable of acting on behalf of the mentally incapacitated patient, the two-year window typically still applies.
Fraud or Concealment
Sometimes, healthcare providers may conceal medical errors by falsifying records or hiding diagnostic errors. When this occurs, and the concealment is intentional, the statute of limitations may be tolled until the patient discovers, or reasonably should have discovered, the medical malpractice.
Foreign Objects
Sometimes, a foreign body, such as a medical sponge, surgical instrument, or gauze, is negligently left in the body after surgery. These errors may not be discovered until long after the procedure has been completed. When that’s the case, Virginia law may allow a medical malpractice lawsuit to be filed up to a year after the discovery of the foreign body, even if the two-year window has passed.
What Is the Statute of Repose?
While the statute of limitations provides a general deadline, the statute of repose sets an absolute time limit for filing a medical malpractice lawsuit. In Virginia, the statute of repose is 10 years from the date of the medical error. That means even exceptions to the statute of limitations do not apply if the injury is discovered 10 or more years after the malpractice occurred.
In almost all cases, this deadline has no exceptions. However, there are some instances where minor children who were legally disabled at the time of the malpractice may still pursue a claim beyond the 10-year timeframe.
Can My Virginia Medical Malpractice Lawsuit Still Go to Trial After the Statute of Limitations Has Expired?
Unfortunately, it is highly likely that the court will dismiss your lawsuit if you fail to file within the two-year timeframe. Even if your evidence is compelling and the medical malpractice is clear, the law will not allow your case to move forward if it is filed too late.
There are rare exceptions when your case may proceed despite missing the two-year window. For instance, if there is a dispute about when the injury was discovered, then the courts may allow you to pursue your claim. However, these circumstances are uncommon and represent the exception, not the rule.
For these reasons, it is critical to act swiftly when you suspect medical malpractice. Contact a medical malpractice lawyer as soon as possible, and they can help you move your case forward in a timely fashion.
Even with the assistance of an experienced personal injury attorney, the legal process can be time-consuming. Gathering medical records, investigating the incident, calculating compensation, and consulting experts can take weeks or months. On top of that, insurance companies may employ stalling tactics to push your claim past the two-year window, and evidence becomes harder to gather the longer you wait. Act now to protect your rights.
Contact a Virginia Medical Malpractice Lawyer
Medical malpractice claims are among the most complex personal injury cases to pursue in Virginia. Between involved procedural requirements, high burdens of proof, and tight deadlines, attempting to manage a claim independently is not only challenging but risky.
Marks & Harrison has proudly served injured clients in Virginia, Maryland, and Washington D.C. for over 100 years. In that time, we have recovered millions on behalf of our clients, and they have shown their support and satisfaction through countless testimonials.
Our respected medical malpractice attorneys have extensive experience with these complex and difficult cases, and we are familiar with the insurers and courts that handle them. We will be your fiercest advocates as you seek justice and fair compensation for your injuries. Contact us today for your free consultation.
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