As many as a third of all American physicians have been sued over allegations of medical malpractice. Further, about a third of all malpractice claims involve a patient’s death. About twenty-one percent of all adults have experienced a medical error; about half of those involved a prescribing error, while there are roughly 4,000 instances of surgical mistakes annually. Thirty-three percent of all medical malpractice claims involve a misdiagnosis or the lack of a diagnosis.

Most medical malpractice lawsuits are settled outside of court, with only about 7 percent ending up in court. In cases where medical malpractice led to quadriplegia, paraplegia, or irreversible brain damage, the payouts are the largest, averaging almost a million dollars each. Registered nurses have the highest number of medical malpractice claims filed against them, with physicians following close behind. Contrary to popular myths, surgeries on the wrong body part are rare, therefore, there are few medical malpractice claims for these occurrences.


Medical malpractice is an area of the law that deals with professional negligence and professional liability. The word “tort,” means “wrong.” Thus, tort law provides remedies for civil wrongs that are separate from criminal wrongs or wrongs associated with contract law. 

Medical malpractice may involve negligence—conduct that falls short of a standard. The standard used in tort law is that of the “reasonable” person. Would a similarly trained “reasonable” medical professional have acted in the same manner as the medical professional who caused your injuries?

When a medical professional commits any act or omission that deviates from the accepted norms of practice within the medical community and that act or omission results in injury, harm, or death, medical malpractice may have occurred. 


The statutes of limitations are windows of time in which an injured party has to file a lawsuit against the negligent party. The statutes of limitations vary from state to state, ranging from one year to as many as twelve years in states that incorporate statutes of repose—usually for a product liability claim. The statute of limitations in your state can also vary according to the type of civil case—medical malpractice, personal injury, product liability, or wrongful death.

While the statutes of limitations are generally considered absolute—meaning if you exceed the statute of limitations in your case you are forever barred from bringing a lawsuit—there are certain exceptions in some states. As an example, some states incorporate the Discovery Rule. The Discovery Rule can extend the amount of time you have to file your claim based on the fact that you did not discover your injury within the allotted amount of time. The “reasonable person” theory factors into the Discovery Rule; a jury will determine whether a reasonable person, given the same set of circumstances, would have discovered the injury before you did so. In the state of Virginia, the statute of limitations for medical malpractice is two years, in most cases. The exceptions to this two-year statute include:

  • When a foreign object—like a surgical sponge—has been left in a patient without the patient’s knowledge, the patient has either two years from the date of the injury, one year after the injury was discovered or should have been discovered, or a maximum of ten years from the date of the injury.
  • The “continuing treatment rule” in Virginia allows extra time above the two-year statute when there has been substantially uninterrupted treatment for the condition by the same healthcare provider. In this situation, the malpractice claim must be filed within two years of the date of the last treatment.
  • If the malpractice was committed by a medical professional employed by the Commonwealth of Virginia (VCU or UVA employees) you must bring a claim within one year, and claims have a cap of $100,000.

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Choosing the right Richmond medical malpractice lawyer can make or break your medical malpractice case. Medical malpractice cases can be extremely complex and most medical professionals will be represented by an aggressive insurance company attorney. Because of this, it is extremely important who you choose to represent you in your medical malpractice lawsuit. When you have a Richmond medical malpractice lawyer from Tronfeld West & Durrett, your chances of an equitable settlement go up exponentially. Medical malpractice is a specialized area that requires an attorney with both medical and legal knowledge and experience.

You may ask co-workers, friends, or family members for a medical malpractice lawyer referral, or you may find law firms online. Either way, at Tronfeld West & Durrett, we know you have many choices. We believe that if you give us a chance to speak to you about your potential medical malpractice claim you will quickly see the many benefits of hiring our firm. At our first meeting, you should feel free to ask questions about the viability of your medical malpractice claim (or anything else that has to do with your case). Below are just a few of our many positive reviews from satisfied clients.

$10 MILLION VERDICT For the second year in a row, Tronfeld West & Durrett and the Rawls Law Group have obtained the largest jury verdict in Virginia.  After a seven-day trial last year, a jury in Peterburg returned a verdict for $10,000,000.00 for the family of a 63-year-old woman who died as a result of negligent medical care.  Read About The Verdict

$1.25 MILLION SETTLEMENT SURGICAL PAD LEFT INSIDE CANCER PATIENT – Excerpt from Virginia Lawyers Weekly. Following the emergency surgery, Adcock remained an in-patient for more than 30 days and was in a rehabilitation unit for another month. He was discharged in mid-November 2016, but he continued to have problems and his wound did not heal. In early January 2017, Adcock noticed something protruding from his … Read About The Verdict

