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.

Section 8.01-243 sets out special exceptions to this two-year deadline for medical malpractice 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 actually did.

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."

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.

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.