In many respects, Virginia has been more conservative about modifying the common law than its sister states. To the extent modifications have been approved, many restrict rather than expand the rights of the victims of medical negligence. For example, Virginia has adopted three major modifications of medical malpractice law: a damage cap, screening of proposed lawsuits by a medical review panel, and a state fund to compensate victims of birth-related neurological injuries. Much of the legislation specific to medical malpractice can be found in the Medical Malpractice Act, Va. Code Ann. §§ 8.01-581.1 to 8.01-581.20.
Statutes of Limitations
All medical malpractice actions for injury (as opposed to death) must be brought within two years from the date the cause of action accrued. Va. Code Ann. § 8.01-243(A). In § 8.01-230, a cause of action “accrues” at the time of injury: “the cause of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person... and not when the resulting damage is discovered.”
This two-year limitation has long been applicable, and strictly enforced, in Virginia. Virginia is one of the minority states that use the “date-of-the-act” rule, which means that the plaintiff must file suit within two years of the date of the injury regardless of how obscure or undiscoverable the injury might have been. Exceptions to the two-year rule are (i) cases involving minors or mentally incompetent people who are in law regarded as unable to know their legal rights and (ii) cases where the injury was fraudulently concealed from the person.
The Virginia Supreme Court rejected the judicial adoption of a discovery rule, Nunnally v. Artis, 254 Va. 247, 492 S.E.2d 126, (1997), but held that “continuing treatment for the same conditions” tolls the statute of limitations until treatment ends. Grubbs v. Rawls, 235 Va. 607, 369 S.E.2d 683 (1988). The court defined “continuous treatment” as not “mere continuity of a general physician-patient relationship; we mean diagnosis and treatment for the same relating illness or injuries, continuing after the alleged act of malpractice.” The court acknowledged, however, the rule would not apply to a single, isolated act of malpractice. Farley v. Goode, 219 Va. 969, 252 S.E.2d 594 (1979). In other words, when an act of malpractice occurred and that physician continued to see the patient over a course of years for an unrelated condition, the rule would not apply.
In foreign object cases (surgical sponges, needles, etc.) and cases of fraud or concealment (i.e., alteration of medical records) the statute is extended to one year from the date the object or injury is discovered or reasonably should have been discovered. However, this extension is subject to a ten-year limit from the time the cause of action accrued. Va. Code Ann. § 8.01-243(C).
In cases in which the health care provider’s negligence caused the patient’s death (Wrongful Death Claims), suit must be filed within two years of death. Va. Code Ann. § 8.01-244(B).
If a person entitled to bring a personal action dies with no such action pending before the expiration of [the two-year] limitation period... then an action may be commenced by the decedent’s personal representative before the expiration of the limitation period... or within one year after his qualification as personal representative, whichever occurs later.
However, § 8.01-229(B)(6) states that:
[i]f there is an interval of more than two years between the death of any person in whose favor . . . a cause of action has accrued or shall subsequently accrue and the qualification of such person’s personal representative, such personal representative shall, for the purposes of [the statute], be deemed to have qualified on the last day of such two-year period.
A parent's action for medical expenses caused by injury to a minor must be brought within five years. Va. Code Ann. § 8.01-243(B). A minor's medical malpractice action for injury or death must be commenced within two years from the date of the last act of negligence, unless the child is less than eight years of age, in which case the action must be brought by the child's tenth birthday. Va. Code Ann. § 8.01-243.1. The Virginia Supreme Court has upheld the constitutionality of this statute. Willis v. Mullett, 263 Va. 653, 561 S.E.2d 705 (2002). Incapacity (typically a substantial mental or physical handicap) also tolls the running of the statute of limitations during the period of incapacity. Va. Code Ann. § 8.01-229(A).
Contributory or Comparative Negligence
Virginia recognizes the doctrine of contributory negligence in medical malpractice cases. A plaintiff's contributory negligence may bar her recovery entirely, but the patient’s negligence must be concurrent with the defendant's negligence. Sawyer v. Comerci, 264 Va. 68, 563 S.E.2d 748 (2002); Ponirakis v. Choi, 262 Va. 119, 546 S.E.2d 707 (2001).