$435,000 SETTLEMENT INJURIES RESULTING FROM MEDICAL TRANSPORT VAN ACCIDENT – Excerpt from Virginia Lawyers Weekly. The plaintiff was a 71-yearold resident of a nursing home who was a passenger in a medical transport van. The host driver failed to stop at a stop sign, resulting in a T-bone collision on the passenger side of the van. The plaintiff was wheelchair-bound before the collision and had …  Read About The Verdict


While we regularly hear that all physicians fear medical malpractice claims, and even stop being doctors because of the number of “frivolous” medical malpractice claims, there is simply no evidence to back this up. In fact, medical malpractice outcomes have a solid correlation with the actual quality of care as judged by other physicians. NCBI studied this issue, finding that physicians win 80 percent of medical malpractice trials with weak evidence of medical negligence, 70 percent of medical malpractice trials with a medium level of evidence of medical negligence and half of the cases which can show strong evidence of medical negligence. Clearly, physicians are not being plagued with frivolous medical malpractice claims.


According to there are from 44,000 to 98,000 deaths—and more than one million injuries—which occur each year as a result of preventable medical errors which occur only in hospitals. Because there are now so many outpatient clinics being utilized, the number of preventable medical errors could actually be much, much higher. An NCBI article found a “harm rate” in primary care of one per every 35 consultations, with medication errors being the most prevalent type of harm. The Office of the Inspector General released a report in 2010, which found that a hospitalized Medicare patient has a one-in-seven chance of injury or death resulting from a preventable medical error.

While we regularly hear that all physicians fear medical malpractice claims, and even stop being doctors because of the number of “frivolous” medical malpractice claims, there is simply no evidence to back this up. In fact, medical malpractice outcomes have a solid correlation with the actual quality of care as judged by other physicians. NCBI studied this issue, finding that physicians win 80 percent of medical malpractice trials with weak evidence of medical negligence, 70 percent of medical malpractice trials with a medium level of evidence of medical negligence and half of the cases which can show strong evidence of medical negligence. Clearly, physicians are not being plagued with frivolous medical malpractice claims.


Medical malpractice occurs when a patient is harmed because a medical professional failed to adhere to accepted standards of medical care. There are many scenarios which could potentially lead to a medical malpractice claim, however the majority claims for medical malpractice will fall into one of the following categories:

  • Improper diagnosis or failure to diagnose. If the illness would have been discovered by a competent physician, or if that competent physician would have discovered the illness and potentially made a different diagnosis (and that different diagnosis would have resulted in a more favorable outcome), then a medical malpractice claim could be applicable.
  • Improper medical treatment. When a doctor treats a patient in a manner no other competent doctor would have, then there may be a basis for a medical malpractice claim. Similarly, if an appropriate treatment is incompetently administered, a medical malpractice claim could be warranted.
  • Neglecting to advise the patient about the potential dangers of a medical procedure or prescription medication. Doctors must inform patients of any known risks related to a specific medical procedure or prescription medication. If the patient would not have taken the drug or undergone the procedure if he or she had properly been informed of the risks, the doctor could be liable for a medical malpractice claim. Specifically, any of the following could be considered medical malpractice:
    • Surgical mistakes;
    • Administration of unapproved experimental drugs;
    • Failure to diagnose a medical issue;
    • Misdiagnosis of a medical issue;
    • Administering the wrong prescription drug;
    • Broken bones in a child or baby from being dropped by a health care professional;
    • Birth injuries;
    • Injury from waiting too long in an ER, and
    • Wrongful death.


To prove medical malpractice occurred, all of the following must be shown:

  • There was a doctor-patient relationship. This means you “hired” the doctor, and the doctor agreed to be your physician or surgeon. If you were being seen and treated by a physician, then the doctor-patient relationship obviously existed.
  • There was negligence involved. You cannot file a medical malpractice claim simply because you are unhappy about your treatment—you must be able to show your doctor caused harm in a manner that another qualified doctor, under the same circumstances, would not have done. In other words, your medical care must have been reasonably skillful and careful and must not have deviated from the medical standard of care.
  • The negligence of the doctor directly resulted in injury. Since those who seek a doctor’s advice or undergo a medical procedure are already sick or injured, it must be shown that the doctor’s actions—or lack of actions—directly led to injury.
  • The injuries sustained from the negligence of the doctor led to specific damages. If you suffered no specific harm—even though the doctor clearly performed below accepted medical standards—then you cannot file a medical malpractice claim. Specific harm could include physical pain or injury, mental anguish, additional medical bills or lost work and lost earning capacity. 

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What Is Negligence-Based Medical Malpractice?

Negligence-based medical malpractice is the most known type of malpractice. These cases occur when there is general neglect on the part of the health care professional (usually the patient’s doctor) that results in long-term or permanent damage to the patient.

