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