| -- End Ad Box ---> | | | | increases of $75,000 beginning in 2007 will bring |
| In many respects, Virginia has been more | | | | the damage cap to $2 million for acts or |
| conservative about modifying the common law | | | | omissions on or after July 1, 2008. Va. Code Ann. |
| than its sister states. To the extent modifications | | | | § 8.01-581.15. The Virginia Supreme Court has |
| have been approved, many restrict rather than | | | | twice considered this legislation and held that it |
| expand the rights of the victims of medical | | | | does not violate the U.S. or Virginia constitutions. |
| negligence. For example, Virginia has adopted | | | | Pulliam v. Coastal Emergency Services, Inc., 257 |
| three major modifications of medical malpractice | | | | Va. 1, 509 S.E.2d 307 (1999); Etheridge v. Medical |
| law: a damage cap, screening of proposed lawsuits | | | | Center Hospitals, 237 Va. 87, 376 S.E.2d 525 |
| by a medical review panel, and a state fund to | | | | (1989). |
| compensate victims of birth-related neurological | | | | A settlement with one defendant reduces the |
| injuries. Much of the legislation specific to medical | | | | maximum liability of the others, because the cap |
| malpractice can be found in the Medical Malpractice | | | | limits the total amount recoverable for an injury |
| Act, Va. Code Ann. §§ 8.01-581.1 to | | | | to a patient, regardless of the number of theories |
| 8.01-581.20. | | | | or defendants. Fairfax Hospital System v. Nevitt, |
| Statutes of Limitations | | | | 249 Va. 591, 457 S.E.2d 10 (1995). This includes |
| All medical malpractice actions for injury (as | | | | punitive damages. Bulala v. Boyd, 239 Va. 218, 389 |
| opposed to death) must be brought within two | | | | S.E.2d 670 (1990). In cases arising prior to March |
| years from the date the cause of action accrued. | | | | 28, 1994, when the definition of "health care |
| Va. Code Ann. § 8.01-243(A). In § 8.01-230, a | | | | provider" was broadened in Va. Code Ann. § |
| cause of action accrues at the time of | | | | 8.01-581.1, a physician's professional corporation |
| injury: the cause of action shall be deemed to | | | | may be subject to uncapped liability. Schwartz v. |
| accrue and the prescribed limitation period shall | | | | Brownlee, 253 Va. 159, 482 S.E.2d 827 (1997). |
| begin to run from the date the injury is sustained | | | | Virginia limits punitive damages to $350,000. Va. |
| in the case of injury to the person... and not when | | | | Code Ann. § 8.01-38.1. This cap has also been |
| the resulting damage is discovered. | | | | determined to be constitutional by the Fourth |
| This two-year limitation has long been applicable, | | | | Circuit Court of Appeals. Wackenhut Applied |
| and strictly enforced, in Virginia. Virginia is one of | | | | Technologies Center, Inc. v. Sygnetron Protection |
| the minority states that use the | | | | Systems, Inc., 979 F.2d 980 (4th Cir. 1992). |
| date-of-the-act rule, which means that the | | | | Statutory Cap on Attorneys' Fees |
| plaintiff must file suit within two years of the date | | | | There is no Virginia statute setting a limit on |
| of the injury regardless of how obscure or | | | | attorneys' fees in medical malpractice actions. |
| undiscoverable the injury might have been. | | | | Periodic Payments |
| Exceptions to the two-year rule are (i) cases | | | | Periodic payments or structured settlements are |
| involving minors or mentally incompetent people | | | | allowed, but not required in Virginia. A settlement |
| who are in law regarded as unable to know their | | | | agreement on behalf of a disabled person, |
| legal rights and (ii) cases where the injury was | | | | including the situation where the plaintiff is a minor |
| fraudulently concealed from the person. | | | | (under the age of 18) involving periodic payments |
| The Virginia Supreme Court rejected the judicial | | | | must be reviewed by the court and secured by a |
| adoption of a discovery rule, Nunnally v. Artis, 254 | | | | bond or insurance. Va. Code Ann. § 8.01-424. |
| Va. 247, 492 S.E.2d 126, (1997), but held that | | | | Collateral Source Rule |
| continuing treatment for the same | | | | Virginia recognizes the collateral source rule, under |
| conditions tolls the statute of limitations until | | | | which the plaintiff’s receipt of collateral |
