Medical Malpractice Lawyer Virginia Beach
Imagine you went through surgery two years ago, but you are still under your doctor’s care. Maybe there were complications from the surgery, or you needed ongoing treatment because it led to a chronic condition.
Meanwhile, you are worried because you’ve recently come to suspect that something went wrong during that initial surgery. Your doctor never said anything, but maybe you got a second opinion, or something has led you to believe that a mistake was made and that you are a victim of medical malpractice.
Still, you need this ongoing treatment. You may wonder: What happens if I want to file a medical malpractice claim, but it’s been more than two years since the issue started? Am I too late?
At Shapiro, Washburn, & Sharp, we help victims in this sort of situation. You may not have heard about it, but Virginia law provides an exception to the standard medical malpractice statute of limitations in certain cases of ongoing treatment. Below, we walk you through the continuous treatment rule, how it works in Virginia, and why it’s important to talk to an experienced medical malpractice attorney as soon as possible.
Call our Virginia Beach medical malpractice lawyers at 833-997-1774 for a free consultation.
What Is Virginia’s Statute of Limitations When It Comes to Medical Malpractice?
In most medical malpractice cases in Virginia, patients are given two years from the date of the injury to file an injury claim. This is called the statute of limitations. If you don’t file within that time, you could lose your right to pursue compensation, no matter how severe your injury or how obvious the medical mistake is.
However, there is an exception to the rule when it comes to continuous treatment. If the same doctor has continued to treat you for that injury or condition for months—or even years—after the malpractice occurred, then the continuous treatment rule may come into play.
What Is the Continuous Treatment Rule?
The continuous treatment rule is a legal exception to the standard two-year statute of limitations in Virginia medical malpractice cases.
It applies when these two conditions are met:
- A healthcare provider commits an act of malpractice, and
- They continue to treat the patient for the same injury, illness, or condition that resulted from the malpractice.
When this rule applies, the two-year clock doesn’t start ticking until treatment ends. If your provider keeps treating you for 2.5 years after the original error, the statute of limitations may not begin until that ongoing care stops.
This exception protects patients who need more time to recover after the initial error. Rushing into legal action when you’re still in and out of the hospital or going through ongoing therapy can feel near impossible, so this rule allows some extra time for that.
Why the Continuous Rule Can Be Challenging to Prove
Proving that a patient needs that extra time for treatment can be difficult at times. The key is showing that the treatment was genuinely ongoing for the same issue caused by the malpractice.
That means:
- There must be no significant gaps in treatment.
- The treatment must be clearly related to the original malpractice event.
- You must not have terminated the doctor-patient relationship by switching providers or failing to follow up.
The court will look closely at things like intent and continuity of the care provided. If there’s any doubt about whether the treatment really continued or whether it was for the same issue (or some other issue), the rule may not apply.
Example: A Botched Surgery Followed by Continued Treatment
Imagine you had spinal surgery about 2.5 years ago, but the surgeon made a serious error during the procedure. The surgeon didn’t say anything, and you didn’t know at the time that it was malpractice—you just knew you didn’t heal as fast as you thought you would.
The surgeon continued to see you for follow-ups, physical therapy referrals, pain management, and additional minor procedures. These were all related to your original spinal surgery. The doctor never discharged you, and you remained under their care for that entire time.
In this case, your medical malpractice attorneys could prove that the continuous treatment rule applies, meaning that the statute of limitations would not begin until your treatment with that doctor ended. That could give you more than two years to file your claim from the original surgery date.
Recent Virginia Court Ruling in Favor of the Continuous Treatment Rule
It is interesting to note that in a recent medical malpractice case (Jauregui v. Cothran, M.D., Record No. 1133-23-4.), a Virginia Appellate Court ruled that even with a 10-month gap in treatment, the continual treatment rule applied. The plaintiff asserted a medical malpractice claim arguing that her doctor failed to properly diagnose a lump in her breast for months, resulting in a metastasized cancer that was significantly more difficult to treat.
The doctor argued that there was no continuing treatment between when the patient presented her symptoms and when she was eventually diagnosed with breast cancer. The Court of Appeals of Virginia stated that the patient’s actions seeking follow-up treatment could be directly attributed to Dr. Cothran’s instructions, and thus the continuous treatment rule applied.
Why You Should Speak to Your Attorney Immediately
Though the continuous treatment rule can give patients more time in certain situations, acting quickly is always best. When you suspect a medical error may have been made, contact your medical malpractice attorney for a free consultation. We can help guide you on your next steps.
The longer you wait, the harder it can be to gather evidence, obtain medical records, secure witness statements, and build a strong case in your favor.
Remember, too, that the rule doesn’t apply to every case. If you wait too long to file a claim and the rule doesn’t apply, you may lose your right to seek compensation. The safest move is always to talk to an attorney as soon as you start thinking something went wrong.
Still, if more than two years have passed, don’t assume you’re out of options. If you’re still under treatment for the same condition or your doctor has never formally ended your care, consult your lawyer to see if the continuous treatment rule may apply.
How Can a Medical Malpractice Attorney Help?
Contact us at Shapiro, Washburn, & Sharp. Our medical malpractice attorneys have decades of experience helping injured patients across Virginia. We’ll treat your situation with the care and urgency it deserves.
If you think medical malpractice may have occurred and you’re unsure about your timeline, don’t wait. We’ll help you find answers—as we did for our client who underwent what was supposed to be a routine procedure but died afterward because of a medical mistake. Her adult children hired us, and we helped obtain a $1.3 million settlement.
We have several offices where you can find us—in Virginia Beach, Norfolk, Suffolk, Hampton, and Portsmouth.