Joint and Several Liability
Virginia imposes joint and several liability on joint tortfeasors. Va. Code Ann. § 8.01-443. Thus, any joint tortfeasor against whom judgment is entered is liable to the plaintiff for the entire judgment, regardless of the tortfeasor's degree or percentage of fault. For example, in a hospital setting, if the attending doctor and nurse are both negligent, then each one can be held responsible for the patient’s entire injury even if part of that injury was caused by the other’s negligence.
Vicarious Liability
Under the doctrine of respondeat superior, hospitals in Virginia are vicariously liable for the negligence of their employees but not that of independent contractors. McDonald v. Hampton Training School for Nurses, 254 Va. 79, 486 S.E.2d 299 (1997). Whether a physician should be considered an employee is a question of fact not to be determined by whether the hospital calls him one, but by the factors of selection and engagement, payment of compensation, power of dismissal, and (most importantly) power to control the physician's work. A physician's exercise of professional judgment in the performance of professional duties is a factor, but not the only factor, in deciding whether the hospital has the power to control his work. There is also authority for holding a hospital liable for the act of a physician on the theory of negligent credentialing. Stottlemyer v. Ghramm, 2001 Va. Cir. LEXIS 501 (Va. Cir. Ct. July 13, 2001)(affirmed at 2004 Va. LEXIS 99 (2004). In other words, a hospital can be held legally responsible for granting hospital admission and treatment privileges to an unqualified physician.
Expert Testimony
Except for rare cases within the common knowledge and experience of lay jurors, expert testimony is necessary to establish the standard of care, a deviation from the standard, and the proximate cause of injury. Perdieu v. Blackstone Family Practice Center, Inc., 264 Va. 408, 568 S.E.2d 703 (2002). To testify as an expert on the standard of care a witness must demonstrate expert knowledge of the standards of the defendant's specialty and have had an active clinical practice in either the defendant's specialty, or a related field of medicine, within one year of the date of the alleged act or omission. Va. Code Ann. § 8.01-581.20.
Damage Caps
Virginia imposes a cap (limit) on damages of all kinds in medical malpractice cases. For claims arising out of acts or omissions prior to August 1, 1999, the damage cap is $1 million. For acts or omissions on or after August 1, 1999, and before July 1, 2000, the cap is $1.5 million. The cap is increasing by $50,000 every July 1. Two final increases of $75,000 beginning in 2007 will bring the damage cap to $2 million for acts or omissions on or after July 1, 2008. Va. Code Ann. § 8.01-581.15. The Virginia Supreme Court has twice considered this legislation and held that it does not violate the U.S. or Virginia constitutions. Pulliam v. Coastal Emergency Services, Inc., 257 Va. 1, 509 S.E.2d 307 (1999); Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989).
A settlement with one defendant reduces the maximum liability of the others, because the cap limits the total amount recoverable for an injury to a patient, regardless of the number of theories or defendants. FairfaxHospital System v. Nevitt, 249 Va. 591, 457 S.E.2d 10 (1995). This includes punitive damages. Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1990). In cases arising prior to March 28, 1994, when the definition of "health care provider" was broadened in Va. Code Ann. § 8.01-581.1, a physician's professional corporation may be subject to uncapped liability. Schwartz v. Brownlee, 253 Va. 159, 482 S.E.2d 827 (1997).
Virginia limits punitive damages to $350,000. Va. Code Ann. § 8.01-38.1. This cap has also been determined to be constitutional by the Fourth Circuit Court of Appeals. Wackenhut Applied Technologies Center, Inc. v. Sygnetron Protection Systems, Inc., 979 F.2d 980 (4th Cir. 1992).
Statutory Cap on Attorneys' Fees
There is no Virginia statute setting a limit on attorneys' fees in medical malpractice actions.
Periodic Payments
Periodic payments or structured settlements are allowed, but not required in Virginia. A settlement agreement on behalf of a disabled person, including the situation where the plaintiff is a minor (under the age of 18) involving periodic payments must be reviewed by the court and secured by a bond or insurance. Va. Code Ann. § 8.01-424.
Collateral Source Rule
Virginia recognizes the collateral source rule, under which the plaintiff’s receipt of collateral payments (health insurance, paid leave of absence from work, etc.) does not reduce his recovery. This protection is statutory for lost income (Va. Code Ann. § 8.01-35) but the courts follow the rule for all damages in tort cases. Schickling v. Aspinall, 235 Va. 472, 369 S.E.2d 172 (1988).
