Virginia Medical Malpractice Summary

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In some respects, Virginia has been conservative about modifying the common law, retaining such traditional rules as contributory negligence, joint and several liability, and the collateral source rule. However, it has adopted three major modifications of medical malpractice law: a damage cap, screening of proposed lawsuits by a medical review panel, and a state fund to compensate victims of birth-related neurological injuries. Much legislation specific to medical malpractice is in the Medical Malpractice Act, Va. Code Ann. §§ 8.01-581.1 to 8.01-581.20 (LEXIS 2003).

Statutes of Limitations

All medical malpractice actions for injury (as opposed to death) must be brought within two years from the date the cause of action accrued, which is the date of injury. Va. Code Ann. §§ 8.01-230 and 8.01-243(A) (LEXIS 2003). The Supreme Court has rejected the judicial adoption of a discovery rule, Nunnally v. Artis, 254 Va. 247, 492 S.E.2d 126, (1997), but holds that continuing treatment for the same conditions tolls the statute until treatment ends. Grubbs v. Rawls, 235 Va. 607, 369 S.E.2d 683 (1988). In foreign object cases and cases of fraud or concealment, the statute is extended to one year from the date the object or injury is discovered or reasonably should have been discovered, but this extension is subject to a ten-year limit from the time the cause of action accrued. Va. Code Ann. § 8.01-243(C) (LEXIS 2003). Wrongful death actions must be brought within two years of death. Va. Code Ann. § 8.01-244 (LEXIS 2003).

A parent’s action for medical expenses caused by injury to a minor must be brought within five years. Va. Code Ann. § 8.01-243(B) (LEXIS 2003). A minor’s medical malpractice action for injury or death must be commenced within two years from the date of the last act of negligence, unless the child is less than eight years of age, in which case the action must be brought by the child’s tenth birthday. Va. Code Ann. § 8.01-243.1 (LEXIS 2003). The Supreme Court has upheld the constitutionality of this statute. Willis v. Mullett, 263 Va. 653, 561 S.E.2d 705 (2002). Incapacity tolls the running of the statute of limitations. Va. Code Ann. § 8.01-229(A) (LEXIS 2003).

Contributory or Comparative Negligence

Virginia recognizes the doctrine of contributory negligence in medical malpractice cases. A plaintiff’s contributory negligence may bar his recovery entirely, but it must be concurrent with the defendant’s negligence. Sawyer v. Comerci, 264 Va. 68, 563 S.E.2d 748 (2002); Ponirakis v. Choi, 262 Va. 119, 546 S.E.2d 707 (2001).

Joint and Several Liability

Virginia imposes joint and several liability on joint tortfeasors. Va. Code Ann. § 8.01-443 (LEXIS 2003). Thus, any joint tortfeasor against whom a judgment is entered is liable to the plaintiff for the entire judgment, regardless of the tortfeasor’s degree of fault.

Contribution

Joint tortfeasors have a right to contribution in cases of negligence with no moral turpitude. Va. Code Ann. § 8.01-34 (LEXIS 2003). A joint tortfeasor who settles is not subject to contribution from the others, and is not entitled to contribution unless the settlement specifically discharges all joint tortfeasors from liability. Va. Code Ann. § 8.01-35.1 (LEXIS 2003).

Vicarious Liability

Under the doctrine of respondeat superior, hospitals in Virginia are vicariously liable for the negligence of their employees but not that of independent contractors. McDonald v. Hampton Training School for Nurses, 254 Va. 79, 486 S.E.2d 299 (1997). Whether a physician should be considered an employee is a question of fact not to be determined by whether the hospital calls him one, but by the factors of selection and engagement, payment of compensation, power of dismissal, and (most importantly) power to control the physician’s work. A physician’s exercise of professional judgment in the performance of professional duties is a factor, but not the only factor, in deciding whether the hospital has the power to control his work. Id. There is also authority for holding a hospital liable for the act of a physician on the theory of negligent credentialing. Stottlemyer v. Ghramm, 2001 Va. Cir. LEXIS 501 (Va. Cir. Ct. July 13, 2001).

