| In many respects, Virginia has been more | | | | Emergency Services, Inc., 257 Va. 1, 509 |
| conservative about modifying the common law | | | | S.E.2d 307 (1999); Etheridge v. Medical |
| than its sister states. To the extent | | | | Center Hospitals, 237 Va. 87, 376 S.E.2d 525 |
| modifications have been approved, many | | | | (1989). |
| restrict rather than expand the rights of the | | | | |
| victims of medical negligence. For example, | | | | A settlement with one defendant reduces the |
| Virginia has adopted three major | | | | maximum liability of the others, because the |
| modifications of medical malpractice law: a | | | | cap limits the total amount recoverable for |
| damage cap, screening of proposed lawsuits by | | | | an injury to a patient, regardless of the |
| a medical review panel, and a state fund to | | | | number of theories or defendants. Fairfax |
| compensate victims of birth-related | | | | Hospital System v. Nevitt, 249 Va. 591, 457 |
| neurological injuries. Much of the | | | | S.E.2d 10 (1995). This includes punitive |
| legislation specific to medical malpractice | | | | damages. Bulala v. Boyd, 239 Va. 218, 389 |
| can be found in the Medical Malpractice Act, | | | | S.E.2d 670 (1990). In cases arising prior to |
| Va. Code Ann. §§ 8.01-581.1 to | | | | March 28, 1994, when the definition of |
| 8.01-581.20. | | | | "health care provider" was broadened in Va. |
| | | | Code Ann. § 8.01-581.1, a physician's |
| Statutes of Limitations | | | | professional corporation may be subject to |
| | | | uncapped liability. Schwartz v. Brownlee, 253 |
| All medical malpractice actions for injury | | | | Va. 159, 482 S.E.2d 827 (1997). |
| (as opposed to death) must be brought within | | | | |
| two years from the date the cause of action | | | | Virginia limits punitive damages to $350,000. |
| accrued. Va. Code Ann. § 8.01-243(A). In | | | | Va. Code Ann. § 8.01-38.1. This cap has |
| § 8.01-230, a cause of action "accrues" at | | | | also been determined to be constitutional by |
| the time of injury: "the cause of action | | | | the Fourth Circuit Court of Appeals. |
| shall be deemed to accrue and the prescribed | | | | Wackenhut Applied Technologies Center, Inc. |
| limitation period shall begin to run from the | | | | v. Sygnetron Protection Systems, Inc., 979 |
| date the injury is sustained in the case of | | | | F.2d 980 (4th Cir. 1992). |
| injury to the person... and not when the | | | | |
| resulting damage is discovered." | | | | Statutory Cap on Attorneys' Fees |
| | | | |
| This two-year limitation has long been | | | | There is no Virginia statute setting a limit |
| applicable, and strictly enforced, in | | | | on attorneys' fees in medical malpractice |
| Virginia. Virginia is one of the minority | | | | actions. |
| states that use the "date-of-the-act" rule, | | | | |
| which means that the plaintiff must file suit | | | | Periodic Payments |
| within two years of the date of the injury | | | | |
| regardless of how obscure or undiscoverable | | | | Periodic payments or structured settlements |
| the injury might have been. Exceptions to the | | | | are allowed, but not required in Virginia. A |
| two-year rule are (i) cases involving minors | | | | settlement agreement on behalf of a disabled |
| or mentally incompetent people who are in law | | | | person, including the situation where the |
| regarded as unable to know their legal rights | | | | plaintiff is a minor (under the age of 18) |
| and (ii) cases where the injury was | | | | involving periodic payments must be reviewed |
| fraudulently concealed from the person. | | | | by the court and secured by a bond or |
| | | | insurance. Va. Code Ann. § 8.01-424. |
| The Virginia Supreme Court rejected the | | | | |
| judicial adoption of a discovery rule, | | | | Collateral Source Rule |
| Nunnally v. Artis, 254 Va. 247, 492 S.E.2d | | | | |
| 126, (1997), but held that "continuing | | | | Virginia recognizes the collateral source |
| treatment for the same conditions" tolls the | | | | rule, under which the plaintiff's receipt of |
| statute of limitations until treatment ends. | | | | collateral payments (health insurance, paid |
| Grubbs v. Rawls, 235 Va. 607, 369 S.E.2d 683 | | | | leave of absence from work, etc.) does not |
| (1988). The court defined "continuous | | | | reduce his recovery. This protection is |
| treatment" as not "mere continuity of a | | | | statutory for lost income (Va. Code Ann. § |
| general physician-patient relationship; we | | | | 8.01-35) but the courts follow the rule for |
