What Is Virginia's Medical Malpractice Statute of Limitations?

If you're thinking about taking legal action over a health care provider's mistake in Virginia, one of your first concerns is understanding how the state's medical malpractice statute of limitations applies to your potential lawsuit.

What Is a Statute of Limitations?

A statute of limitations is a law that sets a limit on the amount of time you have to file a lawsuit after you've suffered some type of loss or injury. Every state has these laws on the books. There are different time limits for different kinds of cases, but the consequences of missing the deadline are always the same: the court will almost certainly throw your lawsuit out if you've missed the filing window.

You Usually Have Two Years to File a Medical Malpractice Lawsuit in Virginia

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.

Are There Exceptions to the Medical Malpractice Lawsuit Deadline in Virginia?

Yes. Section 8.01-243 sets out a number of special exceptions to the standard two-year deadline, including for medical malpractice cases where:

• a foreign object (like a sponge or instrument after surgery) was accidentally left in a patient, and
• where "fraud, concealment or intentional misrepresentation" (on the part of the health care provider who made the mistake, for example) prevented the patient from discovering the injury within the two-year period.

In these two 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:

• didn't discover right away that the medical negligence occurred, and
• that you couldn't have reasonably discovered the malpractice until you actually did.

Special Rules for Failure to Diagnose Certain Cancers in Virginia

Virginia's statute of limitations also spells out a rule for medical malpractice claims involving "negligent failure to diagnose a malignant tumor" or certain forms of cancer. In these cases, the lawsuit filing deadline is extended for a period of one year from the date on which a correct diagnosis is "communicated to the patient by a health care provider."

Virginia's "Statute of Repose" for Medical Malpractice Lawsuits

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 malpractice occurred.

The only exception is for cases where the patient was under a legal disability at the time the underlying malpractice occurred (the patient was under 18 or legally incapacitated, for example), and that disability continues beyond the 10-year timeframe.

What If I Miss the Statute of Limitations Deadline in Virginia?

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 crucial that you pay attention to the filing deadline. Learn more about the statute of limitations in a medical malpractice case.

If you're wondering whether you've got a valid medical malpractice case against a Virginia health care provider, it might make sense to discuss your situation with a medical malpractice lawyer.