Expert Testimony

Except for rare cases within the common knowledge and experience of lay jurors, expert testimony is necessary to establish the standard of care, a deviation from the standard, and the proximate cause of injury. Perdieu v. Blackstone Family Practice Center, Inc., 264 Va. 408, 568 S.E.2d 703 (2002). To testify as an expert on the standard of care a witness must demonstrate expert knowledge of the standards of the defendant’s specialty and have had an active clinical practice in either the defendant’s specialty or a related field of medicine within one year of the date of the alleged act or omission. Va. Code Ann. § 8.01-581.20 (LEXIS 2003).

Damage Caps

Virginia imposes a cap on damages of all kinds in medical malpractice cases. For claims arising out of acts or omissions prior to August 1, 1999, the damage cap is $1 million. For acts or omissions on or after August 1, 1999, and before July 1, 2000, the cap is $1.5 million. The cap is increasing by $50,000 every July 1. Two final increases of $75,000 beginning in 2007 will bring the damage cap to $2 million for acts or omissions on or after July 1, 2008. Va. Code Ann. § 8.01-581.15 (LEXIS 2003). The Virginia Supreme Court has twice considered this legislation and held that it does not violate the U.S. or Virginia constitutions. Pulliam v. Coastal Emergency Services, Inc., 257 Va. 1, 509 S.E.2d 307 (1999); Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989). A settlement with one defendant reduces the maximum liability of the others, because the cap limits the total amount recoverable for an injury to a patient, regardless of the number of theories or defendants. Fairfax Hospital System v. Nevitt, 249 Va. 591, 457 S.E.2d 10 (1995). This includes punitive damages. Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1990). In cases arising prior to March 28, 1994, when the definition of “health care provider” was broadened in Va. Code Ann. § 8.01-581.1 (LEXIS 2003), a physician’s professional corporation may be subject to uncapped liability. Schwartz v. Brownlee, 253 Va. 159, 482 S.E.2d 827 (1997).

Virginia limits punitive damages to $350,000. Va. Code Ann. § 8.01-38.1 (LEXIS 2003). This cap is also constitutional. Wackenhut Applied Technologies Center, Inc. v. Sygnetron Protection Systems, Inc., 979 F.2d 980 (4th Cir. 1992).

Statutory Cap on Attorneys’ Fees

There is no Virginia statute setting a limit on attorneys’ fees in medical malpractice actions.

Periodic Payments

Periodic payments or structured settlements are allowed in Virginia; however, there is no statutory requirement for the periodic payment of personal injury claims. A settlement agreement on behalf of a disabled person involving periodic payments must be reviewed by the court and secured by a bond or insurance. Va. Code Ann. § 8.01-424 (LEXIS 2003).

Collateral Source Rule

Virginia recognizes the collateral source rule, under which a claimant’s receipt of collateral payments does not reduce his recovery. This is statutory for lost income, Va. Code Ann. § 8.01-35 (LEXIS 2003), but the courts follow the rule for all damages in tort cases. See Schickling v. Aspinall, 235 Va. 472, 369 S.E.2d 172 (1988).

Pre-Judgment Interest

In Advanced Marine Enterprises v. PRC, Inc., 256 Va. 106, 126, 501 S.E.2d 148, 160 (1998), which was not a malpractice case, the Virginia Supreme Court reversed an award of pre-judgment interest on the unliquidated part of the damages, stating, “Generally, prejudgment interest is not allowed on unliquidated damages in dispute between the parties.” This should apply to most medical malpractice. However, the decision also notes that Va. Code Ann. § 8.01-382 (LEXIS 2003) leaves the date from which interest should run to the sound discretion of the trial court. In Pulliam v. Coastal Emergency Services, Inc., 257 Va. 1, 509 S.E.2d 307 (1999), the court reversed an award of pre-judgment interest because it exceeded the damage cap, but did not comment on whether such interest should have been awarded at all. In cases where pre-judgment interest is proper, the rate is nine percent. Va. Code Ann. § 6.1-330.54 (LEXIS 2003).

