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In many respects, Virginia has been more conservative about modifying the common law than its sister states. To the extent modifications have been approved, many restrict rather than expand the rights of the victims of medical negligence. For example, Virginia has adopted three major modifications of medical malpractice law: a damage cap, screening of proposed lawsuits by a medical review panel, and a state fund to compensate victims of birth-related neurological injuries. Much of the legislation specific to medical malpractice can be found in the Medical Malpractice Act, Va. Code Ann. 8.01-581.1 to 8.01-581.20.

Statutes of Limitations

All medical malpractice actions for injury (as opposed to death) must be brought within two years from the date the cause of action accrued. Va. Code Ann. 8.01-243(A). In 8.01-230, a cause of action accrues at the time of injury: the cause of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person... and not when the resulting damage is discovered.

This two-year limitation has long been applicable, and strictly enforced, in Virginia. Virginia is one of the minority states that use the date-of-the-act rule, which means that the plaintiff must file suit within two years of the date of the injury regardless of how obscure or undiscoverable the injury might have been. Exceptions to the two-year rule are (i) cases involving minors or mentally incompetent people who are in law regarded as unable to know their legal rights and (ii) cases where the injury was fraudulently concealed from the person.

The Virginia Supreme Court rejected the judicial adoption of a discovery rule, Nunnally v. Artis, 254 Va. 247, 492 S.E.2d 126, (1997), but held that continuing treatment for the same conditions tolls the statute of limitations until treatment ends. Grubbs v. Rawls, 235 Va. 607, 369 S.E.2d 683 (1988). The court defined continuous treatment as not mere continuity of a general physician-patient relationship; we mean diagnosis and treatment for the same relating illness or injuries, continuing after the alleged act of malpractice. The court acknowledged, however, the rule would not apply to a single, isolated act of malpractice. Farley v. Goode, 219 Va. 969, 252 S.E.2d 594 (1979). In other words, when an act of malpractice occurred and that physician continued to see the patient over a course of years for an unrelated condition, the rule would not apply.

In foreign object cases (surgical sponges, needles, etc.) and cases of fraud or concealment (i.e., alteration of medical records) the statute is extended to one year from the date the object or injury is discovered or reasonably should have been discovered. However, this extension is subject to a ten-year limit from the time the cause of action accrued. Va. Code Ann. 8.01-243(C).

In cases in which the health care providers negligence caused the patients death (Wrongful Death Claims), suit must be filed within two years of death. Va. Code Ann. 8.01-244(B).

If a person entitled to bring a personal action dies with no such action pending before the expiration of [the two-year] limitation period... then an action may be commenced by the decedents personal representative before the expiration of the limitation period... or within one year after his qualification as personal representative, whichever occurs later.

However, 8.01-229(B)(6) states that:

[i]f there is an interval of more than two years between the death of any person in whose favor . . . a cause of action has accrued or shall subsequently accrue and the qualification of such persons personal representative, such personal representative shall, for the purposes of [the statute], be deemed to have qualified on the last day of such two-year period.

A parent's action for medical expenses caused by injury to a minor must be brought within five years. Va. Code Ann. 8.01-243(B). A minor's medical malpractice action for injury or death must be commenced within two years from the date of the last act of negligence, unless the child is less than eight years of age, in which case the action must be brought by the child's tenth birthday. Va. Code Ann. 8.01-243.1. The Virginia Supreme Court has upheld the constitutionality of this statute. Willis v. Mullett, 263 Va. 653, 561 S.E.2d 705 (2002). Incapacity (typically a substantial mental or physical handicap) also tolls the running of the statute of limitations during the period of incapacity. Va. Code Ann. 8.01-229(A).

Contributory or Comparative Negligence

Virginia recognizes the doctrine of contributory negligence in medical malpractice cases. A plaintiff's contributory negligence may bar her recovery entirely, but the patients negligence must be concurrent with the defendant's negligence. Sawyer v. Comerci, 264 Va. 68, 563 S.E.2d 748 (2002); Ponirakis v. Choi, 262 Va. 119, 546 S.E.2d 707 (2001).

Joint and Several Liability

Virginia imposes joint and several liability on joint tortfeasors. Va. Code Ann. 8.01-443. Thus, any joint tortfeasor against whom judgment is entered is liable to the plaintiff for the entire judgment, regardless of the tortfeasor's degree or percentage of fault. For example, in a hospital setting, if the attending doctor and nurse are both negligent, then each one can be held responsible for the patients entire injury even if part of that injury was caused by the others negligence.