| mean diagnosis and treatment for the same | | | | all damages in tort cases. Schickling v. |
| relating illness or injuries, continuing | | | | Aspinall, 235 Va. 472, 369 S.E.2d 172 (1988). |
| after the alleged act of malpractice." The | | | | |
| court acknowledged, however, the rule would | | | | Pre-Judgment Interest |
| not apply to a single, isolated act of | | | | |
| malpractice. Farley v. Goode, 219 Va. 969, | | | | In Advanced Marine Enterprises v. PRC, Inc., |
| 252 S.E.2d 594 (1979). In other words, when | | | | 256 Va. 106, 501 S.E.2d 148 (1998), which was |
| an act of malpractice occurred and that | | | | not a malpractice case, the Virginia Supreme |
| physician continued to see the patient over a | | | | Court reversed an award of pre-judgment |
| course of years for an unrelated condition, | | | | interest on the unliquidated part of the |
| the rule would not apply. | | | | damages, stating, "Generally, prejudgment |
| | | | interest is not allowed on unliquidated |
| In foreign object cases (surgical sponges, | | | | damages in dispute between the parties." This |
| needles, etc.) and cases of fraud or | | | | should apply to most medical malpractice |
| concealment (i.e., alteration of medical | | | | claims. However, the decision also notes that |
| records) the statute is extended to one year | | | | Va. Code Ann. § 8.01-382 leaves the date |
| from the date the object or injury is | | | | from which interest should run to the sound |
| discovered or reasonably should have been | | | | discretion of the trial court. In Pulliam v. |
| discovered. However, this extension is | | | | Coastal Emergency Services, Inc., 257 Va. 1, |
| subject to a ten-year limit from the time the | | | | 509 S.E.2d 307 (1999), the court reversed an |
| cause of action accrued. Va. Code Ann. § | | | | award of pre-judgment interest because it |
| 8.01-243(C). | | | | exceeded the damage cap, but did not comment |
| | | | on whether such interest should have been |
| In cases in which the health care provider's | | | | awarded at all. In cases where pre-judgment |
| negligence caused the patient's death | | | | interest is proper, the rate is six percent. |
| (Wrongful Death Claims), suit must be filed | | | | Va. Code Ann. § 6.1-330.54. |
| within two years of death. Va. Code Ann. § | | | | |
| 8.01-244(B). | | | | Birth Injury Claims |
| | | | |
| If a person entitled to bring a personal | | | | Virginia does not have a general patient |
| action dies with no such action pending | | | | compensation fund covering all medical |
| before the expiration of [the two-year] | | | | malpractice claims. However, the |
| limitation period... then an action may be | | | | Birth-Related Neurological Injury |
| commenced by the decedent's personal | | | | Compensation Act (Va. Code Ann. §§ |
| representative before the expiration of the | | | | 38.2-5000 to 38.2-5021), covers infants who |
| limitation period... or within one year after | | | | suffer permanent, disabling damage to the |
| his qualification as personal representative, | | | | brain or spine caused by oxygen deprivation |
| whichever occurs later. | | | | or mechanical injury during labor, delivery, |
| | | | or resuscitation. This no-fault program is |
| However, § 8.01-229(B)(6) states that: | | | | the exclusive remedy for such infants and |
| | | | their parents against participating |
| [i]f there is an interval of more than two | | | | physicians and hospitals, who must pay an |
| years between the death of any person in | | | | annual assessment. Va. Code Ann. §§ |
| whose favor . . . a cause of action has | | | | 38.2-5001 and 38.2-5002. A claim filed under |
| accrued or shall subsequently accrue and the | | | | this statute proceeds in an adversarial |
| qualification of such person's personal | | | | fashion and the Virginia Attorney General |
| representative, such personal representative | | | | represents the Fund in opposing the infant's |
| shall, for the purposes of [the statute], be | | | | claim. |
| deemed to have qualified on the last day of | | | | |
| such two-year period. | | | | If the claim is determined to be compensable, |
| | | | the Fund provides for lifetime medical |
| A parent's action for medical expenses caused | | | | expenses as well as one-half of the Virginia |
| by injury to a minor must be brought within | | | | average weekly wage after the child reaches |
| five years. Va. Code Ann. § 8.01-243(B). A | | | | age eighteen. Va. Code Ann. § 38.2-5009. |
