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In Virginia, What is the Statute of Limitations For a Medical Malpractice Claim For a Minor?

The statute of limitations in Virginia has relatively complicated rules when it comes to medical malpractice cases for minors. According to Virginia Code § 8.01-243.1, entitled "Actions for Medical Malpractice; Minors" an injured child who is below the age of 8 can file a medical malpractice claim up to his or her 10th birthday (until they turn 10 years old). For all minors who are above the age of 8, the time limit of two years from the date of occurrence of medical malpractice will apply.

In other words, the Virginia statute of limitations only provides an extension of time limit for very young minors (under the age of 8). All other minors will only have the standard period of two years to file their claim after their medical injury was discovered (or should reasonably have been discovered).  

Different Rule than Other Personal Injury Cases

In regular personal injury cases in Virginia, minors are allowed to wait all the way until they turn 18 years of age because until that age they are considered legally incapable or disabled. After they turn 18, their time limit of two years will begin. In other words, in regular personal injury cases, a minor can file a lawsuit until their 20th birthday, no matter when their injury occurred.

But in a case of medical malpractice, this historic right of a minor in Virginia to wait until the age of 18 before the statute of limitations can commence is eliminated. The principle behind the special extension given to minors in regular personal injury cases is that the child should not suffer a loss just because an adult failed to pursue a claim on the child’s behalf.

However, in medical malpractice cases, minors who are 8 years or older do not get the same privilege under the law. In that sense, negligent medical professionals have a lower accountability compared to all other people who may cause a personal injury to a minor. A minor (8 years or older) has no special protection from the statute of limitations against a doctor’s negligence in Virginia. 

Therefore, if an 8-year old child is injured by a car driver, he or she gets 12 years to file a personal injury lawsuit. But if the same 8-year old minor gets injured by a negligent physician, he or she only gets two years file a medical malpractice claim, just like a grown adult. The child’s claim will be dismissed if no adult files a claim on their behalf within two years.

Under this Virginia law, an injured minor victim’s interests are effectively compromised at the cost of protecting a negligent medical professional.

Exception to the Rule

If a minor has been injured due to medical malpractice, their parents can pursue legal action to get reimbursed for the medical costs within 5 years from the date of injury. This exception of 5 years is only applicable in cases where the injured minor’s parents are seeking reimbursement of medical costs only. In a regular medical malpractice case, where the parents are seeking both actual medical costs and damages, the time limit of two years will apply as discussed in the previous section.

Review Panel to Assess the Claim

Review panels have been established under the Virginia Medical Malpractice Act to evaluate the merits of an alleged claim of medical malpractice. Either party can request for the appointment of a review panel. The panelists are chosen by the Virginia Supreme Court. Each panel includes a judge, two doctors and two attorneys. The panel is chaired by the judge, but he or she will not get a vote on the case.

The panel will give their opinion after going through the evidence regarding whether the doctor breached the medical standard of care, and whether the patient’s injury was caused due to that breach.  The review panel’s findings are binding, but may serve as evidence if a lawsuit is filed after the review. In other words, the doctors and the attorneys who were a part of the panel could be called upon to testify in court.

Choose a Trusted Virginia Medical Malpractice Attorney

One of the most heartbreaking events for parents occurs when their minor child gets injured because of the negligence of a doctor. The child’s pain and suffering can be severe, and at their tender age they will find it hard to cope with the injury. As a parent in this situation, you should be focusing on your child’s recovery rather than struggle with multiple legal obligations and processes on your own.

When you have the dependable and competent Virginia medical malpractice lawyers from Shapiro, Appleton & Washburn on your side, you can be sure that we will do everything to protect your child’s rights and pursue a claim for maximum damages against the negligent parties. To schedule a free consultation, call us at today at 800-752-0042.

References:

https://www.hsinjurylaw.com/practice_areas/virginia-beach-malpractice-lawyers-medical-malpractice-attorneys-in-norfolk-va.cfm

https://www.hsinjurylaw.com/case_results/disabling-should-injury-at-birth-2-3-million-award.cfm

https://www.hsinjurylaw.com/reports/surgeries-gone-wrong-the-top-5-surgical-errors-and-how-not-to-become-a-victim.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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