What is Virginia’s Statue of Limitations for Failure to Diagnose Cancer? | Shapiro, Washburn & Sharp

Early diagnosis in cancer is critical to minimize organ damage and save the patient’s life. Research has shown that timely detection of different types of cancers, including breast cancer, skin cancer, and testicular cancer substantially improved the survival rates.

Nine out of 10 patients whose cancer diagnosis occurs at stage one survive for 10 years or more, while only one out of 10 patients survives for 10 years when cancer is detected at stage four.

Delayed cancer diagnosis usually means that the patient has missed the chance of getting cured. A doctor’s failure to provide accurate or timely diagnosis can result in serious harm to the patient’s life, and sometimes, become the cause of their death.

The aim of medical malpractice law is to help patients who have suffered because of the doctor’s negligence recover compensation. A competent medical malpractice lawyer can ensure you are fully compensated by the negligent parties for your damages arising from their failure to diagnose cancer.

Statute of Limitations in Virginia for Cancer Diagnosis Related Claims

The standard statute of limitations in Virginia for medical malpractice claims is similar to the rule that generally applies to various types of personal injury lawsuits. This rule, which is described in the Virginia Code § 8.01-243, specifies that a malpractice case must be filed within 2 years after the “cause of action accrues”. In other words, you can file a lawsuit within two years from the day when the medical professional committed the alleged act of malpractice.

Under Section (c)(3) of Virginia Code § 8.01-243, the law goes on to provide an extension of one year beyond the normal limitation period (of two years) for claims related to failure of diagnosis a cancer, malignant tumor, and an spinal, interspinal, or intracranial schwannoma. This means that you get one year additional in case of a failed cancer diagnosis to file your medical malpractice lawsuit from the date on which the actual correct diagnosis was communicated to you by a medical professional.

Statute of Repose

In Virginia medical malpractice cases, it is also important to be aware of an overall deadline for filing a claim. The rule says that any medical malpractice lawsuit cannot be filed beyond 10 years from the date when the cause of action accrued. This rule is called the “statute of repose,” which means that if more than 10 years have passed after the occurrence of medical malpractice, you cannot file a lawsuit.

However, one exception exists even against the statue of repose. If at the time of the act of medical malpractice, if you were under a legal disability (for example you were legally incapacitated as your age was below 18), and the disability has continued beyond the limit period of 10 years, this rule will not apply and you can still file your medical malpractice claim. 

File Your Medical Malpractice Claim Soonest Possible

It is prudent to speak to a knowledgeable medical malpractice attorney in Virginia as soon as possible after the incident. You should remember that if the statute of limitations deadline is over in Virginia, and you still attempt to file your lawsuit, the other party (the medical professional) whom you want to hold liable will request the court to dismiss your case because it is time-barred.

It is a near certainty that the court will grant their request in this situation, and you will not be able to make any claim. Therefore, have a reliable medical malpractice lawyer by your side who understands the statute of limitation rules applicable in delayed cancer diagnosis cases, and who will take swift and appropriate legal action to protect your rights.

The Continuing Treatment Rule

In medical malpractice cases, the continuing treatment rule is applicable in Virginia. This rule says that when medical malpractice occurs during a continuous and largely uninterrupted process of medical examination and treatment, the statute of limitations period will be counted from the date when that incorrect course of examination (diagnosis) and treatment for that particular illness or injury terminates.

Under the law, the “termination of treatment” does not mean the termination of the doctor-patient relationship, but the termination of the treatment for the illness or injury that serves as the basis for medical malpractice action. 

Speak to a Skilled Medical Malpractice Attorney Today

The consequences of a delayed cancer diagnosis or misdiagnosis can be devastating for you and your family. In Virginia, the statute of limitations rules related to failure of cancer diagnosis malpractice action are complex. It is important to determine when your time period commences and when it will end.

Our medical malpractice lawyers at Shapiro, Washburn & Sharp will formulate an appropriate legal strategy based on your goals and the time period available to you. We will do everything within the ambit of law to ensure that you can achieve your rightful compensation. To schedule a consultation, call us at (833) 997-1774 today.