Our Virginia medical malpractice injury lawyers field calls and inquiries from family members or victims of medical malpractice every week. Some of the inquiries ask: “How long is the Virginia medical malpractice statute of limitations?” and some ask us, “Are there any exceptions that can extend the Virginia medical malpractice statute of limitations?”
First of all, the general rule in Virginia is that a 2-year personal injury statute of limitations applies to medical malpractice claims, and this normally includes where the medical malpractice causes death (a Virginia medical malpractice wrongful death claim). This particular 2-year statute of limitation period will apply in claims involving persons who are over 18 and in situations where there are no special circumstances. This article examines several special circumstance exceptions to the rule about the 2-year personal injury medical malpractice statute of limitations.
Claims for Minors (Persons Under 18)
There are exceptions that extend the 2-year Virginia personal injury statute of limitations if the claim involves a person who is a minor under 18. The Virginia Code § 8.01-229 under Section 1 says that a minor has no legal capacity (a minor is considered under disability) to file a personal injury lawsuit.
From the day the minor turns 18 years of age, they will normally have two years from that date (which is until their 20th birthday) in Virginia to file their non-medical malpractice personal injury lawsuit. In other words, a minor has until age 18, plus two years to make a non-medical malpractice personal injury claim if they wish to sue the at-fault party for compensation.
However, there are two different rules that apply to minors for medical malpractice claims. The first extension of the limitation period has to do with a claim for a person who is a baby or who is less than 8 years of age at the time that the act of medical negligence occurs and what the statute does is extend the time for a suit on behalf of the minor be brought until age 10. The Virginia code section which governs this particular rule relating to minors is Virginia Code § 8.01-243.1 which reads in pertinent part as follows:
8.01-243.1. Actions for medical malpractice; minors.
Notwithstanding the provisions of § 8.01-229 A and except as provided in subsection C of § 8.01-243, any cause of action accruing on or after July 1, 1987, on behalf of a person who was a minor at the time the cause of action accrued for personal injury or death against a health care provider pursuant to Chapter 21.1 (§ 8.01-581.1 et seq.) shall be commenced within two years of the date of the last act or omission giving rise to the cause of action except that if the minor was less than eight years of age at the time of the occurrence of the malpractice, he shall have until his tenth birthday to commence an action. Any minor who is ten years of age or older on or before July 1, 1987, shall have no less than two years from that date within which to commence such an action.
However, if the minor was 10 years old or younger than 18 years old when the malpractice occurs, the minor has only the normal personal injury law of two years to sue. See Va. Code Section 8.01-243.1 above. This is a major “trap” for injury lawyers. Normally, for non-medical malpractice personal injury claims, a minor can wait until age 18 and still have two more years to sue. This is not true for medical malpractice claims as explained above.
Certain Types of Undiscovered Cancers
Another Virginia statute provides an additional timeframe to file a medical malpractice lawsuit in Virginia if the person learns after the expiration of the 2-year statute of limitations that they have certain forms of cancer or a malignant tumor not diagnosed within 2 years of when the doctor or hospital or medical provider failed to discover the cancer. Ultimately, it must be proved that a reasonably prudent doctor or hospital would have found such cancer. Virginia Code § 8.01-243(C)(3) specifies the types of cancers that are allowed extra time for the filing of a suit of 1 year from when they are discovered as follows:
Virginia Code Section 8.01-243. Personal action for injury to person or property generally; extension in actions for malpractice against health care provider.
- The two-year limitations period specified in subsection A shall be extended in actions for malpractice against a healthcare provider as follows:
- In a claim for the negligent failure to diagnose a malignant tumor, cancer, or an intracranial, intraspinal, or spinal schwannoma, for a period of one year from the date the diagnosis of a malignant tumor, cancer, or an intracranial, intraspinal, or spinal schwannoma is communicated to the patient by a health care provider, provided that the health care provider’s underlying act or omission was on or after July 1, 2008….
However, the provisions of this subsection shall not apply to extend the limitations period beyond 10 years from the date the cause of action accrues, except that the provisions of subdivision A 2 of § 8.01-229 shall apply to toll the statute of limitations in actions brought by or on behalf of a person under a disability.