Patient Compensation Funds and Physician Insurance

Virginia does not have a general patient compensation fund covering all medical malpractice claims. However, the Birth-Related Neurological Injury Compensation Act, Va. Code Ann. §§ 38.2-5000 to 38.2-5021 (LEXIS 2003), covers infants who suffer permanent, disabling damage to the brain or spine caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation. Va. Code Ann. § 38.2-5001 (LEXIS 2003). This no-fault program is the exclusive remedy for such infants and their parents against participating physicians and hospitals, who must pay an annual assessment. Va. Code Ann. §§ 38.2-5001 and 38.2-5002 (LEXIS 2003). The fund provides for lifetime medical expenses as well as one-half of the Virginia average weekly wage after the child reaches age eighteen. Va. Code Ann. § 38.2-5009 (LEXIS 2003). Many hospitals and physicians choose not to participate. In cases arising prior to April 1, 2000, a participating physician’s professional corporation may be sued even in cases otherwise covered exclusively by the fund. Jan Paul Fruiterman, M.D. & Associates v. Waziri, 259 Va. 540, 525 S.E.2d 552 (2000). Although the legislature promptly closed this loophole by expanding the definition of “participating physician” in Va. Code Ann. § 38.2-5001 (LEXIS 2003), the Supreme Court has declined to apply the amendment retroactively. Berner v. Mills, 265 Va. 408, 579 S.E.2d 159 (2003).

Immunities

Virginia has waived sovereign immunity in tort cases, subject to significant limitations. No claimant may recover more than $100,000 or the limits of applicable insurance, whichever is greater. No judgment against the state may include pre-judgment interest or punitive damages. Va. Code Ann. § 8.01-195.3 (LEXIS 2003). This immunity extends sometimes to physicians employed by the state, depending on the degree of control exercised over them, Lohr v. Larsen, 246 Va. 81, 431 S.E.2d 642, (1993), but never to independent contractors. Atkinson v. Sachno, 261 Va. 278, 541 S.E.2d 902 (2001). Virginia has not waived sovereign immunity for local units of government. Municipalities are immune for negligence in the performance of governmental functions, including the operation of a hospital. Edwards v. Portsmouth, 237 Va. 167, 375 S.E.2d 747 (1989) (dictum).

A charitable entity is not liable to its beneficiaries for the negligent acts of its agents if due care has been exercised in their selection and retention. Mann v. Sentara Hospitals, Inc., 59 Va. Cir. 433 (2002) (discussing application of the doctrine to a medical faculty foundation). However, charitable immunity has been withdrawn from hospitals, except where a hospital renders exclusively charitable medical services, or where the patient signed an express agreement providing that all medical services would be supplied on a charitable basis. Va. Code Ann. § 8.01-38 (LEXIS 2003).

Arbitration

The Virginia Medical Malpractice Act provides a system of medical malpractice review panels to assess the validity of newly-filed medical malpractice claims. At the request of either party, the Supreme Court of Virginia appoints a panel to review the claim, consisting of two doctors, two lawyers, and a non-voting judge as chairman. Va. Code Ann. §§ 8.01-581.2 and 8.01-581.3 (LEXIS 2003). The panel determines whether the evidence supports the conclusion that the health care provider failed to comply with the relevant standard of care and whether that failure proximately caused the injury. Va. Code Ann. § 8.01-581.7 (LEXIS 2003). The findings of the panel are non-binding and the claimant has the option of filing a lawsuit after the panel has made its ruling. However, any opinion of the medical review panel is admissible as evidence in a subsequent action. Both parties have the right to call panel members, except the chairman, as witnesses. Va. Code Ann. § 8.01-581.8 (LEXIS 2003).

Parties may also agree in advance of treatment to binding arbitration of any claim, so long as the patient has the option to withdraw from the agreement within 60 days after the termination of treatment. Va. Code Ann. § 8.01-581.12 (LEXIS 2003).

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Revision Date: February 6, 1998