To have a successful case, you must prove that there is a set standard of medical care and that your doctor did not meet this standard.

This negligence could be in the form of a misdiagnosis, an accident during a surgical procedure, or a wrongfully prescribed medication.

Knowing how each of these instances could affect you is crucial to building a stronger medical malpractice case if you are ever the victim of a doctor’s gross negligence.

Common Types of Negligence Based Medical Malpractice

To determine whether you have a negligence-based medical malpractice case or not, it is important to first prove whether your doctor made one of the following mistakes:


Having your doctor misdiagnose you can lead to an incorrect or delayed treatment of your condition, which could cause further injuries or even death.

However, a misdiagnosis alone does not constitute medical malpractice.

For it to constitute a negligence-based medical malpractice case, you must be able to prove that you doctor did not diagnose your symptoms in a “reasonably skillful or competent manner.”

In addition, the misdiagnosis must have caused you harm, such as undergoing the wrong treatment or not receiving the correct treatment.

Surgical Errors

A surgical error can cause you more pain and extend your healing time after an operation. But, that being said, not all surgical errors are grounds for medical malpractice.

As much as we hate to admit it sometimes, mistakes do happen — even in the operating room.

For your injuries to be labeled malpractice, your surgeon’s error(s) must have fallen below what a reasonable expert would consider a medical standard of care.

Common examples of surgical errors include the following “never events”:

  • Leaving a foreign object/surgical tool inside a patient
  • Performing the wrong surgery on a patient
  • Performing surgery on the wrong patient
  • Performing surgery on the wrong body part

Wrongfully Prescribed Medication

There are a number of ways a physician can make an error in prescribing drugs. These include:

  • Prescribing the wrong type of medication
  • Prescribing the wrong dosage of the medication
  • Mislabeling the medication
  • Failing to warn the patient of any side effects of the medication, including how it interacts with other medications and whether it could cause the patient to suffer an allergic reaction

Depending on where the error occurred your medical malpractice case could have an impact on more than just your doctor. You could bring up a suit against a nurse, the hospital, pharmacy, or pharmacist who helped with your prescription.

Knowing the difference between each of these types of medical malpractice is crucial to ensuring that your negligence-based case holds weight with a judge or rival attorney.

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How To Prove Negligence In A Medical Malpractice Case

There are four things you need to be able to prove in order to have a successful medical malpractice case.

Duty of Care

Duty of care is the first aspect of a negligence-based case that you must be able to prove.

Simply put, you must be able to prove that your doctor owed you a standard of care required by his or her industry. To do so, you need to prove you had a valid doctor-patient relationship.

Proving this element is relatively easy; usually you can establish the relationship with medical records.

Breach of Duty of Care

After establishing your relationship, you must be able to prove that your doctor failed to meet this standard of care he or she owed you.

This is where the negligence part comes into play. You must be able to show that your doctor knowingly or unknowingly (due to lack of proper care and attention) caused you further harm or injury in their treatment of your symptoms.

In almost every case, you will need an expert witness (e.g., another medical professional in the same field as the negligent doctor) to testify how your doctor deviated from the standard of care and caused your injury.

Causation of Your Injuries 

Proving causation simply means being able to show a tangible link between your doctor’s actions and your further sustained injuries.

Just because a doctor is negligent in their treatment of you does not mean he or she was necessarily the cause of any harm you later experienced. You must be able to prove that the doctor’s mistake was a direct cause of your injuries.

Presence of Damages

Proving the presence of damages means proving that you actually suffered a reasonably accepted injury or illness as a result of your medical practitioner’s negligence.

Once again, just proving a mistake or negligent act on the part of your doctor is not enough. For your medical malpractice case to hold weight, there must be proof that your doctor’s negligence actually caused you some sort of further injury or harm.

If there is no harm, there is no grounds for a malpractice case.

What is the difference between negligence and malpractice?

The distinction between negligence and malpractice lies in the intent and awareness of the healthcare professional involved. Medical negligence occurs when harm is accidentally caused during medical treatment, indicating a lack of due care or attention. On the other hand, medical malpractice occurs when a healthcare professional makes a mistake or decision while being fully aware of the potential risks and consequences, thus exhibiting a higher degree of culpability. While both involve breaches in the standard of care, the key difference lies in the level of awareness and intent behind the actions or omissions of the healthcare provider.

What is Informed Consent?

As a patient, you have the right know all the benefits, risks, and alternatives associated with any procedure you may undergo. Before medical providers can perform many different procedures, they must obtain informed consent from patients. If your doctor did not obtain your informed consent and you suffered any type of harm due to the procedure, you may have a viable medical malpractice claim.