Pre-Judgment Interest
In Advanced Marine Enterprises v. PRC, Inc., 256 Va. 106, 501 S.E.2d 148 (1998), which was not a malpractice case, the Virginia Supreme Court reversed an award of pre-judgment interest on the unliquidated part of the damages, stating, "Generally, prejudgment interest is not allowed on unliquidated damages in dispute between the parties." This should apply to most medical malpractice claims. However, the decision also notes that Va. Code Ann. § 8.01-382 leaves the date from which interest should run to the sound discretion of the trial court. In Pulliam v. Coastal Emergency Services, Inc., 257 Va. 1, 509 S.E.2d 307 (1999), the court reversed an award of pre-judgment interest because it exceeded the damage cap, but did not comment on whether such interest should have been awarded at all. In cases where pre-judgment interest is proper, the rate is six percent. Va. Code Ann. § 6.1-330.54.
Birth Injury Claims
Virginia does not have a general patient compensation fund covering all medical malpractice claims. However, the Birth-Related Neurological Injury Compensation Act (Va. Code Ann. §§ 38.2-5000 to 38.2-5021), covers infants who suffer permanent, disabling damage to the brain or spine caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation. This no-fault program is the exclusive remedy for such infants and their parents against participating physicians and hospitals, who must pay an annual assessment. Va. Code Ann. §§ 38.2-5001 and 38.2-5002. A claim filed under this statute proceeds in an adversarial fashion and the Virginia Attorney General represents the Fund in opposing the infant’s claim.
If the claim is determined to be compensable, the Fund provides for lifetime medical expenses as well as one-half of the Virginia average weekly wage after the child reaches age eighteen. Va. Code Ann. § 38.2-5009. Many hospitals and physicians choose not to participate. In cases arising prior to April 1, 2000, a participating physician's professional corporation may be sued even in cases otherwise covered exclusively by the fund. Jan Paul Fruiterman, M.D. & Associates v. Waziri, 259 Va. 540, 525 S.E.2d 552 (2000). Although the legislature promptly closed this loophole by expanding the definition of "participating physician" in Va. Code Ann. § 38.2-5001, the Virginia Supreme Court declined to apply the amendment retroactively. Berner v. Mills, 265 Va. 408, 579 S.E.2d 159 (2003).
Immunities
Virginia has waived sovereign immunity in tort cases, subject to significant limitations. No claimant may recover more than $100,000 or the limits of applicable insurance, whichever is greater. In medical negligence cases, the immunity most often comes into consideration when there is a claim against the Medical College of Virginia or the University of Virginia Health System. For example, sovereign immunity has been applied to protect hospital administrators as well as surgical interns and residents at the University of Virginia Hospital. Lawhorne v. Harlan, 214 Va. 405, 200 S.E.2d 569 (1973), overruled on other grounds, First Virginia Bank v. Baker, 225 Va. 72, 301 S.E.2d 8 (1983); Hall v. Roberts, 548 F. Supp. 498 (W.D. Va. 1982). This immunity may extend to other physicians employed by the state, depending on the degree of control exercised over them, Lohr v. Larsen, 246 Va. 81, 431 S.E.2d 642, (1993), but never to independent contractors. Atkinson v. Sachno, 261 Va. 278, 541 S.E.2d 902 (2001). Virginia has not waived sovereign immunity for local units of government. Municipalities are immune for negligence in the performance of governmental functions, including the operation of a hospital. Edwards v. Portsmouth, 237 Va. 167, 375 S.E.2d 747 (1989) (dictum).
A charitable entity is not liable to its beneficiaries for the negligent acts of its agents if due care has been exercised in their selection and retention. Mann v. Sentara Hospitals, Inc., 59 Va. Cir. 433, 2002 Va. Cir. LEXIS 363 (2002) (discussing application of the doctrine to a medical faculty foundation). However, charitable immunity has been withdrawn from hospitals, except where a hospital renders exclusively charitable medical services, or where the patient signed an express agreement providing that all medical services would be supplied on a charitable basis. Va. Code Ann. § 8.01-38.