| minor's medical malpractice action for injury | | | | Many hospitals and physicians choose not to |
| or death must be commenced within two years | | | | participate. In cases arising prior to April |
| from the date of the last act of negligence, | | | | 1, 2000, a participating physician's |
| unless the child is less than eight years of | | | | professional corporation may be sued even in |
| age, in which case the action must be brought | | | | cases otherwise covered exclusively by the |
| by the child's tenth birthday. Va. Code Ann. | | | | fund. Jan Paul Fruiterman, M.D. & Associates |
| § 8.01-243.1. The Virginia Supreme Court | | | | v. Waziri, 259 Va. 540, 525 S.E.2d 552 |
| has upheld the constitutionality of this | | | | (2000). Although the legislature promptly |
| statute. Willis v. Mullett, 263 Va. 653, 561 | | | | closed this loophole by expanding the |
| S.E.2d 705 (2002). Incapacity (typically a | | | | definition of "participating physician" in |
| substantial mental or physical handicap) also | | | | Va. Code Ann. § 38.2-5001, the Virginia |
| tolls the running of the statute of | | | | Supreme Court declined to apply the amendment |
| limitations during the period of incapacity. | | | | retroactively. Berner v. Mills, 265 Va. 408, |
| Va. Code Ann. § 8.01-229(A). | | | | 579 S.E.2d 159 (2003). |
| | | | |
| Contributory or Comparative Negligence | | | | Immunities |
| | | | |
| Virginia recognizes the doctrine of | | | | Virginia has waived sovereign immunity in |
| contributory negligence in medical | | | | tort cases, subject to significant |
| malpractice cases. A plaintiff's contributory | | | | limitations. No claimant may recover more |
| negligence may bar her recovery entirely, but | | | | than $100,000 or the limits of applicable |
| the patient's negligence must be concurrent | | | | insurance, whichever is greater. In medical |
| with the defendant's negligence. Sawyer v. | | | | negligence cases, the immunity most often |
| Comerci, 264 Va. 68, 563 S.E.2d 748 (2002); | | | | comes into consideration when there is a |
| Ponirakis v. Choi, 262 Va. 119, 546 S.E.2d | | | | claim against the Medical College of Virginia |
| 707 (2001). | | | | or the University of Virginia Health System. |
| | | | For example, sovereign immunity has been |
| Joint and Several Liability | | | | applied to protect hospital administrators as |
| | | | well as surgical interns and residents at the |
| Virginia imposes joint and several liability | | | | University of Virginia Hospital. Lawhorne v. |
| on joint tortfeasors. Va. Code Ann. § | | | | Harlan, 214 Va. 405, 200 S.E.2d 569 (1973), |
| 8.01-443. Thus, any joint tortfeasor against | | | | overruled on other grounds, First Virginia |
| whom judgment is entered is liable to the | | | | Bank v. Baker, 225 Va. 72, 301 S.E.2d 8 |
| plaintiff for the entire judgment, regardless | | | | (1983); Hall v. Roberts, 548 F. Supp. 498 |
| of the tortfeasor's degree or percentage of | | | | (W.D. Va. 1982). This immunity may extend to |
| fault. For example, in a hospital setting, if | | | | other physicians employed by the state, |
| the attending doctor and nurse are both | | | | depending on the degree of control exercised |
| negligent, then each one can be held | | | | over them, Lohr v. Larsen, 246 Va. 81, 431 |
| responsible for the patient's entire injury | | | | S.E.2d 642, (1993), but never to independent |
| even if part of that injury was caused by the | | | | contractors. Atkinson v. Sachno, 261 Va! |
| other's negligence. | | | | |
| | | | . 278, 541 S.E.2d 902 (2001). Virginia has |
| Vicarious Liability | | | | not waived sovereign immunity for local units |
| | | | of government. Municipalities are immune for |
| Under the doctrine of respondeat superior, | | | | negligence in the performance of governmental |
| hospitals in Virginia are vicariously liable | | | | functions, including the operation of a |
| for the negligence of their employees but not | | | | hospital. Edwards v. Portsmouth, 237 Va. 167, |
| that of independent contractors. McDonald v. | | | | 375 S.E.2d 747 (1989) (dictum). |
| Hampton Training School for Nurses, 254 Va. | | | | |
| 79, 486 S.E.2d 299 (1997). Whether a | | | | A charitable entity is not liable to its |
| physician should be considered an employee is | | | | beneficiaries for the negligent acts of its |
| a question of fact not to be determined by | | | | agents if due care has been exercised in |
| whether the hospital calls him one, but by | | | | their selection and retention. Mann v. |