So, these scenarios generally involve a claim that a doctor, hospital, or radiologist failed to discover one of these types of cancers, and it was later discovered by a physician or hospital, and that discovery occurred after the 2-year statute of limitations. This provision allows an additional 1 year to file the suit but allows that total extension of time to be no more than 10 years after the date of accrual (the first date the cancer should have been discovered).
The Medical Continuing Treatment Rule
There’s another important exception that can make a statute of limitations longer than 2 years from the date the medical negligence occurs in Virginia. This exception is known as the “continuing treatment rule” exception, and it is not a statutory provision of law, instead, it was enunciated by Virginia Supreme Court legal decisions. The basis of this rule is as follows: If a medical provider makes a mistake and violates the medical standard of care but continues an ongoing pattern of treatment of the patient within the medical field in question, the 2-year statute of limitations does not run from when the original negligent act occurred, but from when the continuing medical treatment with that practitioner ends.
So, even if a doctor on January 1, 2020, treated a patient negligently, and the treatment did not end until December 15, 2022, if the continuing treatment rule applies, it would extend that statute of limitations for up to 2 years after the last date of the medical treatment by the same medical provider treating at least some complications or attributes of symptoms of what was missed.
For example, in a recent case, our firm was involved in, an OBGYN doctor began treating our client all the way back in 2005, and the treatment continued until May 2019. We alleged that in February 2018, the doctor conducted a hysterectomy that was either unnecessary at all or which was conducted negligently. We argued that the statute of limitations of 2 years did not begin running until all the treatment ended in May 2019. The doctor’s lawyer argued that the treatment arose from the hysterectomy in February 2018 meaning that the limitation period ended by February 2020. In ruling on this issue, a Portsmouth Circuit Court judge ruled as follows:
When the conduct giving rise to a medical malpractice case is more complex than a single, isolated, non-continuing wrongful act, the continuous treatment rule may be implicated, altering the date the injury is sustained under Section 8.01-230. Farley v. Goode, 219 Va. 969, 976 (1979). The continuing treatment rule applies when the conduct giving rise to medical malpractice occurred during a “continuous and substantially uninterrupted course of examination and treatment” for a particular malady. When the continuing treatment rule applies, the date the injury is sustained under Section 8.01-230 is the date on which the continuous course of examination and treatment for that particular malady terminates, and the injury under Section 8.01-230 comprises all injuries caused by the tortious acts occurring over that continuous course of examination and treatment pertaining to the examination and treatment of that particular malady.
Cochram v. Perwaiz, CL 20-4494, Portsmouth Circuit Court opinion letter, 3/23/22 at p. 2.
The difficulty with the continuing treatment rule in practice is that many attorneys are wary of accepting a personal injury case for medical malpractice if it’s more than 2 years since the date of the act which was alleged to have been the negligent act. Since the continuing treatment rule exception will often not be ruled upon by the Court hearing the case until months after the case is actually filed, lawyers sometimes will not accept a claim that is already beyond the 2 years, but the continuing treatment rule extends the limitation period, under the narrow legal exception that the doctor is still treating the patient for the medical complications all the way through sometime later. In fact, the Virginia Supreme Court stated that often a patient understandably would stick with a doctor who is trying to make up for a prior error or mistake and it promotes an effort by a physician or a hospital to try to correct a problem and avoid a situation that may turn into a medical malpractice suit later.
Fraud, Concealment, or Misrepresentation
Another very rare exception to the statute of limitations can arise in the unusual circumstance where a medical provider misrepresents the patient records, conceals pertinent facts from the patient, which fraudulently induces a patient, or leads to a patient not realizing they have a medical malpractice claim until later. This exception which is found in Virginia Code § 8.01-243 (C)(2) is called the fraud exception. It does require a rare circumstance where a medical provider either falsifies medical records, changes medical records to stop a patient from learning the truth, or simply where a doctor misrepresents symptoms in the patient’s chart that the patient never expressed.