Medical Review Panels
The Virginia Medical Malpractice Act provides for a system of medical malpractice review panels to assess the validity of medical malpractice claims. At the request of either party, the Supreme Court of Virginia appoints a panel to review the claim, consisting of two doctors, two lawyers, and a non-voting judge as chairman. Va. Code Ann. §§ 8.01-581.2 and 8.01-581.3. The panel determines whether the evidence supports the conclusion that the health care provider failed to comply with the relevant standard of care and whether that failure proximately caused the injury. Va. Code Ann. § 8.01-581.7. The findings of the panel are non-binding and the claimant has the option of filing a lawsuit after the panel has made its ruling. However, any opinion of the medical review panel is admissible as evidence in a subsequent action. Both parties have the right to call panel members, except the chairman, as witnesses. Va. Code Ann. § 8.01-581.8.
Arbitration
Arbitration is a process by which potential litigants can resolve their dispute without resorting to the civil court system. In most arbitration cases, the parties agree to arbitrate their dispute after the event occurs and the claim arises. However, parties may also agree in advance of treatment to binding arbitration of any claim, so long as the patient has the option to withdraw from the agreement within 60 days after the termination of treatment. Va. Code Ann. § 8.01-581.12.
T. Daniel Frith, III is an attorney with Frith Law Firm in Roanoke, Virginia. He concentrates his practice on medical malpractice, nursing home abuse, nursing home neglect, lead paint poisoning, and business torts.
You may view his complete profile at http://www.frithlawfirm.com/frith.htm and the firm’s home page http://www.frithlawfirm.com
Article Source: http://EzineArticles.com/?expert=Dan_Frith
Friday, July 13, 2007
The Who, What, Why, When and How of Medical Malpractice Cases in Virginia
You can define “Medical Malpractice,” can’t you? You may know what it means, but I would be surprised if you have actually considered how to file a med mal claim. This article briefly outlines what Medical Malpractice means in Virginia, from the letter of the law, to the process families undergo when filing a Medical Malpractice Claim. Please note, the laws are often being changed, so always consult an attorney about your specific case, AS SOON AS POSSIBLE.
Definition
Under Virginia law, Medical Malpractice means “any tort action or breach of contract action for personal injuries or wrongful death, based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient. Put simply, medical malpractice claims arise from health care worker / patient relationships, where the patient experiences damages (physical and/or financial), as a result of the health care provider’s negligence.
Clearly, you know who your doctor is, but who is included in the legal definition of “health care provider?” Virginia case law has frequently defined who is, and who is not a health care provider. For example, a physician with an expired license is not a health care provider and is therefore not covered by the laws in the Virginia Medical Malpractice Act. A laboratory is not likely considered a health care provider. A nurse however, is a health care provider. A nursing home is also a health care provider. Tell your attorneys who you believe was involved, and allow them to do the research to determine whether or not your case is technically a medical malpractice claim.
Statute of Limitations
Claim for an AdultIn Virginia, most personal injury actions against health care providers must be filed with the Court within two years of the date of the negligence.
In a case involving a foreign object (surgical sponges, needles, etc.), you have the two-year limitations from the date of negligence, or “a period of one year from the date the object is discovered or reasonably should have been discovered” – whichever period of time is longer.
In Virginia, under limited circumstances, you may be able to file a medical malpractice claim after the two year statute of limitations under what is called the continuing treatment doctrine. This rule is very complicated, and not a sure bet – so as previously stated, speak with an attorney as soon as possible to allow sufficient time to investigate and possibly file your claim.
Claim for a MinorThe rules for children are different. If you are under the age of 18, you are deemed to be a minor in Virginia. If the parent or guardian of a minor wants to file a claim for damage to property (their child being the property), the parent or guardian has five years after the damage, to bring the suit. You will not be able to recover anything but the actual damages or medical bills.
To bring a medical malpractice claim for damage sustained by a minor, it gets even more confusing. Virginia law provides that if the child is less than 8 years old at the time of the injury, they have until their 10th birthday to bring the claim. If the child was older than ten at the time of the negligence, they have two years from that date to file the action.
Virginia Code §8.01-229 states that if one is under a disability (which includes under the age of 18), they have until they are 18 to bring the claim. Please note, the Virginia Supreme Court recently held in medical malpractice cases, it is not until you are 18, plus two years – it is until they are 18 and then the statute expires.
The moral of the story is – with a possible malpractice claim involving a child – call an attorney immediately to find out when your cause of action must be filed.