| the factors of selection and engagement, | | | | Sentara Hospitals, Inc., 59 Va. Cir. 433, |
| payment of compensation, power of dismissal, | | | | 2002 Va. Cir. LEXIS 363 (2002) (discussing |
| and (most importantly) power to control the | | | | application of the doctrine to a medical |
| physician's work. A physician's exercise of | | | | faculty foundation). However, charitable |
| professional judgment in the performance of | | | | immunity has been withdrawn from hospitals, |
| professional duties is a factor, but not the | | | | except where a hospital renders exclusively |
| only factor, in deciding whether the hospital | | | | charitable medical services, or where the |
| has the power to control his work. There is | | | | patient signed an express agreement providing |
| also authority for holding a hospital liable | | | | that all medical services would be supplied |
| for the act of a physician on the theory of | | | | on a charitable basis. Va. Code Ann. § |
| negligent credentialing. Stottlemyer v. | | | | 8.01-38. |
| Ghramm, 2001 Va. Cir. LEXIS 501 (Va. Cir. Ct. | | | | |
| July 13, 2001)(affirmed at 2004 Va. LEXIS 99 | | | | Medical Review Panels |
| (2004). In other wor!ds, a hospital can be | | | | |
| held legally responsible for granting | | | | The Virginia Medical Malpractice Act provides |
| hospital admission and treatment privileges | | | | for a system of medical malpractice review |
| to an unqualified physician. | | | | panels to assess the validity of medical |
| | | | malpractice claims. At the request of either |
| Expert Testimony | | | | party, the Supreme Court of Virginia appoints |
| | | | a panel to review the claim, consisting of |
| Except for rare cases within the common | | | | two doctors, two lawyers, and a non-voting |
| knowledge and experience of lay jurors, | | | | judge as chairman. Va. Code Ann. §§ |
| expert testimony is necessary to establish | | | | 8.01-581.2 and 8.01-581.3. The panel |
| the standard of care, a deviation from the | | | | determines whether the evidence supports the |
| standard, and the proximate cause of injury. | | | | conclusion that the health care provider |
| Perdieu v. Blackstone Family Practice Center, | | | | failed to comply with the relevant standard |
| Inc., 264 Va. 408, 568 S.E.2d 703 (2002). To | | | | of care and whether that failure proximately |
| testify as an expert on the standard of care | | | | caused the injury. Va. Code Ann. § |
| a witness must demonstrate expert knowledge | | | | 8.01-581.7. The findings of the panel are |
| of the standards of the defendant's specialty | | | | non-binding and the claimant has the option |
| and have had an active clinical practice in | | | | of filing a lawsuit after the panel has made |
| either the defendant's specialty, or a | | | | its ruling. However, any opinion of the |
| related field of medicine, within one year of | | | | medical review panel is admissible as |
| the date of the alleged act or omission. Va. | | | | evidence in a subsequent action. Both parties |
| Code Ann. § 8.01-581.20. | | | | have the right to call panel members, except |
| | | | the chairman, as witnesses. Va. Code Ann. |
| Damage Caps | | | | § 8.01-581.8. |
| | | | |
| Virginia imposes a cap (limit) on damages of | | | | Arbitration |
| all kinds in medical malpractice cases. For | | | | |
| claims arising out of acts or omissions prior | | | | Arbitration is a process by which potential |
| to August 1, 1999, the damage cap is $1 | | | | litigants can resolve their dispute without |
| million. For acts or omissions on or after | | | | resorting to the civil court system. In most |
| August 1, 1999, and before July 1, 2000, the | | | | arbitration cases, the parties agree to |
| cap is $1.5 million. The cap is increasing by | | | | arbitrate their dispute after the event |
| $50,000 every July 1. Two final increases of | | | | occurs and the claim arises. However, parties |
| $75,000 beginning in 2007 will bring the | | | | may also agree in advance of treatment to |
| damage cap to $2 million for acts or | | | | binding arbitration of any claim, so long as |
| omissions on or after July 1, 2008. Va. Code | | | | the patient has the option to withdraw from |
| Ann. § 8.01-581.15. The Virginia Supreme | | | | the agreement within 60 days after the |
| Court has twice considered this legislation | | | | termination of treatment. Va. Code Ann. § |
| and held that it does not violate the U.S. or | | | | 8.01-581.12. |
| Virginia constitutions. Pulliam v. Coastal | | | | |