In our case, we alleged the doctor wrote false symptoms in the medical record of his patient’s chart to justify the hysterectomy. Only after an OBGYN medical expert reviewed the record and obtained an affidavit from our client did that medical OBGYN expert provide an opinion that the doctor had misrepresented and written false symptoms in the chart to justify the unnecessary surgery and we alleged it was an effort by the doctor to make money at his patient’s expense. In this example, the fraud exception allows 1 year from when the fraud or misrepresentation is discovered for the filing of the Virginia medical malpractice suit, despite the passage of two years from when the wrongful act occurred. This is another rare exception that attorneys do not like to rely upon unless there is clear evidence to support it.
The statutory exception reads:
- 8.01-243. Personal action for injury to person or property generally; extension in actions for malpractice against health care provider.
- [(C)] 2. In cases in which fraud, concealment, or intentional misrepresentation prevented discovery of the injury within the two-year period, for one year from the date the injury is discovered or, by the exercise of due diligence, reasonably should have been discovered;
- However, the provisions of this subsection shall not apply to extend the limitations period beyond 10 years from the date the cause of action accrues, except that the provisions of subdivision A 2 of § 8.01-229 shall apply to toll the statute of limitations in actions brought by or on behalf of a person under a disability.
In one case we handled, the court found as follows with regard to this fraud exception:
In a medical malpractice case, even when over two years have passed since the date the injury was sustained under Section 8.01-230, if “fraud, concealment, or intentional misrepresentation” prevented the plaintiff from discovering the injury, then the plaintiff will still have one year to file a complaint “from the date the injury is discovered or, by the exercise of due diligence, reasonably should have been discovered. § 8.0l-243(C)(2). Counsel for Plaintiff argued the medical malpractice fraud discovery rule applies because Defendant intentionally concealed and misrepresented the unnecessariness of the hysterectomy and April 19, 2019 procedures, and Plaintiff was first put on notice of the unnecessariness of these medical procedures in February 2021, when Dr. Goldberg formed his opinion after reviewing Plaintiff’s medical records. Counsel for Plaintiff also argued this discovery rule preserves the right to recover for other medical malpractice injuries connected to the misrepresentation and concealment.
Cochram v. Perwaiz, CL 20-4494, Portsmouth Circuit Court opinion letter, 3/23/22 at p. 4.
Objects Left inside the Body (Tools, Sponges, Towels)
Unfortunately, a medical “never event” is a surgical tool, sponge, or towel, left inside the patient by mistake. These events should “never” occur, but sometimes do. There is a Virginia statutory exception extending the statute of limitations one year from discovery of an object left behind, but note this will not apply to a medical device or implement intended to be left in the patient’s body (even if it breaks or is defective). The exception is Va. Code sec. 8.01-243 (C)(1):
- The two-year limitations period specified in subsection A shall be extended in actions for malpractice against a healthcare provider as follows:
- In cases arising out of a foreign object having no therapeutic or diagnostic effect being left in a patient’s body for a period of one year from the date the object is discovered or reasonably should have been discovered;
- However, the provisions of this subsection shall not apply to extend the limitations period beyond 10 years from the date the cause of action accrues, except that the provisions of subdivision A 2 of § 8.01-229 shall apply to toll the statute of limitations in actions brought by or on behalf of a person under a disability.
The question in foreign body/tool left behind cases is how extensive the patient’s damages and complications are, and we have handled several such cases when surgery or serious infection is the result of the never event.
Covid-19 Pandemic Exception
During the COVID-19 pandemic, the Virginia Supreme Court entered a series of emergency orders that tolled all civil statutes of limitations during a limited time because the courts could not hold hearings or trials. For actions that arose during the main pandemic phase, these Virginia Supreme Court emergency orders served to add an extra 126 days to the regular statute of limitations (adding about four months).
There are three different scenarios to consider:
- For an action that arose/accrued on or before March 15, 2020, and the limitation period had not expired by March 16, 2020, the best way to calculate the filing deadline is to start at the original deadline and add exactly 126 days. For example, for a personal injury claim on behalf of an adult, and the injury occurred on February 1, 2019, the normal limitation deadline is February 1, 2021. The addition of 126 days to this yields a new deadline date of May 7, 2021. For a similar claim that accrued on June 20, 2018, the original filing deadline was June 20, 2020. Adding 126 days to those results in a new deadline date of October 24, 2020.
