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In Virginia, Can You Sue For Medical Malpractice Surgical Mistakes Without Having a Surgeon Review The Case?

Surgical errors can result in serious harm to the patient. If the injury occurred because of the negligence of the operating surgeon, you may have a case for medical malpractice. The legal process for filing your medical malpractice claim in Virginia in these cases must be carefully followed. It is best to have an experienced lawyer by your side who understands the process involved in surgical error medical malpractice lawsuits.

A Surgeon’s Case Review is Mandatory

The Virginia Code § 8.01-20.1, entitled "Certification of Expert Witness Opinion at Time of Service of Process" addresses the issue of a case review by a surgeon. Under the law, it is almost always a requirement in surgical error medical malpractice cases that a surgeon has reviewed the case. Upon review, the surgeon must sign a document called a “Certificate of Merit”. Only after that a surgical error medical malpractice lawsuit in Virginia will be activated. 

This Certificate of Merit from the surgeon is not required before filing the lawsuit. However, before the lawsuit papers can be served on the surgeon (or the surgical group) that committed the alleged medical malpractice, the plaintiff’s attorney should verify, or be in a position to verify, that they had a surgeon (or similar medical professional) review the alleged medical malpractice before activating the lawsuit, and serving it on the defendants.

The lawsuit gets activated through this service of process. The certificate of merit must be obtained at that point. In cases where there is an urgency to file the lawsuit, your lawyer may consider filing the medical malpractice lawsuit on your behalf without obtaining a certificate of merit. However, before they serve the lawsuit papers on any defendants, they must obtain a valid certificate of merit.

What You Need to Prove in a Medical Malpractice Claim

In Virginia, you should be able to show the following things in order to prove that the medical malpractice actually occurred:

Existence of a Patient-Doctor Relationship

You will have to prove that the doctor or surgeon against whom you have filed a claim of medical malpractice had been hired by you, and the doctor had agreed to be hired. This will establish a patient-doctor relationship.

For instance, if you merely overheard a doctor’s medical advice in a social gathering, and you suffered an injury after following the advice, you will not be able to sue the doctor for medical malpractice. If a doctor or a surgeon has not directly treated you, the patient-doctor relationship becomes questionable under the law.

Negligence of the Doctor or Surgeon

Merely being unhappy or dissatisfied with the final outcome of your treatment or surgery does not make you eligible to sue for medical malpractice. You will have to show that the doctor committed an act of negligence with regard to your diagnosis or treatment.

The law in Virginia requires you to show that the defendant doctor or surgeon caused you harm in a manner that another reasonably competent doctor would not have caused under similar circumstances. It is not necessary for a medical professional to provide the “best possible care.” However, they must be reasonably skilled and careful.

Your Injury Occurred due to the Doctor’s Negligence

In many cases, the patient is already ill or injured. Therefore, it is important to establish whether the doctor’s negligence actually led to more harm to the patient. For instance, if a patient died of colon cancer, and during the course of treatment, the doctor acted negligently.

It may be challenging to prove that the death occurred because of the doctor’s negligence, and not because of the cancer. In medical malpractice cases, you will have to prove that the doctor’s negligence is “more likely than not” the cause of your injury.

Your Injury Resulted in Specific Damages to You

Even when it is established that the doctor or surgeon committed medical negligence that caused you injury, you cannot sue for compensation unless you can prove specific damages suffered by you. Here are some of the examples of specific damages you can sue for:

  • Additional medical costs of treatment
  • Loss of income due to the injury
  • Pain and suffering

In most cases, a medical malpractice claim may fall in one of the following three categories: (a) Misdiagnosis, delayed diagnosis, or failure to diagnose; (b) Inappropriate treatment or surgery; and (c) Failure to warn the patient in advance about the risks involved in the treatment (failure to obtain informed consent of the patient).

Contact a Dedicated Medical Malpractice Lawyer in Virginia

Shapiro, Appleton & Washburn is one of the respected law firms in Virginia with thorough knowledge, experience, and resources to handle medical malpractice claims. If you or someone you love has suffered injury due to a surgical error or another type of medical negligence, we will help you obtain your rightful compensation. For a free consultation with one of our experienced attorneys, call us at today at 800-752-0042. 

References:

https://www.hsinjurylaw.com/case_results/leg-amputation-from-surgical-error.cfm

https://www.hsinjurylaw.com/blog/grounds-medical-malpractice-lawsuit-surgical-error.cfm

https://www.hsinjurylaw.com/case_results/meningitis-misdiagnosis-malpractice-settlement.cfm

Richard N. Shapiro
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Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia
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