Virginia Medical Malpractice Law and Settlement Value

Virginia is a big state, and Northern Virginia is one of the most densely populated metropolitan areas in the country. Thousands of medical malpractice cases get filed in Virginia’s civil courts each year. Like all states, Virginia has its own unique common law rules and statutory laws governing medical professionals’ liability and patients’ right to sue them. Although Miller & Zois is based in Maryland, we regularly handle cases in Virginia through a close working partnership with local counsel.

Anyone considering a medical malpractice lawsuit in Virginia needs to be familiar with the state’s malpractice laws because they can significantly impact medical malpractice lawsuit in Virginia needs to be familiar with the state’s malpractice laws because they can have a significant impact on the value of your case or whether you have the right to sue at all.

Virginia Medical Malpractice Settlements and Jury Payouts

The settlement compensation a victim can expect in a medical malpractice lawsuit in Virginia will vary depending on several factors:

  • severity of the injuries
  • extent of the damages,(the victim’s personal pain and suffering)
  • the jurisdiction (again, Northern Virginia, Richmond, and Virginia Beach are better)
  • the strength of the evidence
  • the reputation of the doctor and how they will present at trial
  • the complexity of the lawsuit (less complexity is better for victims)
  • the skill of the attorneys involved

Below are verdicts and reported settlements from recent medical malpractice cases in Virginia.

  • Stead v Bon Secours (Norfolk 2023) $2,230,000: A 58-year-old patient, who was also a former nurse at the DePaul Hospital, underwent a colon resection surgery in after complaining of abdominal pain. Her recovery was initially uneventful, but four days later, a sharp increase in her white blood cell count signaled a new infection. Despite this, surgeons failed to prescribe antibiotics or order an abdominal CT scan that would have revealed a leak in the patient’s intestine. This untreated complication led to the patient’s death from septic shock caused by multiple organ failure. After hearing five days of testimonies and deliberating for five hours in the family’s wrongful death lawsuit, the jury concluded that two treating physicians from Bon Secours Surgical Specialists had violated the medical standard of care, resulting in a $2.23 million malpractice verdict.
  • Plaintiff v. Defendant (Fairfax 2023) $900,000: A Northern Virginia plaintiff entered a hospital at 39 weeks to be induced due to concerns over estimated fetal weight, influenced by gestational diabetes and the substantial birth weights of her prior children. During the delivery, when the baby’s head emerged, the attending obstetrician identified potential shoulder dystocia. Despite later claims of applying only gentle traction, the obstetrician used – must have used – a downward force. The baby’s shoulder continued to be trapped against the mother’s pubic bone, necessitating multiple maneuvers, inclusive of a rotational method, to facilitate the delivery. The child has permanent nerve damages at levels C5-C8, with pronounced neuromas and avulsions. These injuries have perpetually affected the child’s daily activities and range of motion. The defense – as they are wont to do – described the injuries to natural childbirth forces, underscoring the unpredictability of shoulder dystocia. The plaintiffs’ view was that the obstetrician’s excessive traction led to the child’s injuries. The case resolved for a settlement amount of $900,000.
  • Rokagos-Russell v Bon Secours (Norfolk 2022) $2,000,000: wrongful death of an 86-year-old male patient was allegedly caused by negligence by the hospital staff for failing to properly supervise him before surgery. A jury in Norfolk awarded $2 million in damages, including $237,000 in economic damages.
  • Sherill-Key v Magee-Rosenblum (Norfolk 2022) $1,500,000: adult female patient died from post-surgical complications 7 hours after undergoing breast reduction surgery that was performed in the defendants’ office. Estate alleged that the defendants failed to perform the procedure in the hospital or admit the decedent to the hospital afterward. Case settled before trial.
  • Lilly v Children’s Health System (Norfolk 2021) $1,175,000: wrongful death of minor child resulting from negligent placement of nasogastric feeding tube resulting in colon perforation. Case settled out of court for $1.1 million.
  • Morgan v Em. Physicians of So. Virginia (W.D. Va. 2021) $250,000: This Virginia wrongful death lawsuit was brought after the death of an adult female due to complications of a tracheal tear she sustained during intubation when she presented to a local emergency room with breathing issues and was intubated by doctors and staff who were agents and/or employees of the defendant.
  • Preltor v Jordan (Chesapeake 2021) $275,000: The plaintiff, a 27-year-old female, went to the defendant OBGYN with complaints of abdominal pain and fear that she was having a second ectopic pregnancy. The OBGYN allegedly failed to diagnose the ectopic pregnancy at that visit resulting in a delay in treatment in the loss of her last fallopian tube, leaving her sterile.
  • Orton v Anglero (Chesapeake 2020) $581,800: wrongful death birth injury case in which defendants were allegedly negligent in handling shoulder dystocia and failing to call for emergency C-section. Case settled before trial.
  • Arnold v Rodriguez (Arlington 2019) $975,000: birth injury case involving brachial plexus injury to child’s right arm allegedly resulting from defendant OB/GYN’s negligent management of complications during childbirth. Case settled before trial.