| treatment ends. Grubbs v. Rawls, 235 Va. 607, | | | | payments (health insurance, paid leave of absence |
| 369 S.E.2d 683 (1988). The court defined | | | | from work, etc.) does not reduce his recovery. |
| continuous treatment as not mere | | | | This protection is statutory for lost income (Va. |
| continuity of a general physician-patient | | | | Code Ann. § 8.01-35) but the courts follow the |
| relationship; we mean diagnosis and treatment for | | | | rule for all damages in tort cases. Schickling v. |
| the same relating illness or injuries, continuing after | | | | Aspinall, 235 Va. 472, 369 S.E.2d 172 (1988). |
| the alleged act of malpractice. The court | | | | Pre-Judgment Interest |
| acknowledged, however, the rule would not apply | | | | In Advanced Marine Enterprises v. PRC, Inc., 256 |
| to a single, isolated act of malpractice. Farley v. | | | | Va. 106, 501 S.E.2d 148 (1998), which was not a |
| Goode, 219 Va. 969, 252 S.E.2d 594 (1979). In | | | | malpractice case, the Virginia Supreme Court |
| other words, when an act of malpractice occurred | | | | reversed an award of pre-judgment interest on |
| and that physician continued to see the patient | | | | the unliquidated part of the damages, stating, |
| over a course of years for an unrelated condition, | | | | "Generally, prejudgment interest is not allowed on |
| the rule would not apply. | | | | unliquidated damages in dispute between the |
| In foreign object cases (surgical sponges, needles, | | | | parties." This should apply to most medical |
| etc.) and cases of fraud or concealment (i.e., | | | | malpractice claims. However, the decision also |
| alteration of medical records) the statute is | | | | notes that Va. Code Ann. § 8.01-382 leaves the |
| extended to one year from the date the object | | | | date from which interest should run to the sound |
| or injury is discovered or reasonably should have | | | | discretion of the trial court. In Pulliam v. Coastal |
| been discovered. However, this extension is | | | | Emergency Services, Inc., 257 Va. 1, 509 S.E.2d |
| subject to a ten-year limit from the time the | | | | 307 (1999), the court reversed an award of |
| cause of action accrued. Va. Code Ann. § | | | | pre-judgment interest because it exceeded the |
| 8.01-243(C). | | | | damage cap, but did not comment on whether |
| In cases in which the health care provider’s | | | | such interest should have been awarded at all. In |
| negligence caused the patient’s death | | | | cases where pre-judgment interest is proper, the |
| (Wrongful Death Claims), suit must be filed within | | | | rate is six percent. Va. Code Ann. § 6.1-330.54. |
| two years of death. Va. Code Ann. § | | | | Birth Injury Claims |
| 8.01-244(B). | | | | Virginia does not have a general patient |
| If a person entitled to bring a personal action dies | | | | compensation fund covering all medical malpractice |
| with no such action pending before the expiration | | | | claims. However, the Birth-Related Neurological |
| of [the two-year] limitation period... then an action | | | | Injury Compensation Act (Va. Code Ann. §§ |
| may be commenced by the decedent’s | | | | 38.2-5000 to 38.2-5021), covers infants who |
| personal representative before the expiration of | | | | suffer permanent, disabling damage to the brain |
| the limitation period... or within one year after his | | | | or spine caused by oxygen deprivation or |
| qualification as personal representative, whichever | | | | mechanical injury during labor, delivery, or |
| occurs later. | | | | resuscitation. This no-fault program is the |
| However, § 8.01-229(B)(6) states that: | | | | exclusive remedy for such infants and their |
| [i]f there is an interval of more than two years | | | | parents against participating physicians and |
| between the death of any person in whose favor | | | | hospitals, who must pay an annual assessment. |
| . . . a cause of action has accrued or shall | | | | Va. Code Ann. §§ 38.2-5001 and 38.2-5002. A |
| subsequently accrue and the qualification of such | | | | claim filed under this statute proceeds in an |
| person’s personal representative, such | | | | adversarial fashion and the Virginia Attorney |
| personal representative shall, for the purposes of | | | | General represents the Fund in opposing the |
| [the statute], be deemed to have qualified on the | | | | infant’s claim. |
