Statute of Limitations
In Virginia, most personal injury and wrongful death actions against health care providers must be filed with the Court within two years of the date of the negligence. In limited circumstances, you may be able to file a medical malpractice claim after the two year statute of limitations under what is called the continuing treatment doctrine. This rule is very complicated, so speak with an attorney immediately.
The rules for children are different. If the parent or guardian of a someone under 18 wants to file a claim for damage to property they have five years after the damage, to recover the actual damages or medical bills. For medical malpractice claims for minors, it gets confusing: if the child is less than 8 at the time of the injury, they have until their 10th birthday to bring the claim. If the child was older than ten, they have two years from that date to file the action. You may have, however, until the child's 18th birthday if they want to file the claim when they are "legal."
Process of filing a claim
First, the attorney must review the relevant medical records. Once the records are requested, a doctor or hospital or nursing home has 2-3 days to produce the records. They can charge a reasonable copying fee. It will take most law offices 2-4 weeks to review the records and decide whether it is a case worth investigating.
If after reviewing the records, the attorney believes the case is worth investigating, expert review will be required. An expert is a licensed health care provider who serves in the same area or specialty as the health care provider you believe acted negligently.
In Virginia, an expert is required in almost all cases. Often, more than one expert may be necessary. And you just can't hire any doctor your expert must meet a certain set of standards. Typically, your attorney will find the experts for you, and they are not cheap! An expert will charge $300-$400 an hour to review a case and more for court time and depositions. If the expert believes malpractice occurred, they will have to certify their opinion in writing. This is a new requirement in Virginia.
From start to end, a lawsuit in Virginia State Courts could take 1-2 years. It begins by filing the lawsuit, which is called a COMPLAINT, and includes a list of the relevant facts and allegations. Next it is served which usually means a Sheriff will deliver the document. After the lawsuit is filed and served, both sides will issue what is called written discovery. Written discovery is when both sides request documents and answers to questions under oath.
In addition, both sides are given the opportunity to question their opponents'witnesses and clients under oath. Plaintiffs will likely be deposed, as well as employees of the defendant, experts, etc.
If the clients agree, settlement negotiations can occur in an attempt to resolve the case before it goes to trial.
Trial is emotional, and it can be a long. Please note not everyone will have the opportunity to have a jury hear their claim in Court. See March / August 2006 articles on http://legalmedicine.blogspot.com/.
Please note that there are many healthcare providers in Virginia that are considered employees of the state, and thus entitled to sovereign immunity.
Burden of Proof
You cannot just tell the jury that you think the doctor or health care provider messed up. In Virginia, you must prove the following:
That the health care provider failed to provide care in accordance with "the degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth" that the health care provider's negligence was the cause of your damages.Limitations