Wrongful Death Claim
If the negligence of the health care provider caused the death of your loved one and you want to file suit, the claim is called a wrongful death claim. Virginia Code §8.01-244 states that such “action shall be brought by the personal representative of the decedent within two years after the death of the injured person.”
What is the process of filing a malpractice claim?
Investigating / Reviewing Records
Every attorney who is approached about a medical malpractice case will first need to review the relevant medical records. In our office, we prefer the family request these records so the facility or doctor is not made aware of attorney involvement. Once the records are requested, a doctor or hospital has 3 days to produce the records to the family. Under federal law, a nursing home must produce requested records within 2 business days. The hospital, doctor, or nursing home is allowed to charge a reasonable copying fee.
Once you get the records, the attorney, staff or a third party will review the records for the attorney. The purpose of the review is to make sure all the records are present and that the records reflect the events as told to the family, etc. It will take most law offices 2-4 weeks to review the records and decide whether it is a case worth investigating.
Expert Review
If your attorneys believe the case is worthy of further investigation, after reviewing the medical records, they will seek an expert review of the case. An expert is basically a licensed physician who practices medicine in the same field, or specialty, as the health care provider you believe acted negligently.
In Virginia, an expert is required in almost all cases to establish what the health care provider did wrong or should have done. A second expert may be necessary to establish that the defendant health care provider’s negligence caused the damages suffered by you or your loved one. And you just can’t hire any doctor – your expert must meet a certain set of standards established by Virginia Courts, which includes an understanding of the state wide standard of care, in addition to sufficient knowledge skill and experience. Typically, your attorney will find the experts for you.
Experts are not cheap! Typically an expert will charge $300-$400 an hour to review a case. They may increase their fees for court time and depositions. Experts will be the largest cost in any malpractice case. Paying the experts falls upon the family. Because attorneys are prohibited from forwarding money to their clients in Virginia, law firms will require families to pay a cash retainer to the law firm, so the firm can pay the experts for their review and time.
Certification
If the expert believes malpractice occurred, they will have to certify their opinion in writing. This is a new requirement in Virginia. Virginia Code § 8.01-20.1 and Virginia Code §8.01-50.1 require in all medical malpractice and wrongful death actions a written opinion signed by the expert, that the defendant has deviated from the applicable standard of care and the deviation was a proximate cause of the injuries/death.
Filing Suit/Arbitration
From start to end, a lawsuit in Virginia State Courts could take 1-2 years.
If your expert has certified the case, the next step is filing the lawsuit. Now, a medical malpractice case in Virginia is called a COMPLAINT. The Complaint will be drafted by your attorney and will include a list of the relevant facts and allegations of negligence. It will be filed in the City or County Court where the negligent treatment occurred, or where the patient lived at the time of the treatment. After it is filed, it will be served on the defendants. This usually means a Sheriff will deliver the document and the defendant then has less than 1 month to respond to the lawsuit.
Please note – not everyone will have the opportunity to have a jury hear their claim in Court. Many health care contracts ask patients to waive their rights to a jury trial and agree to submit all disputes to arbitration. WE STRONGLY ADVISE AGAINST ALL ABRITRATION AGREEMENTS FOR MANY REASONS. See March / August 2006 articles on http://legalmedicine.blogspot.com/
If, however, you have signed an Arbitration Agreement, you have at least sixty days after the termination of health care to revoke the agreement. If such termination is by death or if death occurs within sixty days after termination, you will have a period of at least sixty days after the appointment and qualification of the guardian, conservator or committee or personal representative to revoke the arbitration agreement.
Written Discovery
After the lawsuit is filed, both sides will issue what is called written discovery. Written discovery is where lawyers on both sides request documents and answers to questions under oath. These questions and answers become the building blocks of the case and will often consume many months of the case.
Depositions
In addition to written discovery, both sides are given the opportunity to question their opponents’ witnesses and clients under oath. Plaintiffs will almost always be deposed, as well as various employees of the defendant, other treating physicians, and experts. Depositions are usually held in an attorney’s office, with both attorneys, a court reporter, and other witnesses present.
SettlementIf the clients agree, the attorneys on both sides can enter into settlement negotiations in an attempt to resolve the case before it goes to trial. With trial, there is always a chance that the jury will rule against you even with the best evidence and experts, so many clients seek settlement where there is a guarantee for both sides.