Vicarious Liability

Under the doctrine of respondeat superior, hospitals in Virginia are vicariously liable for the negligence of their employees but not that of independent contractors. McDonald v. Hampton Training School for Nurses, 254 Va. 79, 486 S.E.2d 299 (1997). Whether a physician should be considered an employee is a question of fact not to be determined by whether the hospital calls him one, but by the factors of selection and engagement, payment of compensation, power of dismissal, and (most importantly) power to control the physician's work. A physician's exercise of professional judgment in the performance of professional duties is a factor, but not the only factor, in deciding whether the hospital has the power to control his work. There is also authority for holding a hospital liable for the act of a physician on the theory of negligent credentialing. Stottlemyer v. Ghramm, 2001 Va. Cir. LEXIS 501 (Va. Cir. Ct. July 13, 2001)(affirmed at 2004 Va. LEXIS 99 (2004). In other wor!

ds, a hospital can be held legally responsible for granting hospital admission and treatment privileges to an unqualified physician.

Expert Testimony

Except for rare cases within the common knowledge and experience of lay jurors, expert testimony is necessary to establish the standard of care, a deviation from the standard, and the proximate cause of injury. Perdieu v. Blackstone Family Practice Center, Inc., 264 Va. 408, 568 S.E.2d 703 (2002). To testify as an expert on the standard of care a witness must demonstrate expert knowledge of the standards of the defendant's specialty and have had an active clinical practice in either the defendant's specialty, or a related field of medicine, within one year of the date of the alleged act or omission. Va. Code Ann. 8.01-581.20.

Damage Caps

Virginia imposes a cap (limit) on damages of all kinds in medical malpractice cases. For claims arising out of acts or omissions prior to August 1, 1999, the damage cap is $1 million. For acts or omissions on or after August 1, 1999, and before July 1, 2000, the cap is $1.5 million. The cap is increasing by $50,000 every July 1. Two final increases of $75,000 beginning in 2007 will bring the damage cap to $2 million for acts or omissions on or after July 1, 2008. Va. Code Ann. 8.01-581.15. The Virginia Supreme Court has twice considered this legislation and held that it does not violate the U.S. or Virginia constitutions. Pulliam v. Coastal Emergency Services, Inc., 257 Va. 1, 509 S.E.2d 307 (1999); Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989).

A settlement with one defendant reduces the maximum liability of the others, because the cap limits the total amount recoverable for an injury to a patient, regardless of the number of theories or defendants. Fairfax Hospital System v. Nevitt, 249 Va. 591, 457 S.E.2d 10 (1995). This includes punitive damages. Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1990). In cases arising prior to March 28, 1994, when the definition of "health care provider" was broadened in Va. Code Ann. 8.01-581.1, a physician's professional corporation may be subject to uncapped liability. Schwartz v. Brownlee, 253 Va. 159, 482 S.E.2d 827 (1997).

Virginia limits punitive damages to $350,000. Va. Code Ann. 8.01-38.1. This cap has also been determined to be constitutional by the Fourth Circuit Court of Appeals. Wackenhut Applied Technologies Center, Inc. v. Sygnetron Protection Systems, Inc., 979 F.2d 980 (4th Cir. 1992).

Statutory Cap on Attorneys' Fees

There is no Virginia statute setting a limit on attorneys' fees in medical malpractice actions.

Periodic Payments

Periodic payments or structured settlements are allowed, but not required in Virginia. A settlement agreement on behalf of a disabled person, including the situation where the plaintiff is a minor (under the age of 18) involving periodic payments must be reviewed by the court and secured by a bond or insurance. Va. Code Ann. 8.01-424.

Collateral Source Rule

Virginia recognizes the collateral source rule, under which the plaintiffs receipt of collateral payments (health insurance, paid leave of absence from work, etc.) does not reduce his recovery. This protection is statutory for lost income (Va. Code Ann. 8.01-35) but the courts follow the rule for all damages in tort cases. Schickling v. Aspinall, 235 Va. 472, 369 S.E.2d 172 (1988).

Pre-Judgment Interest

In Advanced Marine Enterprises v. PRC, Inc., 256 Va. 106, 501 S.E.2d 148 (1998), which was not a malpractice case, the Virginia Supreme Court reversed an award of pre-judgment interest on the unliquidated part of the damages, stating, "Generally, prejudgment interest is not allowed on unliquidated damages in dispute between the parties." This should apply to most medical malpractice claims. However, the decision also notes that Va. Code Ann. 8.01-382 leaves the date from which interest should run to the sound discretion of the trial court. In Pulliam v. Coastal Emergency Services, Inc., 257 Va. 1, 509 S.E.2d 307 (1999), the court reversed an award of pre-judgment interest because it exceeded the damage cap, but did not comment on whether such interest should have been awarded at all. In cases where pre-judgment interest is proper, the rate is six percent. Va. Code Ann. 6.1-330.54.

