Before trying to file a medical malpractice or wrongful death lawsuit in the state of Virginia, it’s important to know how long you have to do it — unfortunately the statute of limitations can work against the victim in some cases. There are a number of steps that go into proving your case in the short amount of time you have.
First, the burden of proof rests on the victim or plaintiff. Second, the statute of limitations only lasts two years from the time of injury in most cases, which means if the victim only learns of medical malpractice a year after it occurred, then the victim only has a year to move forward with the case.
When proving that medical malpractice or wrongful death occurred, the victim or plaintiff must prove:
- A health care provider’s general SOP, or standard operating procedure, for the required level of care. In other words, you need to prove that the care you received should have been provided differently or without mistake.
- How the health care provider was negligent in providing that standard of care.
- How you suffered (physically or emotionally) as a result; or how the deceased suffered before passing.
- An itemized list of both injuries and financial damages. What are the victim’s past, present, and future medical expenses or diminished earning potential?
Some lawsuits fall under a statute of limitations of only one year. If your claim is made against a doctor or nurse working for the state government, then you must file it to meet the Virginia Tort Claims Act. Unfortunately for the victim, this law limits potentially damages to only $100,000.
For other cases, the amount a victim can file suit for is capped in the low millions. Starting in 2012, the cap was raised $50,000 per year. This will continue until the cap is raised to a maximum of $3 million. Punitive damages are meant to provide additional punishment for severely negligent medical malpractice. Punitive damages are capped at $350,000.
The statute of limitations is extended in some cases when there is continuing treatment. In order to qualify, the treatment must continue without interruption. The two-year rule begins the moment treatment ends.
The statute of limitation is also extended in some cases when a foreign object is left inside the victim without his or her knowledge. A victim has either two years from the date of injury to file suit or one year from the date of discovery; whichever is longer. The statute of limitations only extends to ten years, so you’d better find that wayward scalpel fast!