These cases do not help you compute the settlement payout for your claim.  But it gives you a better idea of how judges and juries value malpractice claims in Virginia.

Severe injury and wrongful death medical malpractice lawsuits in Virginia generally settle for lower amounts than other types of personal injury lawsuits because of the caps on non-economic damages. However, the settlement compensation of a medical malpractice case can still be substantial, especially if the plaintiff has suffered severe and permanent injuries or death and the malpractice is clear.

Virginia Statute of Limitations for Medical Malpractice

The statute of limitations for medical malpractice cases in Virginia is two years. Va. Code Ann. § 8.01-243(A) and § 8.01-244. Unlike most other states, however, Virginia does not follow the so-called “discovery rule” to determine when the 2-year limitation period begins. In Virginia, the 2-year statute of limitations period for malpractice claims begins when the injury occurs, not when the plaintiff discovers they may have a claim.

This strict method of calculating when the 2-year SOL period begins can have harsh results. In some circumstances, the statute of limitations on malpractice might expire before the plaintiff even realizes they have been the victim of medical negligence.

There are several significant exceptions to Virginia’s strict two-year statute of limitations which include:

  1. Cases in which foreign objects were left inside the plaintiff’s body after a medical procedure
  2. Situations when discovery of medical negligence is prevented by fraud
  3. Claims for negligent failure to diagnose a malignant tumor (cancer)
  4. Situations when the plaintiff is a minor or incapacitated (e.g., in a coma)

Va. Code Ann. § 8.01-229. In these circumstances, the 2-year statute of limitations period does not begin to run until 1-year after the injury is discovered.

In medical malpractice cases involving wrongful death, the statute of limitations in Virginia is 2-years from the date of the decedent’s death. Va. Code Ann. § 8.01-244

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Virginia Follows Contributory Negligence

Virginia is one of the small handful of jurisdictions that continues to follow the common law rule of strict contributory negligence. Under strict contributory negligence, if the plaintiff’s own negligent actions contribute to their injuries, they are entirely barred from bringing a claim for medical malpractice. This is true even if the plaintiff is only found to be 5% at fault.

Under a comparative negligence standard, the plaintiff’s damages are simply reduced by the percentage share of their contributory negligence. So if the plaintiff is 5% at fault, their damages would be reduced by 5%. In contributory negligence states like Virginia, however, if the plaintiff is 5% at fault, they are not entitled to any damages.

Virginia’s Cap on Medical Malpractice Damages

Virginia law imposes a maximum cap on the amount of damages a plaintiff can get in a medical malpractice case. In 2023, the cap on malpractice damages in Virginia is around $2.5 million in total damages. Each year, however, the damage cap increases automatically each year, so by 2030 the damage cap will be $3 million.

Virginia’s statutory cap on medical malpractice damages is particularly harsh compared to other states because it is a universal cap that applies to all types or categories of damages. Other states, such as Maryland, have caps on medical malpractice damages, but they only apply to damages awarded for mental pain & suffering with no limit on economic damages. Virginia’s cap applies to all damages (both economic and pain & suffering). This means that $2.5 million is the maximum amount a malpractice plaintiff can get in Virginia.

Informed Consent Law in Virginia

Under Virginia law, informed consent is considered a fundamental aspect of the doctor-patient relationship. For a healthcare provider to obtain informed consent, the patient must be provided with information about the procedure or treatment in a manner that the patient can understand. The healthcare provider must also ensure that the patient is aware of the risks, benefits, and alternatives associated with the procedure or treatment and that the patient has had an opportunity to ask any questions and receive answers.

An informed consent claim in Virginia involves two prongs.  First, the plaintiff must prove that the disclosure was deficient.  Second, the plaintiff must prove that the patient would not have undergone the procedure if properly apprised of risks and alternatives.

Five Elements

We can break down this two-prong test even further.  The victim must prove that:

  1.  a reasonable medical practitioner would have disclosed to the patient about the reasonably foreseeable risks incident to the proposed diagnosis or treatment; and
  2. the physician departed from this standard by not disclosing this information to the patient; and
  3. had all the reasonably foreseeable risks been disclosed to the patient, as well as the risks of failing to proceed with the proposed treatment, the plaintiff would not have consented to the proposed … treatment; and
  4. because the treatment proceeded without the informed consent of the patient, the patient was injured thereby; and
  5. the injury to the patient is measurably more significant than the injury that would have occurred if the patient had been fully informed and had chosen to prevent the treatment or diagnosis by refusing to consent.

All Treatment Covered

In Virginia, informed consent is required for all medical procedures, including surgeries, diagnostic tests, and medication administration. To be considered informed, a patient’s consent must be voluntary, meaning that the patient must not be under duress or coercion when making the decision. The patient must also be competent, meaning that the patient can understand the information provided and make an informed decision.

Exception to Informed Consent Requirement

There are several exceptions to the requirement for informed consent in Virginia. The most significant exception is emergencies where the patient cannot provide consent or the doctor reasonably believes that seeking consent would significantly harm the patient’s health. In these situations, the healthcare provider may provide treatment without obtaining informed consent, but must document the reasons for not obtaining consent and make a reasonable effort to obtain consent as soon as possible.

Expert Witness Requirement

To prove medical malpractice in Virginia, like most states, you must have the testimony of a qualified expert witness. This expert must be a healthcare provider who practices in the same field as the defendant and who can testify that the defendant breached the standard of care and that the breach caused the plaintiff’s injuries.

Contributory Negligence in Virginia Malpractice Claims

In Virginia, the doctrine of contributory negligence is applied in medical malpractice lawsuits.  In most malpractice suits, the plaintiff’s negligence is not at issue.  But if a Virginia plaintiff is found to have contributed to their own injuries in any way, they are barred from recovering any damages. In other words, if the plaintiff is deemed to have played a role in causing their own harm, they are not entitled to any compensation.

For example, if a patient fails to follow post-operative instructions provided by their doctor and, as a result, suffers additional harm, they may be found to have contributed to their own injuries. If this happens, the patient would be barred from recovering damages in a medical malpractice lawsuit.

But this does not apply to the plaintiff’s conduct unrelated to the care.  So if the plaintiff gets drunk and gets injured in a car accident and the surgeon makes a mistake in treating his broken leg, the doctor cannot allege the contributory negligence was being a moron and drinking and driving in the first place.

Virginia Loss of Chance Doctrine

The old malpractice law was that doctors could only be held responsible in court for their negligence if it was a substantial factor in the injury or death. Under the “loss of chance” doctrine, a doctor can be liable if his failure to diagnose reduced the patient’s chance of survival.

There is some dispute as to exactly what the loss of chance rule is in Virginia. But most commentators believe that Virginia adopted the loss of chance doctrine that holds that a plaintiff need not prove victim would have survived absent the doctor’s negligence but only that there was a chance of survival.

Litigating Medical Malpractice Cases in Virginia

Virginia is a large state geographically and has various social demographics within its various regions. The vast majority of counties in Virginia are rural and not very plaintiff-friendly. However, three big regions in Virginia are very plaintiff-friendly, and these three metro areas account for most of the state’s population.

The three plaintiff-friendly areas in Virginia are: (1) Northern Virginia outside of DC, (2) Richmond, and (2) the Norfolk area. Northern Virginia refers to the areas just across the Potomac River from Washington, DC, which includes Fairfax County, Arlington, and Alexandria. Richmond is in Henrico County. Most of the medical malpractice cases in Virginia are filed in these three regions, partly because they account for such a large portion of the population.

Contact Us About Virginia Medical Malpractice

If you have a potential medical malpractice case in Virginia, call our attorneys today at 800-553-8082 or get a free online consultation.

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