When drafted a medical malpractice lawsuit, there are a number of boxes that need to be checked off first. You already know the basics of what constitutes medical malpractice or negligence: check. You already have a lawyer in mind: check. You’ve determined you have a good case: check. You know what you want: check. But is the law on your side? These are the relevant medical malpractice and negligence laws that might affect your lawsuit.
- Statutes of Limitations. There are limitations placed on lawsuits for a number of reasons, not the least of which is the possibility that people will only lodge a complaint when they are in financial trouble. Victims of medical malpractice therefore have only two years from the date of operation or injury. This statute of limitations does not extend to the mentally impaired. This law is strictly enforced in Virginia.
This law is controversial because it is not based on discovery. If you only discover the malpractice a year after it occurred, you still only have a year to make your case. If you discover it two years after it occurred — you have no case at all. The only exception is when there is an ongoing period of treatment. In that situation you have two years from the end of treatment.
There is a five-year statute of limitations when a minor is the victim of malpractice.
There is also a two-year statute of limitations for wrongful death lawsuits.
- Negligence. Contributory or comparative negligence are doctrines of law in Virginia. Contributory negligence may reduce the amount of damages recovered if the plaintiff’s own negligence contributed to the injury sustained. Comparative negligence is similar in that the doctrine assumes that both plaintiff and defendant are at least partially at fault for the injury sustained by the plaintiff, albeit not necessarily through negligence. In Virginia, these doctrines may prevent a plaintiff from recovering any damages in some situations.
Expert testimony will also be required in order to establish how the expected standard of care was violated. The plaintiff must both prove what the standard is and how the broken standard resulted in injury.
Plaintiffs should also be aware that the state law of Virginia places a cap on potential damages in medical malpractice cases. This cap stands at $2 million as of 2008. Punitive damages — those that punish the defendant — are limited to only $350,000. There is no cap on attorneys’ fees in Virginia. There is the potential for structured payments, but these are not mandated by law.