Patients Suing Over Failure To Diagnose Cancer Are Given More Time to Bring a Claim

Patients who have been harmed by medical malpractice in Virginia can now benefit from some extensions in the time they are given to file a personal injury lawsuit.

A recently enacted amendment to state legislation provides extensions in the time available in certain conditions to the two year time limit to file a lawsuit.

In cases in which a foreign object has been left in a patient, the two year limit can be extended for up to a year from the date the object has been discovered. I have seen a number of disturbing cases in which doctors have left surgical sponges and towels in patients.

A one-year extension is also allowed “in cases in which fraud, concealment or intentional misrepresentation prevented discovery of the injury within the two-year period.”

An extension of up to one year is also available in cases involving a claim for the negligent failure to diagnose a malignant tumor or cancer.

This legislation gives patients in certain circumstances more time to seek the justice they deserve. As a medical malpractice injury attorney in Virginia Beach, I see many incidences of failure to diagnose chronic conditions and mistakes made by doctors.

The relevant legislation is as follows:

§ 8.01-243. Personal action for injury to person or property generally; extension in actions for malpractice against health care provider.

A. Unless otherwise provided in this section or by other statute, every action for personal injuries, whatever the theory of recovery, and every action for damages resulting from fraud, shall be brought within two years after the cause of action accrues.

B. Every action for injury to property, including actions by a parent or guardian of an infant against a tort-feasor for expenses of curing or attempting to cure such infant from the result of a personal injury or loss of services of such infant, shall be brought within five years after the cause of action accrues. An infant’s claim for medical expenses pursuant to subsection B of § 8.01-36 accruing on or after July 1, 2013, shall be governed by the applicable statute of limitations that applies to the infant’s cause of action.

C. The two-year limitations period specified in subsection A shall be extended in actions for malpractice against a health care provider as follows:

1. In cases arising out of a foreign object having no therapeutic or diagnostic effect being left in a patient’s body, for a period of one year from the date the object is discovered or reasonably should have been discovered;

2. In cases in which fraud, concealment or intentional misrepresentation prevented discovery of the injury within the two-year period, for one year from the date the injury is discovered or, by the exercise of due diligence, reasonably should have been discovered; and

3. In a claim for the negligent failure to diagnose a malignant tumor or cancer, for a period of one year from the date the diagnosis of a malignant tumor or cancer is communicated to the patient by a health care provider, provided the health care provider’s underlying act or omission was on or after July 1, 2008. Claims under this section for the negligent failure to diagnose a malignant tumor or cancer, where the health care provider’s underlying act or omission occurred prior to July 1, 2008, shall be governed by the statute of limitations that existed prior to July 1, 2008.

If you have suffered an injury in a hospital or a nursing home, or your health has been seriously affected by a failure to diagnose, call our Virginia Beach medical malpractice lawyers for a free consultation at 757.455.0077. See these frequently asked questions about medical malpractice in Virginia.