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