Trial
You’ve seen My Cousin Vinny? Well, trial is not too far different from that movie. Its emotional, and it can be a long – and often a very draining experience, but at the end of the day, you are trusting a jury of your peers to determine whether your health care provider was negligent, and if so, what damages his/her negligence caused.
Parties
Well, now that your attorney has decided you have a malpractice claim, and you know that it is a long and detailed process; you must decide who will be named as defendants. Often it will be the doctor or nurse who failed to provide care, and their employer.
Please note that there are many healthcare providers in Virginia that you cannot sue for malpractice as they are considered employees of the state, and thus entitled to sovereign immunity.
Burden of Proof
You cannot just tell the jury that you think the doctor or health care provider messed up. In Virginia, you must prove the following:
1. That the health care provider failed to provide care in accordance with “the degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth”
2. That the health care provider’s negligence was the cause of your damages.
This is a very high standard to meet – what if your physician could have been the cause of your injury, but you have similar health problems which also could have caused your injury and pain. NO MALPRACTICE CLAIM.
LimitationsEver read about big huge verdicts in the paper?
Well, they are not likely Virginia cases. The General Assembly has established a “cap” on what you can recover in any medical malpractice action (no matter how many defendants are involved or how large your damages), which is based on the year the negligent care occurred as follows:
2000 - $1,550,000.00
2001 - $1,600,000.00
2002 - $1,650,000.00
2003 - $1,700,000.00
2004 - $1,750,000.00
2005 - $1,800,000.00
2006 - $1,850,000.00
2007 - $1,925,000.00
2008 - $2,000,000.00
Cost Filing a medical malpractice claim is not cheap. While most malpractice attorneys will accept your case on a contingency basis (meaning they don’t charge you an hourly rate for their time) – families, and not attorneys, must be responsible for the costs of litigation.
The costs of litigation are:
Expert hourly fees
Copying costs
Long distance phone calls
Mileage for travel
Court costs
Court reporters
When potential clients come into our office inquiring about a potential medical malpractice lawsuit, we advise them that the Expert Fees alone may exceed $25,000. Certainly something to think about if your only damages as a result of the doctor’s negligence is around $10,000.
Outcome
If you take a case to trial – there is no guarantee you will win. Virginians are wonderful people, but as everyone has a different opinion on politics, faith and justice – you cannot guarantee a Judge or Jury will rule in your favor, even with the best possible medical malpractice case.
Filing a malpractice case will not bring back your loved one, or take away your pain. So each and every family must consider all of the factors before they pursue a claim.
ConclusionIf I can leave you with one piece of advice – it would be to: FIND AN ATTORNEY YOU TRUST – AND EVALUATE YOUR OPTIONS!!!
Lauren Ellerman is an attorney with Frith Law Firm in Roanoke, Virginia. She concentrates her practice on medical malpractice, nursing home abuse, nursing home neglect, lead paint poisoning, and business torts.
You may view her complete profile at http://www.frithlawfirm.com/lauren.htm and the firm’s home page at http://www.frithlawfirm.com
Article Source: http://EzineArticles.com/?expert=Lauren_Ellerman
Definition
Under Virginia law, Medical Malpractice means “any tort action or breach of contract action for personal injuries or wrongful death, based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient. Put simply, medical malpractice claims arise from health care worker / patient relationships, where the patient experiences damages (physical and/or financial), as a result of the health care provider’s negligence.
Clearly, you know who your doctor is, but who is included in the legal definition of “health care provider?” Virginia case law has frequently defined who is, and who is not a health care provider. For example, a physician with an expired license is not a health care provider and is therefore not covered by the laws in the Virginia Medical Malpractice Act. A laboratory is not likely considered a health care provider. A nurse however, is a health care provider. A nursing home is also a health care provider. Tell your attorneys who you believe was involved, and allow them to do the research to determine whether or not your case is technically a medical malpractice claim.
Statute of Limitations
Claim for an AdultIn Virginia, most personal injury actions against health care providers must be filed with the Court within two years of the date of the negligence.
In a case involving a foreign object (surgical sponges, needles, etc.), you have the two-year limitations from the date of negligence, or “a period of one year from the date the object is discovered or reasonably should have been discovered” – whichever period of time is longer.
