What is the Virginia statute of limitations for a medical malpractice lawsuit?
First, some background for readers who aren’t fluent
in the language of “legalese.” A statute of limitations is a state law
that sets a limit on the amount of time you have to file a lawsuit after you
have suffered some type of loss or injury.
Virginia’s standard statute of limitations for a medical malpractice lawsuit
is the same as the overall rule that applies to most types of lawsuits for
injury, which can be found at Code of
Virginia section 8.01-243. This rule specifies that the case “shall be brought within two years after the cause of action
accrues” -- which means two years from the date on which the
health care provider committed the alleged malpractice.
There is a larger catch-all filing deadline for
medical malpractice lawsuits in Virginia, which says that these kinds of cases
cannot be filed “beyond ten years from the date the
cause of action accrues.” This is known as
a “statute of repose,” and it means that no lawsuit can be filed if more than ten years have passed since the
The only exceptions to this larger ten-year deadline
are cases where a foreign object was left in a patient, and where “fraud, concealment or intentional
misrepresentation prevented discovery of the injury within the two-year period.” In those situations, the filing deadline is “one year from the date the injury is discovered
or, by the exercise of due diligence, reasonably should have been discovered.” Keep in mind that if you are relying on this “discovery
rule,” as the plaintiff you have the burden of proving that you did not
discover right away that the medical error occurred, and
that you could not have reasonably discovered the malpractice until you
Virginia’s statute of limitations also spells out a
rule for medical malpractice claims involving "negligent failure to diagnose a malignant tumor or cancer.”
In these cases, the lawsuit filing deadline is extended for a period of “one
year from the date the diagnosis of a malignant tumor or cancer is communicated
to the patient by a health care provider."
Finally, remember that if Virginia’s statute of
limitations deadline has passed, and you try to file your lawsuit anyway, the health
care provider you’re trying to sue will ask the court to dismiss the case as time-barred.
If the court grants the request (which is a near certainty), that will be the
end of your lawsuit. So it’s imperative that you pay attention to the filing
deadline. Learn more about the Statute of Limitations in a Medical Malpractice Case.
by: David Goguen, J.D.