What Is the Statute of Limitations for a Medical Malpractice Case for Minors in Virginia?

Personal injury and medical malpractice are complex areas of law that usually require the assistance of an attorney specializing in the area of law to help navigate the legal system. However, when the victim in the case is a minor child, the process can be even more confusing, especially regarding how long the child and/or parents have to pursue this legal action. This timeframe allowed before a suit is filed is referred to as the “statute of limitations.” If your child has suffered an injury due to the negligence of another party, do not delay contacting a Virginia Beach personal injury lawyer for legal assistance as the time frames are different for medical malpractice claims and all other types of personal injuries.

 Personal Injury Claims for Minors

 The statute of limitations for an adult to file a personal injury claim is two years from the date of injury, but Virginia law has a different timeline for minors. Instead of two years from the date of injury, the statute of limitations is extended to two years after the minor’s 18th birthday.  This usually means you have up to two years after the minor turns 18, even if the incident occurred when the minor was a toddler.  Nonetheless, we advise you to talk to one of our attorneys within the first six months after the incident so we can assist with gathering up all necessary evidence that may be required to win the case.

The only exception to this law is if the minor has been “emancipated” from their parents. If the minor was emancipated when the injury occurred, then the statute of limitations is two years from the date of injury. If the minor is emancipated after the injury, then the statute of limitations for filing a lawsuit is two years from the date of emancipation.

Although the clock for filing does not start ticking until the minor child reaches 18, it may be in the child’s best interest to consult with a personal injury lawyer immediately instead of waiting. Under Virginia law, a guardian or “next friend” can represent the child’s interests in legal matters, acting as a legal representative for the minor, responsible for making decisions on their behalf. This guardian can be a parent, relative, or court-appointed representative.

Some of the reasons why it may be better to file a lawsuit now instead of waiting until the child turns 18 include the inability of the child to remember the incident, treatment, or the pain and suffering they experienced in the aftermath of the incident, the difficulty to obtain older medical records, witness statements, and other evidence needed to prove the case.

 Medical Malpractice Lawsuits for Minors

 Our personal injury law firm has written extensively about the unfairness to injured patients under Virginia medical malpractice laws, including a recent post about the cap on the damages that victims can be awarded. This unfairness carries over to how the state treats minors who are victims of medical malpractice. The medical profession pressured law makers to limit the timeframe under which medical negligence claims could be filed by minors and this resulted in a different statute of limitations for minors.

Unlike the statute of limitations in personal injury lawsuits, if a doctor or other medical professional injures a minor, the law only gives the minor two years to file a medical malpractice lawsuit – the same amount of time as an adult – even though that minor child is too young to file the lawsuit on their own.

The Virginia state does make small concessions and exceptions for very young children. The law states that under no circumstances will the statute of limitations lapse before the child turns 10 years old. Therefore, in the case of a child under 8 years old, the clock does not start ticking until their eighth birthday, and then the child only has two years from that day to pursue legal action.  So there is a longer time frame when medical negligence affects young minors, and yes, it’s a confusing set of limitation periods.

The bottom line when it comes to medical malpractice lawsuits for minors is that – since they are not allowed to pursue legal action on their own – if no adult or parent files a claim on the child’s behalf, the child’s claim can be barred when they turn 18 if the suit was not filed in a timely manner as outlined above.

Call a Virginia Beach Personal Injury Lawyer for a Free Case Evaluation

One of the most frightening times in a parent’s life is when their child is hurt and suffering. When that injury is the result of another party’s negligence, it is crucial for parents to consult with an experienced Virginia medical malpractice attorney specializing in cases involving minors.

At Shapiro, Washburn & Sharp, our attorneys have decades of experience successfully advocating for injured minors, like the $2.3 million jury verdict we obtained for our client, a young child who suffered shoulder dystocia during delivery and leaving the child with a life-long disability. If your child has been injured, contact our office today to find out what legal recourse you may have.