| last day of such two-year period. | | | | If the claim is determined to be compensable, the |
| A parent's action for medical expenses caused by | | | | Fund provides for lifetime medical expenses as |
| injury to a minor must be brought within five | | | | well as one-half of the Virginia average weekly |
| years. Va. Code Ann. § 8.01-243(B). A minor's | | | | wage after the child reaches age eighteen. Va. |
| medical malpractice action for injury or death | | | | Code Ann. § 38.2-5009. Many hospitals and |
| must be commenced within two years from the | | | | physicians choose not to participate. In cases |
| date of the last act of negligence, unless the child | | | | arising prior to April 1, 2000, a participating |
| is less than eight years of age, in which case the | | | | physician's professional corporation may be sued |
| action must be brought by the child's tenth | | | | even in cases otherwise covered exclusively by |
| birthday. Va. Code Ann. § 8.01-243.1. The Virginia | | | | the fund. Jan Paul Fruiterman, M.D. & Associates v. |
| Supreme Court has upheld the constitutionality of | | | | Waziri, 259 Va. 540, 525 S.E.2d 552 (2000). |
| this statute. Willis v. Mullett, 263 Va. 653, 561 | | | | Although the legislature promptly closed this |
| S.E.2d 705 (2002). Incapacity (typically a | | | | loophole by expanding the definition of |
| substantial mental or physical handicap) also tolls | | | | "participating physician" in Va. Code Ann. § |
| the running of the statute of limitations during the | | | | 38.2-5001, the Virginia Supreme Court declined to |
| period of incapacity. Va. Code Ann. § | | | | apply the amendment retroactively. Berner v. Mills, |
| 8.01-229(A). | | | | 265 Va. 408, 579 S.E.2d 159 (2003). |
| Contributory or Comparative Negligence | | | | Immunities |
| Virginia recognizes the doctrine of contributory | | | | Virginia has waived sovereign immunity in tort |
| negligence in medical malpractice cases. A plaintiff's | | | | cases, subject to significant limitations. No claimant |
| contributory negligence may bar her recovery | | | | may recover more than $100,000 or the limits of |
| entirely, but the patient’s negligence must | | | | applicable insurance, whichever is greater. In |
| be concurrent with the defendant's negligence. | | | | medical negligence cases, the immunity most |
| Sawyer v. Comerci, 264 Va. 68, 563 S.E.2d 748 | | | | often comes into consideration when there is a |
| (2002); Ponirakis v. Choi, 262 Va. 119, 546 S.E.2d | | | | claim against the Medical College of Virginia or the |
| 707 (2001). | | | | University of Virginia Health System. For example, |
| Joint and Several Liability | | | | sovereign immunity has been applied to protect |
| Virginia imposes joint and several liability on joint | | | | hospital administrators as well as surgical interns |
| tortfeasors. Va. Code Ann. § 8.01-443. Thus, | | | | and residents at the University of Virginia Hospital. |
| any joint tortfeasor against whom judgment is | | | | Lawhorne v. Harlan, 214 Va. 405, 200 S.E.2d 569 |
| entered is liable to the plaintiff for the entire | | | | (1973), overruled on other grounds, First Virginia |
| judgment, regardless of the tortfeasor's degree | | | | Bank v. Baker, 225 Va. 72, 301 S.E.2d 8 (1983); |
| or percentage of fault. For example, in a hospital | | | | Hall v. Roberts, 548 F. Supp. 498 (W.D. Va. 1982). |
| setting, if the attending doctor and nurse are both | | | | This immunity may extend to other physicians |
| negligent, then each one can be held responsible | | | | employed by the state, depending on the degree |
| for the patient’s entire injury even if part | | | | of control exercised over them, Lohr v. Larsen, |
| of that injury was caused by the other’s | | | | 246 Va. 81, 431 S.E.2d 642, (1993), but never to |
| negligence. | | | | independent contractors. Atkinson v. Sachno, 261 |
| Vicarious Liability | | | | Va! |
| Under the doctrine of respondeat superior, | | | | . 278, 541 S.E.2d 902 (2001). Virginia has not |
| hospitals in Virginia are vicariously liable for the | | | | waived sovereign immunity for local units of |
| negligence of their employees but not that of | | | | government. Municipalities are immune for |
| independent contractors. McDonald v. Hampton | | | | negligence in the performance of governmental |