Because of the potential for side effects or negative consequences, a doctor must inform his or her patients of a specific set of possibilities regarding the outcome of the procedure. Doctors must do this prior to beginning almost any treatment or procedure.

This information must include:

  • A basic description of how the doctor will perform the procedure
  • Reasoning behind the use of this specific treatment, and what the desired outcome is
  • A list of any risks involved with the procedure
  • An explanation of any alternative treatments that may be available in lieu of the upcoming procedure
  • What the likelihood of success will be regarding the procedure

It is crucial for a doctor to give you all of this knowledge up front before you ever agree to go through with any sort of medical procedure.

Why Does a Doctor Need To Obtain Informed Consent?

A lack of informed consent could lead to many unfortunate repercussions for you or a loved one. For example, a side effect of medication prescribed to you could cause cancerous cells to form or a new birthing treatment could cause serious, long-term damage to your unborn son or daughter.

A new treatment could cause you weeks of recovery time that you may not have been informed about. This could cause you to miss important work meetings or business trips, that directly impact your financial status.

Knowing these facts means knowing whether or not the risks associated with a procedure are worth you going through with it.

If you are not comfortable with the potential results of a medical treatment, you should be given the right to decline it. But without proper informed consent, you may never get that opportunity.

That is why it is very important for you to work with a team of legal experts who can assess your situation and determine if you were the victim of a wrongful medical malpractice case, due to a lack of informed consent.

A personal injury attorney from Tronfeld West & Durrett can help you file your lack of informed consent medical malpractice case today.

How Can I Prove a Lack Of Informed Consent Medical Malpractice Case?

Proving medical malpractice means proving four important points in court or to a rival attorney:

  • Your doctor had a duty to inform you of any risks or side effects associated with your treatment
  • Your doctor failed to meet his or her obligations in the regard
  • Had you known about all the ramifications of your treatment, you would likely not have gone through with the procedure
  • Your doctor’s failure to inform you led to suffering or harm on your behalf

Being able to prove these points will also take evidence — evidence that is more easily attainable when you have a team of legal professionals working to make your case successful.

This evidence includes proof that your doctor did not get your informed consent, such as an unsigned consent form. There must also be evidence showing that the procedure led you to experiencing further injury or harm.

That is one of the reasons why it is important to document any and all symptoms you experience after undergoing any type of medical procedure.

It is also crucial that you get the right team to help fight for you.

It is important to remember that nearly any treatment or surgery you receive from a medical expert requires consent. More importantly, just “consent” alone is not always enough.

The medical provider must have obtained informed consent.


Patients—or their family members—must always be their own medical advocates and must always be vigilant, speaking up when advice or treatments just don’t seem “right.” Educate yourself on medical treatments and expected outcomes, so you will know what to expect. Hospital staff should never resist questions asked by patients or their family members as such questions can help prevent poor medical outcomes. Doctors, nurses and other medical professionals are extremely busy and can inadvertently miss something therefore you must:

  • Always keep your health care team informed of all information related to your condition;
  • Ask for information about medical procedures and medications in language you can understand;
  • Talk to your pharmacist regarding prescription medications;
  • Seek additional information regarding your medical condition as well as any recommended tests or treatments—do not be afraid to ask questions, and
  • Double-check everything when you are in a hospital to prevent errors.


There are many reasons why hiring a Richmond medical malpractice lawyer from Tronfeld West & Durrett can be beneficial for your future. A medical malpractice attorney can accurately determine what your claim is worth. If your claim is extremely complex, your attorney will have access to experts who can correctly value your claim. Your Richmond medical malpractice lawyer will handle all the necessary paperwork—and medical malpractice claims involve a significant level of paperwork.

Not only will your attorney know all the documents required for your claim, but he or she will also be cognizant of the statutes of limitations and will know the best way to respond to correspondence from the other party or the insurance company. One of the most overwhelming parts of a medical malpractice claim is dealing with the insurance company.

Most people are unsure of whether they should grant a request to speak to an insurance company representative (you should not, without speaking to an attorney), and may be intimidated by the representative. Your Richmond medical malpractice lawyer from Tronfeld West & Durrett will work hard to get you the best settlement possible, defending your rights and your future at every turn.


If you have been the victim of medical malpractice, you could be seriously injured and unable to return to work through no fault of your own. You trusted a medical professional to do the best for you and your health, and that trust was betrayed. At Tronfeld West & Durrett, we can help you during this difficult time. We have offices conveniently located in your neighborhood, whether you are in Richmond, Petersburg, Chesterfield or Mechanicsville. We will sit down with you and go over the details of your medical malpractice claim, determining how the case should proceed. Contact Tronfeld West & Durrett today.

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