Birth Injury Claims

Virginia does not have a general patient compensation fund covering all medical malpractice claims. However, the Birth-Related Neurological Injury Compensation Act (Va. Code Ann. 38.2-5000 to 38.2-5021), covers infants who suffer permanent, disabling damage to the brain or spine caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation. This no-fault program is the exclusive remedy for such infants and their parents against participating physicians and hospitals, who must pay an annual assessment. Va. Code Ann. 38.2-5001 and 38.2-5002. A claim filed under this statute proceeds in an adversarial fashion and the Virginia Attorney General represents the Fund in opposing the infants claim.

If the claim is determined to be compensable, the Fund provides for lifetime medical expenses as well as one-half of the Virginia average weekly wage after the child reaches age eighteen. Va. Code Ann. 38.2-5009. Many hospitals and physicians choose not to participate. In cases arising prior to April 1, 2000, a participating physician's professional corporation may be sued even in cases otherwise covered exclusively by the fund. Jan Paul Fruiterman, M.D. & Associates v. Waziri, 259 Va. 540, 525 S.E.2d 552 (2000). Although the legislature promptly closed this loophole by expanding the definition of "participating physician" in Va. Code Ann. 38.2-5001, the Virginia Supreme Court declined to apply the amendment retroactively. Berner v. Mills, 265 Va. 408, 579 S.E.2d 159 (2003).

Immunities

Virginia has waived sovereign immunity in tort cases, subject to significant limitations. No claimant may recover more than $100,000 or the limits of applicable insurance, whichever is greater. In medical negligence cases, the immunity most often comes into consideration when there is a claim against the Medical College of Virginia or the University of Virginia Health System. For example, sovereign immunity has been applied to protect hospital administrators as well as surgical interns and residents at the University of Virginia Hospital. Lawhorne v. Harlan, 214 Va. 405, 200 S.E.2d 569 (1973), overruled on other grounds, First Virginia Bank v. Baker, 225 Va. 72, 301 S.E.2d 8 (1983); Hall v. Roberts, 548 F. Supp. 498 (W.D. Va. 1982). This immunity may extend to other physicians employed by the state, depending on the degree of control exercised over them, Lohr v. Larsen, 246 Va. 81, 431 S.E.2d 642, (1993), but never to independent contractors. Atkinson v. Sachno, 261 Va!

. 278, 541 S.E.2d 902 (2001). Virginia has not waived sovereign immunity for local units of government. Municipalities are immune for negligence in the performance of governmental functions, including the operation of a hospital. Edwards v. Portsmouth, 237 Va. 167, 375 S.E.2d 747 (1989) (dictum).

A charitable entity is not liable to its beneficiaries for the negligent acts of its agents if due care has been exercised in their selection and retention. Mann v. Sentara Hospitals, Inc., 59 Va. Cir. 433, 2002 Va. Cir. LEXIS 363 (2002) (discussing application of the doctrine to a medical faculty foundation). However, charitable immunity has been withdrawn from hospitals, except where a hospital renders exclusively charitable medical services, or where the patient signed an express agreement providing that all medical services would be supplied on a charitable basis. Va. Code Ann. 8.01-38.

Medical Review Panels

The Virginia Medical Malpractice Act provides for a system of medical malpractice review panels to assess the validity of medical malpractice claims. At the request of either party, the Supreme Court of Virginia appoints a panel to review the claim, consisting of two doctors, two lawyers, and a non-voting judge as chairman. Va. Code Ann. 8.01-581.2 and 8.01-581.3. The panel determines whether the evidence supports the conclusion that the health care provider failed to comply with the relevant standard of care and whether that failure proximately caused the injury. Va. Code Ann. 8.01-581.7. The findings of the panel are non-binding and the claimant has the option of filing a lawsuit after the panel has made its ruling. However, any opinion of the medical review panel is admissible as evidence in a subsequent action. Both parties have the right to call panel members, except the chairman, as witnesses. Va. Code Ann. 8.01-581.8.

Arbitration

Arbitration is a process by which potential litigants can resolve their dispute without resorting to the civil court system. In most arbitration cases, the parties agree to arbitrate their dispute after the event occurs and the claim arises. However, parties may also agree in advance of treatment to binding arbitration of any claim, so long as the patient has the option to withdraw from the agreement within 60 days after the termination of treatment. Va. Code Ann. 8.01-581.12.

Dan Frith is the founding partner of Frith Law Firm, P.C., a firm focusing on medical malpractice, nursing home abuse, and personal injury. You can view his bio at http://www.frithlawfirm.com or email him at dfrith@frithlawfirm.com.Little River Pet Shop
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