In Virginia, under limited circumstances, you may be able to file a medical malpractice claim after the two year statute of limitations under what is called the continuing treatment doctrine. This rule is very complicated, and not a sure bet – so as previously stated, speak with an attorney as soon as possible to allow sufficient time to investigate and possibly file your claim.
Claim for a MinorThe rules for children are different. If you are under the age of 18, you are deemed to be a minor in Virginia. If the parent or guardian of a minor wants to file a claim for damage to property (their child being the property), the parent or guardian has five years after the damage, to bring the suit. You will not be able to recover anything but the actual damages or medical bills.
To bring a medical malpractice claim for damage sustained by a minor, it gets even more confusing. Virginia law provides that if the child is less than 8 years old at the time of the injury, they have until their 10th birthday to bring the claim. If the child was older than ten at the time of the negligence, they have two years from that date to file the action.
Virginia Code §8.01-229 states that if one is under a disability (which includes under the age of 18), they have until they are 18 to bring the claim. Please note, the Virginia Supreme Court recently held in medical malpractice cases, it is not until you are 18, plus two years – it is until they are 18 and then the statute expires.
The moral of the story is – with a possible malpractice claim involving a child – call an attorney immediately to find out when your cause of action must be filed.
Wrongful Death Claim
If the negligence of the health care provider caused the death of your loved one and you want to file suit, the claim is called a wrongful death claim. Virginia Code §8.01-244 states that such “action shall be brought by the personal representative of the decedent within two years after the death of the injured person.”
What is the process of filing a malpractice claim?
Investigating / Reviewing Records
Every attorney who is approached about a medical malpractice case will first need to review the relevant medical records. In our office, we prefer the family request these records so the facility or doctor is not made aware of attorney involvement. Once the records are requested, a doctor or hospital has 3 days to produce the records to the family. Under federal law, a nursing home must produce requested records within 2 business days. The hospital, doctor, or nursing home is allowed to charge a reasonable copying fee.
Once you get the records, the attorney, staff or a third party will review the records for the attorney. The purpose of the review is to make sure all the records are present and that the records reflect the events as told to the family, etc. It will take most law offices 2-4 weeks to review the records and decide whether it is a case worth investigating.
Expert Review
If your attorneys believe the case is worthy of further investigation, after reviewing the medical records, they will seek an expert review of the case. An expert is basically a licensed physician who practices medicine in the same field, or specialty, as the health care provider you believe acted negligently.
In Virginia, an expert is required in almost all cases to establish what the health care provider did wrong or should have done. A second expert may be necessary to establish that the defendant health care provider’s negligence caused the damages suffered by you or your loved one. And you just can’t hire any doctor – your expert must meet a certain set of standards established by Virginia Courts, which includes an understanding of the state wide standard of care, in addition to sufficient knowledge skill and experience. Typically, your attorney will find the experts for you.
Experts are not cheap! Typically an expert will charge $300-$400 an hour to review a case. They may increase their fees for court time and depositions. Experts will be the largest cost in any malpractice case. Paying the experts falls upon the family. Because attorneys are prohibited from forwarding money to their clients in Virginia, law firms will require families to pay a cash retainer to the law firm, so the firm can pay the experts for their review and time.
Certification
If the expert believes malpractice occurred, they will have to certify their opinion in writing. This is a new requirement in Virginia. Virginia Code § 8.01-20.1 and Virginia Code §8.01-50.1 require in all medical malpractice and wrongful death actions a written opinion signed by the expert, that the defendant has deviated from the applicable standard of care and the deviation was a proximate cause of the injuries/death.
Filing Suit/Arbitration
From start to end, a lawsuit in Virginia State Courts could take 1-2 years.
If your expert has certified the case, the next step is filing the lawsuit. Now, a medical malpractice case in Virginia is called a COMPLAINT. The Complaint will be drafted by your attorney and will include a list of the relevant facts and allegations of negligence. It will be filed in the City or County Court where the negligent treatment occurred, or where the patient lived at the time of the treatment. After it is filed, it will be served on the defendants. This usually means a Sheriff will deliver the document and the defendant then has less than 1 month to respond to the lawsuit.
