How Does a Medical Malpractice Lawsuit Work?

Any time a medical professional fails to comply with the accepted “standard of care,” he or she may be guilty of medical malpractice. The standard of care refers to what a reasonable doctor, nurse, pharmacist, hospital, or other health care provider would do, given the same set of circumstances. When a health care provider fails to follow this standard of care and injury or death is the result, the health care provider can be held liable for the harm and can be compelled to compensate the victim for lost wages, reimbursement for medical expenses, pain, and suffering, and other damages.

What is the Burden of Proof in a Medical Malpractice Claim?

In the state of Virginia, the plaintiff in a medical malpractice claim must show what a reasonable standard of care would have been, that his or her health care provider failed to comply with this standard of care, that injuries or death resulted from this lack of a reasonable standard of care, and what those personal injuries and damages actually were.

What are the Statutes of Limitations in the State of Virginia for Medical Malpractice?

In the state of Virginia, the statute of limitations for medical malpractice is two years from the date of the injury, in most cases. If a wrongful death occurred as a result of medical malpractice, a wrongful death claim must be filed by the executor or administrator of the estate within two years of the death. If a child under the age of 8 is a victim of medical malpractice, the statutes are a bit more flexible; the child has until his or her 10th birthday to file a medical malpractice claim. The “continuing treatment rule” also extends the statute of limitations in medical malpractice claims. If there has been a significantly uninterrupted treatment for the same condition by the health care provider, the lawsuit must be filed within two years from the date of the last treatment.

What is the continuous treatment rule in Virginia?

In Virginia, the continuing treatment rule is applicable when the actions leading to a medical malpractice claim took place during a "continuous and substantially uninterrupted course of examination and treatment" for a specific ailment.

What The Types of Damages for Malpractice Claims?

There are many different types of damages a victim of medical malpractice may claim, including the following:
  • Compensatory damages are meant to award the victim actual costs resulting from the in injuries, such as medical costs (hospital costs, prescription drug costs, costs for rehabilitative therapies and surgical procedures, doctor visits, etc.) and lost wages, both current and future (should the victim be unable to return to work).
  • Non-economic damages are meant to award the victim for more intangible costs, such as pain and suffering.
  • Occasionally, if a doctor or other health care provider has acted in a particularly egregious manner, willfully or maliciously harming the victim, punitive damages may be awarded. Punitive damages are meant to punish the medical provider for reckless behavior and to deter such behavior among other health care professionals in the future.
Under Virginia malpractice law,  a cap may apply and you should consult with an attorney to learn more.

What are Some Unique Aspects of Medical Malpractice in the State of Virginia?

Medical malpractice is a very specific legal field; a successful medical malpractice claim requires significant levels of knowledge regarding the medical facts, significant legal knowledge regarding Virginia medical malpractice laws, and plenty of expert testimony. Health care professionals must provide testimony to show how the standard of care was breached, and expert testimony is required to ensure the jury fully understands how the medical malpractice occurred.

What is the first step in a malpractice suit?

Before initiating a lawsuit, it is required to provide written notice to the opposing party at least 90 days in advance. This process, known as giving notice, involves informing them of the legal basis for your lawsuit.

Comparative Negligence in Virginia Medical Malpractice Cases

Virginia follows a strict contributory negligence rule, which means that if the plaintiff is found to be even slightly responsible for their own injury, they may be barred from recovering any damages. This makes it imperative to have a skilled attorney who can effectively counter any claims that the plaintiff contributed to their own harm. Understanding how to navigate the complexities of contributory negligence is crucial for a successful medical malpractice claim.

Why is it Necessary to Hire a Knowledgeable Virginia Medical Malpractice Attorney?

Because medical malpractice law is complex, those who have been injured by a medical error need solid legal representation. It would likely never be a good idea to attempt to negotiate for a medical malpractice settlement on your own. Those who are legally represented are much more likely to receive a fair settlement. The attorneys at Tronfeld West & Durrett will ensure your rights are protected, and that you receive an equitable medical malpractice award that fully covers your expenses, both now and in the future. Contact us today.