Things to Know About Filing a Medical Malpractice Claim in Fairfax

If you have been injured due to the negligence of a doctor, hospital, or other medical facility you may have a claim for compensation. However before filing, here are four important things you should know according to a Fairfax medical malpractice lawyer.

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#1 Generally You Only Have 2 Years To File a Claim

The first thing someone thinking of filing a medical malpractice claim should keep in mind is that there is a statute of limitations governing their claim which generally going to be two years from the date that the cause of action occurs.

Unlike other jurisdictions, Virginia does not have a discovery rule where the statue of limitations starts when the patient learns they were injured. In Virginia, it is actually two years from the date of harm which is usually when the care is actually rendered. With that said there are certain cases where you may still file a claim past the date if the harm does not occur. For example, if a sponge is left in someone’s body, swelling or irritation may not occur for several days. As a result it can be argued that the cause of action did not occur until the body began to react to the sponge, however this is very difficult to establish with certainty.

Some other instances where there may be a way to push back the statute of limitations is if the victim is incapacitated or if the victim is receiving treatment from the same provider for the same condition. However both of theses, along with any other instances where a statue of limitations can be tolled, are going to be very fact specific cases that will not apply in every situation. As a result, making it important that a claim is brought forth as soon as possible after it occurs.

#2 Every Medical Error Isn’t Medical Malpractice

Another thing that’s important to know about medical malpractice claims is that any error doesn’t necessarily constitute malpractice and this sort of goes hand in hand with the standard of care, mistakes, and acceptable risks. In order to be malpractice, the Plaintiff has the burden to prove that the health care provider’s conduct fell below the applicable standard of care. People need to know that there are acceptable risks, certain things are just a risk that even though the state of our medical practice has gotten so much better in America over the years, there are still some harms that are just an acceptable risk that sometimes they occur even if a doctor uses the appropriate standard of care or meets the appropriate standard of care.

Understanding that there is such a thing as acceptable risk and understanding that a bad outcome doesn’t necessarily mean that malpractice occurred are things that people need to know. That’s not to discourage them from contacting attorneys but just to make sure that people know that just because you’ve been injured and you had a procedure doesn’t always mean that you will have a successful malpractice claim. However, as a patient you are entitled to make an informed decision about the risks associated with any given procedure or surgery. If you were not advised of potential risks and you would have elected not to undergo a specific procedure had you known of those risks, then the physician can be found negligent and liable for your damages. Just as with other medical malpractice actions, the failure to obtain informed consent will be weighed against the conduct of reasonably prudent practitioners in the physician’s field of specialty or practice.

#3 Medical Malpractice Claims Are Very Difficult Cases

Something else that people need to know is that medical malpractice cases are fought vigorously by the defendants and by their insurance companies. If you are entertaining bringing a medical malpractice action, you need to be prepared for a long process that will likely include some emotionally grueling things, some ups and downs, and that it will be a difficult process. While things like depositions and trial testimony can be daunting, an experienced attorney will help you to understand your role in the deposition or trial and to make sure that any concerns you have are laid to rest prior to deposition or trial.

Going to Trial

Very few cases that are filed actually go to trial, but more medical malpractice cases go to trial than most other sorts of personal injury actions. The main reason for that is that defense verdicts are more common in medical malpractice cases than they are in other types of cases, the injuries involved are often permanent or fatal resulting in higher stakes, and  physicians have a lot to lose if they are found to have been negligent in their practice. With more at stake, medical malpractice cases are vigorously defended. So, people need to be prepared for a long process and it’s a tough process.

#4 Your Life Will Be Under Examination

Another thing is that your life is going to be an open book. If you bring a medical malpractice case, in most cases your life is an open book and that means your social media pages are going to be under scrutiny, that means your prior medical records are going to be up for grabs for the defense to access those, and it is likely that you might feel like you are being blamed for what happened to you. You need to be able to find a lawyer you trust and who you’re comfortable working with because it’s going to be a long process, so you need to be prepared for that.

What Makes Fairfax Unique For Medical Malpractice Claims?

Well, Fairfax is unique in a few ways. One thing is that lawsuits in the circuit court in Fairfax move more quickly in than they do in most other jurisdictions in Virginia. It’s important to make sure that  if your lawyer files a lawsuit in Fairfax that you are responsive to their requests, because things move more quickly.

Another thing in Fairfax is that there are typically very well-qualified defense firms that handle medical malpractice cases almost exclusively. So, it’s going to be a hard fought litigation process in Fairfax while most medical malpractice cases are always toughly litigated, they’re defended almost even more strongly in Fairfax. This makes it all the more important that you are comfortable with your lawyer in a Fairfax medical malpractice case.