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Statute of Limitation for A Medical Malpractice Claim/Case/Suit in Virginia (VA) Or North Carolina (NC)?

Our Virginia (VA) Carolina (NC, SC) injury law firm, based in Norfolk and Virginia Beach is often called by potential clients with questions about what the personal injury statute of limitations is for medical malpractice (and wrongful death) suits in Virginia (VA) or North Carolina (NC). The answers depend on a number of circumstances and there are some fairly complicated analyses that need to be done, often by an experienced injury trial lawyer based in Virginia or Carolina.  Because our lawyers are licensed in Virginia & North Carolina (as well as South Carolina, West Virginia, & Kentucky) and because our home office is geographically close to the North Carolina border, we must deal with Virginia and North Carolina statute of limitations issues a lot.


{Click here to learn what Virginia medical malpractice lawyers know about deaths caused by medical negligence}


Virginia Limitations Periods for Injuries or Wrongful Death


First, in Virginia the general personal injury case statute of limitations is two years, but sometimes, it is whether exceptions apply that are important. The two year Virginia limitation period applies to an action that is filed in the state of Virginia normally whether or not the accident occurred elsewhere, for “common law” negligence/carelessness suit alleging personal injuries. Medical malpractice actions filed in Virginia also follow the general two-year statute of limitations, although special exceptions that may extend the medical negligence statute of limitations can apply. One of the exceptions is where something is discovered some time later after an initial surgery or medical procedure, and this is called the “discovery rule.” When it applies, the "discovery rule" permits a suit to be filed within a certain period of time after the injury is discovered, or reasonably should have been discovered. The discovery rule does not apply to all civil injuries, and sometimes the period of time for bringing a claim post-discovery can be short, so it is important to seek legal assistance quickly in the event of the late discovery of an injury.  The Virginia discovery rule extension is still highly limited for medical negligence/malpractice and you must consult a personal injury lawyer to understand how to deal with a case that may involve something that you believe was “hidden” by the hospital or medical doctor from you (like a sponge or towel sewn up in your body, or a piece of a surgical tool left in a surgical site).


Even as to personal injury claims, depending on where and how they occur, there are sometimes state or federal statutes that may grant a right of action, separate and apart from a general negligence action for injuries.  Note that “special” sorts of state or federal statutes can provide for a DIFFERENT statute of limitations than the two year period discussed above.  Again, specific legal advice should be sought out.


Also, minors (those under 18 years old when the injury is suffered) or persons under disabilities/incompetents may have an extended period of time to file a personal injury action in Virginia, but there are outside absolute limitations on how much longer than two years a minor may file a medical malpractice action-see legal advice to learn the details. The extension periods over two years also apply to minors in general personal injury actions-- you should consult an experienced Virginia personal injury lawyer if you have questions in that regard.  On all these issues:  never just read something on this website and believe it applies to your situation-always get legal advice in the first year after the injury or death—never let two years lapse in Virginia or Carolina!


Note that the two-year personal injury Virginia statute of limitations may not apply to an action that does not involve a negligent or careless personal injury claim, meaning if you suffered assault or battery, or if the injury arises from an intentional act of the other party--Virginia may apply a shorter one year statute of limitations to those limited types of injuries so seek legal advice well within one year from the injury date.   The two year Virginia limitation period covers general personal injury claims such as car accidents, truck accidents, slip trip and fall cases, rental or uninsured motorist injury cases, injuries caused by drunk drivers to persons driving cars, pedestrian/crosswalk injury cases, motorcycle injury cases, personal injuries due to negligence of restaurants/bars/nightclubs, personal injuries in aircraft or aviation crashes/accidents, injuries suffered in industrial settings, explosions or electrical injuries that cause personal injuries and the list goes on.


Virginia permits wrongful death actions filed in the state to be brought within two years of the date of the injury. Again, whether or not there are any methods or legal exceptions that allow a suit to be brought more than two years after the date of death require analysis by an experienced personal injury lawyer.  Some situations involving wrongful death can involve special statutes, and these special rights of action can build in a different limitation period than Virginia’s two year period.


As can be seen with the above outline, the general personal injury statute of limitations in Virginia is two years, but an experienced lawyer may figure out a way that an injury that may have occurred in Virginia could actually be sued for in another state, which state may have a longer statute of limitations applying to suits filed in that other state. This certainly applies to the bordering state of North Carolina. For example, a North Carolina resident who is traveling in Virginia and is injured in Virginia, would face a two-year statute of limitations on personal injury if the action was filed in a Virginia state court (for a common law negligence injury action). What statute of limitations would apply if that North Carolina resident instead sought to file the personal injury action in North Carolina state courts? First of all, there has to be a legal basis to allow the injury suit he filed in North Carolina where the injury occurred in Virginia. That legal basis for filing the action in North Carolina state court would be based partly on whether the potential party/defendant that caused the personal injury either resided in North Carolina (when the injury occurred) or actively did business in the state of North Carolina. A company doing business in state is normally subject to being sued for personal injury in any state where it does business, and must have what is called a registered agent, who can be served with legal papers.


Turning to North Carolina Statute of Limitations Issues


North Carolina follows a three-year personal injury statute of limitations for actions filed in NC state courts that involve common-law negligence personal injury claims. However, North Carolina follows a shorter two-year statute of limitations for wrongful death claims that arise from negligent conduct. As discussed above in this article, some very limited exceptions to the statute of limitations can apply in circumstances involving minors, as well as to persons who were under a disability, such as an incompetent (where a person is being cared for and has been declared incompetent, or is suffering a mental disability whether from an accident or otherwise).


In North Carolina, medical malpractice actions are considered personal injury actions and the three year statute of  limitations will apply unless some special exception exists. One must be careful if the medical malpractice involves a wrongful death as the two-year limitation period would normally apply.


North Carolina also has a special limitation of action statute called a “borrowing statute” which favors North Carolina residents if they are hurt in another state, and if the other state has a shorter statute of limitations than in North Carolina. NC’s borrowing statute says that if a resident of NC is hurt in another state, and files the personal injury suit in North Carolina, the NC courts should “borrow” the state limitation period of the state where the accident occurred.  However, the borrowing statute goes on to state that if the other state’s statute of limitations is shorter, not as long as North Carolina’s, then the North Carolina three year statute will apply.  What this means is that if a North Carolina resident is hurt in Virginia, and the North Carolina resident wanted to file the action in North Carolina, the North Carolina three-year statute of limitations would apply in the NC state court, even though Virginia follows a two-year statute of limitations for actions filed in Virginia court. This is based on the special North Carolina borrowing statutes mentioned above, but keep in mind that there still must be a legal basis to sue the negligent part in the state of North Carolina or that negligent party can get the case moved out of NC most likely. An experienced injury attorney practicing in Virginia and North Carolina should evaluate an injury claim involving across border injury circumstances like the examples mentioned.


Randall E. Appleton
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Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia