Medical Malpractice occurs when a healthcare professional fails to use the degree of care that a healthcare professional of similar training and experience would ordinarily be used. People who suffer injuries due to medical malpractice may be entitled to damages for their injuries. However, medical malpractice lawsuits are often complex and involve a close review of medical records and the opinions of expert witnesses. Because of the vast amount of discovery and complexities involved, it is recommended that you speak with a medical malpractice attorney if you have been injured or a loved one has died due to your healthcare provider’s negligence.
The Elements of Medical Malpractice
In medical malpractice claims, the plaintiff has the burden of proof. This means that the plaintiff must prove each element required for a successful claim. The details needed to be verified by a plaintiff in a claim are similar to those which must be established in a negligence claim and include the following:
- There was a standard of care required in place at the time that the alleged malpractice took place
- The healthcare provider did not meet the standard of care
- The healthcare provider’s breach of that standard of care directly caused the plaintiff’s injuries
- The plaintiff suffered damages
Virginia Medical Malpractice
Virginia law states that medical malpractice is a tort action or breach of contract action for personal injuries or wrongful death that results from the services rendered or the omission of the services that the healthcare provider should have caused to a patient. A “healthcare provider” may seem easy to define and includes physicians and surgeons—however, Virginia law limits who may be defined as such. For example, a physician who operates under an expired license will likely not be considered a healthcare provider for Virginia’s medical malpractice laws. However, nursing homes and the nurses employed there are likely to be considered healthcare providers. If you are unsure if the medical professional who caused your injury is regarded as a “healthcare provider,” you should speak with an experienced medical malpractice attorney.
Statute of Limitations in Virginia Medical Malpractice Cases
Generally, a plaintiff has two years from the date of the alleged malpractice to file a claim in Virginia. However, where a foreign object is involved, such as a scalpel or sponge, the plaintiff has two years from that negligence or one year from the date the thing was discovered or reasonably should have been discovered. In addition, if the malpractice caused the patient’s wrongful death, the family members entitled to a wrongful death claim have two years from the date of death to file the lawsuit.
Regarding minors, Virginia law states that where a patient is under the age of eight, a medical malpractice lawsuit must be brought by his tenth birthday. For those patients who are eight years old or older, the lawsuit should be brought within two years of the alleged malpractice.
Washington D.C. Medical Malpractice
Washington D.C. law provides different steps when a plaintiff seeks to file a medical malpractice suit. Unlike Virginia, D.C. requires that the plaintiff notify potential defendants of a medical malpractice claim he intends to file. This rule states that the plaintiff must notify the healthcare provider of the claim at least 90 days before filing. The notice should sufficiently describe the basis for the claim.
Statute of Limitations in Washington D.C. Medical Malpractice Cases
The statute of limitations in D.C. medical malpractice cases is three years and begins to run from the date the alleged malpractice occurred or from the date the plaintiff discovers or reasonably could be expected to discover the injury. In the case of a minor, someone who is mentally incompetent, or someone in prison, the statute of limitations doesn’t begin to run until the statuses of these plaintiffs change. Additionally, a minor has until his 21st birthday to file a lawsuit.
Damages Awarded in Medical Malpractice Lawsuits
A plaintiff in a medical malpractice action may be entitled to economic and non-economic damages. Economic damages include:
- Past medical expenses such as those expenses for additional surgeries required as a result of the malpractice
- Future medical expenses based on the expert testimony that treatment will be required in the future
- Lost wages including the loss of past and future earnings
Non-economic damages include:
- Pain and suffering, including mental pain and anguish
- Loss of enjoyment of life and other inconveniences
Punitive damages in Virginia and D.C. medical malpractices are uncommon. The court will only award these when the healthcare provider acted egregiously or criminally. These damages are intended to deter others from engaging in similarly contemptible conduct and are rarely granted.
Unlike D.C., Virginia law caps the number of damages awarded in these cases no matter the amount of economic loss to the plaintiff. While the cap was set at two million dollars, beginning in July of 2012, the amount increased and will continue to increase by $50,000 each year until the hat reaches 3 million dollars in July of 2031.
Contributory Negligence
Virginia and Washington D.C. both operate under a pure contributory negligence theory. Where a plaintiff is even slightly responsible for his injury, recovery will be barred. This means that if a plaintiff has been negligent in that he has skipped appointments or refused to follow treatment plans, he may not recover any damages for a healthcare provider’s malpractice.
Call the Virginia and D.C. Attorneys of McClanahan Powers, PLLC
If you or a loved one has been injured or otherwise harmed due to a healthcare provider’s negligence, you may be entitled to compensation. The experienced medical malpractice attorneys at McClanahan Powers, PLLC, will help you understand your rights and the best course of action to receive total payment for your injuries. We will guide you through every step of a complex and often confusing malpractice action and answer any questions you might have. Call McClanahan Powers, PLLC at 703-520-1326, or visit our website and schedule your consultation today.