| Training School for Nurses, 254 Va. 79, 486 S.E.2d | | | | functions, including the operation of a hospital. |
| 299 (1997). Whether a physician should be | | | | Edwards v. Portsmouth, 237 Va. 167, 375 S.E.2d |
| considered an employee is a question of fact not | | | | 747 (1989) (dictum). |
| to be determined by whether the hospital calls | | | | A charitable entity is not liable to its beneficiaries |
| him one, but by the factors of selection and | | | | for the negligent acts of its agents if due care |
| engagement, payment of compensation, power | | | | has been exercised in their selection and retention. |
| of dismissal, and (most importantly) power to | | | | Mann v. Sentara Hospitals, Inc., 59 Va. Cir. 433, |
| control the physician's work. A physician's exercise | | | | 2002 Va. Cir. LEXIS 363 (2002) (discussing |
| of professional judgment in the performance of | | | | application of the doctrine to a medical faculty |
| professional duties is a factor, but not the only | | | | foundation). However, charitable immunity has |
| factor, in deciding whether the hospital has the | | | | been withdrawn from hospitals, except where a |
| power to control his work. There is also authority | | | | hospital renders exclusively charitable medical |
| for holding a hospital liable for the act of a | | | | services, or where the patient signed an express |
| physician on the theory of negligent credentialing. | | | | agreement providing that all medical services |
| Stottlemyer v. Ghramm, 2001 Va. Cir. LEXIS 501 | | | | would be supplied on a charitable basis. Va. Code |
| (Va. Cir. Ct. July 13, 2001)(affirmed at 2004 Va. | | | | Ann. § 8.01-38. |
| LEXIS 99 (2004). In other wor!ds, a hospital can | | | | Medical Review Panels |
| be held legally responsible for granting hospital | | | | The Virginia Medical Malpractice Act provides for a |
| admission and treatment privileges to an | | | | system of medical malpractice review panels to |
| unqualified physician. | | | | assess the validity of medical malpractice claims. |
| Expert Testimony | | | | At the request of either party, the Supreme |
| Except for rare cases within the common | | | | Court of Virginia appoints a panel to review the |
| knowledge and experience of lay jurors, expert | | | | claim, consisting of two doctors, two lawyers, and |
| testimony is necessary to establish the standard | | | | a non-voting judge as chairman. Va. Code Ann. |
| of care, a deviation from the standard, and the | | | | §§ 8.01-581.2 and 8.01-581.3. The panel |
| proximate cause of injury. Perdieu v. Blackstone | | | | determines whether the evidence supports the |
| Family Practice Center, Inc., 264 Va. 408, 568 | | | | conclusion that the health care provider failed to |
| S.E.2d 703 (2002). To testify as an expert on the | | | | comply with the relevant standard of care and |
| standard of care a witness must demonstrate | | | | whether that failure proximately caused the injury. |
| expert knowledge of the standards of the | | | | Va. Code Ann. § 8.01-581.7. The findings of the |
| defendant's specialty and have had an active | | | | panel are non-binding and the claimant has the |
| clinical practice in either the defendant's specialty, | | | | option of filing a lawsuit after the panel has made |
| or a related field of medicine, within one year of | | | | its ruling. However, any opinion of the medical |
| the date of the alleged act or omission. Va. Code | | | | review panel is admissible as evidence in a |
| Ann. § 8.01-581.20. | | | | subsequent action. Both parties have the right to |
| Damage Caps | | | | call panel members, except the chairman, as |
| Virginia imposes a cap (limit) on damages of all | | | | witnesses. Va. Code Ann. § 8.01-581.8. |
| kinds in medical malpractice cases. For claims | | | | Arbitration |
| arising out of acts or omissions prior to August 1, | | | | Arbitration is a process by which potential litigants |
| 1999, the damage cap is $1 million. For acts or | | | | can resolve their dispute without resorting to the |
| omissions on or after August 1, 1999, and before | | | | civil court system. In most arbitration cases, the |
| July 1, 2000, the cap is $1.5 million. The cap is | | | | parties agree to arbitrate their dispute after the |
| increasing by $50,000 every July 1. Two final | | | | event occurs and the claim arises. |