Please note – not everyone will have the opportunity to have a jury hear their claim in Court. Many health care contracts ask patients to waive their rights to a jury trial and agree to submit all disputes to arbitration. WE STRONGLY ADVISE AGAINST ALL ABRITRATION AGREEMENTS FOR MANY REASONS. See March / August 2006 articles on http://legalmedicine.blogspot.com/
If, however, you have signed an Arbitration Agreement, you have at least sixty days after the termination of health care to revoke the agreement. If such termination is by death or if death occurs within sixty days after termination, you will have a period of at least sixty days after the appointment and qualification of the guardian, conservator or committee or personal representative to revoke the arbitration agreement.
Written Discovery
After the lawsuit is filed, both sides will issue what is called written discovery. Written discovery is where lawyers on both sides request documents and answers to questions under oath. These questions and answers become the building blocks of the case and will often consume many months of the case.
Depositions
In addition to written discovery, both sides are given the opportunity to question their opponents’ witnesses and clients under oath. Plaintiffs will almost always be deposed, as well as various employees of the defendant, other treating physicians, and experts. Depositions are usually held in an attorney’s office, with both attorneys, a court reporter, and other witnesses present.
SettlementIf the clients agree, the attorneys on both sides can enter into settlement negotiations in an attempt to resolve the case before it goes to trial. With trial, there is always a chance that the jury will rule against you even with the best evidence and experts, so many clients seek settlement where there is a guarantee for both sides.
Trial
You’ve seen My Cousin Vinny? Well, trial is not too far different from that movie. Its emotional, and it can be a long – and often a very draining experience, but at the end of the day, you are trusting a jury of your peers to determine whether your health care provider was negligent, and if so, what damages his/her negligence caused.
Parties
Well, now that your attorney has decided you have a malpractice claim, and you know that it is a long and detailed process; you must decide who will be named as defendants. Often it will be the doctor or nurse who failed to provide care, and their employer.
Please note that there are many healthcare providers in Virginia that you cannot sue for malpractice as they are considered employees of the state, and thus entitled to sovereign immunity.
Burden of Proof
You cannot just tell the jury that you think the doctor or health care provider messed up. In Virginia, you must prove the following:
1. That the health care provider failed to provide care in accordance with “the degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth”
2. That the health care provider’s negligence was the cause of your damages.
This is a very high standard to meet – what if your physician could have been the cause of your injury, but you have similar health problems which also could have caused your injury and pain. NO MALPRACTICE CLAIM.
LimitationsEver read about big huge verdicts in the paper?
Well, they are not likely Virginia cases. The General Assembly has established a “cap” on what you can recover in any medical malpractice action (no matter how many defendants are involved or how large your damages), which is based on the year the negligent care occurred as follows:
2000 - $1,550,000.00
2001 - $1,600,000.00
2002 - $1,650,000.00
2003 - $1,700,000.00
2004 - $1,750,000.00
2005 - $1,800,000.00
2006 - $1,850,000.00
2007 - $1,925,000.00
2008 - $2,000,000.00
Cost Filing a medical malpractice claim is not cheap. While most malpractice attorneys will accept your case on a contingency basis (meaning they don’t charge you an hourly rate for their time) – families, and not attorneys, must be responsible for the costs of litigation.
The costs of litigation are:
Expert hourly fees
Copying costs
Long distance phone calls
Mileage for travel
Court costs
Court reporters
When potential clients come into our office inquiring about a potential medical malpractice lawsuit, we advise them that the Expert Fees alone may exceed $25,000. Certainly something to think about if your only damages as a result of the doctor’s negligence is around $10,000.
Outcome
If you take a case to trial – there is no guarantee you will win. Virginians are wonderful people, but as everyone has a different opinion on politics, faith and justice – you cannot guarantee a Judge or Jury will rule in your favor, even with the best possible medical malpractice case.
Filing a malpractice case will not bring back your loved one, or take away your pain. So each and every family must consider all of the factors before they pursue a claim.
ConclusionIf I can leave you with one piece of advice – it would be to: FIND AN ATTORNEY YOU TRUST – AND EVALUATE YOUR OPTIONS!!!
Lauren Ellerman is an attorney with Frith Law Firm in Roanoke, Virginia. She concentrates her practice on medical malpractice, nursing home abuse, nursing home neglect, lead paint poisoning, and business torts.
You may view her complete profile at http://www.frithlawfirm.com/lauren.htm and the firm’s home page at http://www.frithlawfirm.com
Article Source: http://EzineArticles.com/?expert=Lauren_Ellerman
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