- For actions that accrued during the COVID-19 judicial emergency tolling period – that is, any date between March 16 and July 19, 2020, inclusive – the two years began to run on July 20, 2020. The deadline to file for all cases within this timeframe is July 20, 2022. Note that for rights of action accruing during this period, do not add 126 days to the otherwise applicable limitations period. July 20, 2022, is a hard deadline for such claims.
- For actions that arose/accrued on or after July 20, 2020, the tolling provision does not affect the deadline date.
Pending Criminal Charges against Medical Provider
It is rare that criminal charges will be pending against a doctor for the same acts/actions that a medical malpractice claim arises from, but the pending criminal case does extend and toll the applicable civil action. Va. Code 801-229 (K) states:
- Suspension of limitations during criminal proceedings. — In any personal action for damages, if a criminal prosecution arising out of the same facts is commenced, the time such prosecution is pending shall not be computed as part of the period within which such civil action may be brought. For purposes of this subsection, the time during which a prosecution is pending shall be calculated from the date of the issuance of a warrant, summons, or capias, the return or filing of an indictment or information, or the defendant’s first appearance in any court as an accused in such a prosecution, whichever date occurs first, until the date of the final judgment or order in the trial court, the date of the final disposition of any direct appeal in state court, or the date on which the time for noting an appeal has expired, whichever date occurs last. Thereafter, the civil action may be brought within the remaining period of the statute or within one year, whichever is longer.
Incarceration
If a party holding a medical malpractice or personal injury claim becomes incarcerated, it could potentially extend the statute of limitations. Consult one of our Virginia personal injury attorneys as to the ramifications.
Incapacity and Disability
Another exception that tolls the statute of limitations or extends the period is when the victim or patient is incapacitated, legally speaking, lacking the ability to carry on their affairs, and during the period of this disability, a statute of limitations is tolled or does not accrue. It does not have to be medical malpractice-related incapacity and requires either that a legal incapacity order be entered by a court or there must alternatively be proof that the person who holds the medical malpractice claim was disabled, incapacitated, or otherwise not competent to carry out regular affairs during the time of supposed incapacity. Nonetheless, incapacity can be an exception to extend the 2-year statute of limitations period. Va. Code sec. 8.01-229 (A)(2)(b) reads:
- If a person entitled to bring such action becomes incapacitated, the time during which he is incapacitated shall not be computed as any part of the period within which the action must be brought, except where a conservator, guardian, or committee is appointed for such person in which case an action may be commenced by such conservator, committee or guardian before the expiration of the applicable period of limitation or within one year after his qualification as such, whichever occurs later.
For the purposes of subdivisions 1 and 2, a person shall be deemed incapacitated if he is so adjudged by a court of competent jurisdiction or if it shall otherwise appear to the court or jury determining the issue that such person is or was incapacitated within the prescribed limitation period.
Wrongful Death and Medical Malpractice
When the alleged medical malpractice results in death, this is both a medical malpractice and a wrongful death claim. Wrongful death is permitted in Virginia by statute, and see other articles on our website that provide details on Virginia wrongful death claims. Wrongful death medical malpractice claims in Virginia are subject to a 2-year statute of limitations just like other personal injury cases. However, a personal representative must be appointed for a deceased person to represent their “estate” in a Virginia medical malpractice case, and it depends on whether the person has a will or not on whether that representative is called an executor or an administrator. Administrators are appointed in cases where persons die without a will. In any case, there are exceptions that allow for extensions of the applicable statute of limitations depending upon when a representative is appointed for the person who may have died as a result of medical malpractice. Again, consult one of our Virginia medical malpractice attorneys about the relevant statute of limitations if a medical malpractice claim results in death, as the statute of limitations can be more than two years depending on when the legal representative was first appointed by the Court deputy clerk, and depending on other variables.
Have Questions? Contact an Experienced Personal Injury
As one can see, there are a number of different potential extensions of the Virginia medical malpractice statute of limitations, and if you have a question about whether a particular potential medical malpractice claim is timely or whether it may be subject to an exception to allow for a filing of a lawsuit after the expiration of 2 years, please speak to one of our Virginia personal injury/medical malpractice attorneys.