You are driving on Interstate 264 (I-264) from Norfolk on your way to Chesapeake to visit family when you are involved in a serious car accident. The wreck was bad enough to leave you suffering from extensive bodily injuries. You visit a doctor and their treatment did not help whatsoever. In fact, you feel even worse after the treatment. You or your family members are convinced that the doctor made a medical mistake or committed medical malpractice that made your injuries worse.  Sometimes potential clients call us and ask us whether they can file a claim against the person that smashed into their car, but also a medical malpractice claim against the doctor who made the injuries worse.

The answers is – possibly.

Yes, there is a theoretical right to bring a medical malpractice case against a doctor or a surgeon who negligently causes harm but if you have a viable case against someone who causes injuries arising out of a car or truck accident (you can substitute any other kind of incident here, could be a faulty product causing injuries, any other type of negligence action) you normally wouldn’t want to bring a separate claim against a doctor for some kind of medical error.  The reason has to do with Virginia law.  (This article touches on Virginia law but you can presume most states would follow a similar legal theory as outlined below.) 

A series of cases in Virginia have determined that, when injuries are made worse due to a doctor attempting to treat or cure or help with the original injuries, the party who causes the first accident, such as a car wreck, or any other type of negligence action, is responsible for all the consequences of the injury made worse due to a doctor error or mistake, so long as the doctor was selected or was of a normal type of physician for the type of injuries being treated.  The theory of law is that it is foreseeable that something can go wrong during medical care when you are rendered injured due to the negligence of some person or a party.  Meaning that if your injuries are made worse due to the medical care, the original negligent party is responsible for all the consequences.

Related Content:

The Virginia Supreme Court decided a couple of cases going back more than half a century ago on these issues. For example, the Court held that where one receives personal injury due to negligence of another and exercises due care in selection of physician, and injury is aggravated by malpractice of physician, person causing original injury is liable for resulting damage. See Fauver v. Bell, 65 S.E.2d 575 (Va. 1951). 

Additionally, if an injured person uses ordinary care in choosing doctor, then aggravation caused by negligence of doctor flows from original injury. See Corbett v. Clarke, 46 S.E.2d 327 (Va. 1948). 

As a matter of fact, in Virginia, the case law is so clear, that there is a model jury instruction that attorneys submit when there are jury trials in the state and it reads as follows from the VMJI‐Civil 9.040:

If you believe by the greater weight of the evidence: 

(1)     that the defendant is liable for the plaintiff’s injuries; 

(2)     that the plaintiff used reasonable care in selecting a physician to treat his       

        injuries; and then the plaintiff is entitled to damages from the defendant for the increase in his injuries caused by the physician.

I recently took on a case of a young man who had serious injuries when he was working on a stunt during a production of a play.  There was a question as to whether his injuries were made worse due to misdiagnosis or improper treatment at the hospital in the first several days after the traumatic incident occurred.  I explained to this new client that there are exceptions to this rule but you normally wouldn’t want to pursue a medical malpractice case because the injuries were made worse later.  Instead, you would hope to have good evidence to prove your case against the original party that caused injuries due to negligence because that party is responsible for injuries made worse by a doctor or hospital mistake.

Contact Our Virginia Beach Personal Injury Law Firm Today

If you or a family member are seeking clarification relating to injuries you have, please consult with one of our Virginia personal injury attorneys as we provide free confidential consultations on matters like these.