How Long Do You Have to File a Medical Malpractice Action In Virginia?

If you or a loved one has been harmed through the negligence of a doctor or another healthcare provider, you may consider filing a lawsuit. These personal injury lawsuits are often referred to as medical malpractice cases.

You should be aware that there are strict deadlines to file a lawsuit against a healthcare provider but it’s a complicated matter. The answer can be fact specific, so you should always immediately consult with an attorney. The rule in Virginia for adults injured by malpractice is typically two years after the cause of action accrues (usually the date of the negligent act causing harm). The statute of limitations for your case is vital to your claim. If a lawsuit is not filed within the statute of limitations, it is forever barred and cannot be pursued– no matter how bad the doctor’s actions were.

Issues can arise, however, if you have been harmed by a doctor but did not realize it within two years. Your time to file a lawsuit can theoretically pass before you have even realized your harm. Thankfully, Virginia has carved out some exceptions to its strict statute of limitations rules.

First, is cases in which foreign objects having no therapeutic or diagnostic value are left in a patient’s body, the statute of limitation is extended for one year from the date the object is discovered, or reasonably should have been discovered. However, this extension cannot extend more than 10 years from the date the cause of action accrues.

For example, suppose a doctor performs a surgery upon you and negligently leaves behind a sponge or tool. You discover the mistake three years after the surgery and have to undergo a second surgery to have the object removed. In this instance, you will likely have one year from the date of discovery. Now, if you do not discover the item for 15 years, you are likely left with no recourse because the law will not extend the statute of limitations past 10 years from the date the object was left inside the patient in this example.

A second exception to the strict two-year statute of limitation is in cases involving the negligent failure to diagnose a malignant tumor or cancer. Your deadline can be extended for one year from the date the diagnosis is communicated to you by a healthcare provider, provided the limitation is not extended beyond 10 years.

For example, suppose a doctor reviewing tests or images negligently overlooks visible or obvious early signs of cancer that would otherwise be very treatable. The cancer then goes undiagnosed and untreated for four more years, and in the meantime it has spread to other parts of the body. Assuming the underlying negligent failure to diagnose occurred on or after July 1, 2008, the patient’s statute of limitation would be extended for one year after the diagnoses was communicated to the patient. Similar to the prior example, the statute of limitation cannot extend beyond 10 years post-negligence.

There are additional exceptions that can extend the deadline to file a lawsuit for some young minors, and people who continue to treat with a doctor in an effort to cure the harm caused by his negligence. There are also exceptions in instances of fraud. The statute of limitation is critical to the viability of your case, and can hinge upon the facts and circumstances of your case. That is why is it very important to discuss the details of your case with an attorney promptly upon suspicion that you are the victim of medical malpractice.

See our resources on medical malpractice in Virginia for further information or call Cooper Hurley Injury Lawyers at 757.455.0077.