Filing Medical Malpractice Claims in Virginia
If you or a loved one has been harmed as the result of medical malpractice where a doctor or medical facility may be at fault, you may have many questions about what your next step should be, and how long you have to file a claim.
Contact an experienced injury attorney who can explain how filing medical malpractice claims in Virginia works, and can walk you through the process.
How a Doctor Can Be At Fault
Doctors are trained in their specific field, and their training is comprehensive and rigorous. With their qualifications and the amount of training they have done, it is assumed that they will know what to do and what not to do when treating patients. This includes both taking action and not taking action and it is difficult to prove after the fact.
When a doctor does not draw on this knowledge and does something that goes against their training, it is considered negligent. This includes both taking action and not taking action and it is difficult to prove after the fact.
IIt is the doctor’s job to go back and determine what happened and document, the diagnoses, or failure to make a diagnosis, patients rely upon that.
In their training, doctors are taught what to look for and they are taught how to advise things in a certain protocol and what is called elimination diagnosis in which they look for certain things and eliminate things that are not that and when they fail to follow their training with the facts presented to them, they can be held liable for that misdiagnosis.
Statute of Limitations in Virginia
Like most personal injury actions, the statute of limitations for medical malpractice in Virginia is generally two years. There are some factors that may increase that statute of limitations slightly. This does not apply in all cases to minors, but for an adult, the statute of limitations is two years from the date a person was injured.
When filing medical malpractice claims in Virginia, time is still of the essence. While that may seem like a long period of time, if the person needs to recover after that injury, those two years can go by really fast, especially when investigation needs to occur and medical experts need to be contacted.
Process of Filing a Claim
Filing medical malpractice claims in Virginia typically occurs in the local circuit court that has jurisdiction over the case. A medical malpractice action may look like any other action, but it also may include certain required provisions like a certification that an independent medical examiner has evaluated and determined that it is a case of medical malpractice.
Medical malpractice compared to other causes of action is a creature of statute. What that means is that in common law there is no action for medical malpractice. This is the opposite of other common law issues, such as the traditional tort, assault and battery, destruction of property, and breach of contract. All of these are underneath the common law.
Writing a Claim
The process of writing a claim is both simple and complex. In general, a complaint will say who the involved parties are, what jurisdiction the court has over them, and what the causes of the action may be.
The causes of action in Virginia are required to put a defendant on notice, specifically what the plaintiffs are claiming and why they are claiming it.
While the Virginia plea standard is not quite as intensive as the federal formal standard, there is a heightened pleading standard in Virginia for certain causes of action.
Specifically, in medical malpractice actions, the attorneys must show that the pleading meets the specific statutory requirements.
What Must Be Included in a Claim in Order for it to be Valid?
Every state has different laws as it pertains to medical malpractice and Virginia is different from other states in that regard.Virginia’s specific statute requirements can be found in the Virginia Code and a Virginia medical malpractice attorney will understand this and what must be pled.
A medical malpractice claim must be independently evaluated by an expert to determine its veracity and whether it is certified by an independent medical examiner to ensure that the expert nature of the claims are met.
In addition, it must contain other certain information required by statute, including who, what, where of the standard of care as well as how it was breached.
Client Involvement in the Claim Filing Process
Generally, the claim-filing process is going to include a review of the factual nature of the claim to make sure that what the client told the attorney and how the attorney has translated it into a cause of action are on the same page.
It is important to have a client thoroughly review the claim to make sure that their attorney does not make an inadvertent statement in the course of the claim.
A common expression is that attorneys are bound by their pleading, meaning they plead to one thing, but argue another then they undermine the potential strength of their lawsuit.
Importance of an Attorney
Virginia malpractice attorneys will have the most experience filing medical malpractice claims in Virginia. They will understand what must be filed, how it must be filed, what must be pled, and how it must be pled in Virginia.
A lawyer can also help you work with medical experts, help you determine what must be proven and how it must be pled, and work through the discovery process once the case gets that far. Filing the complaint is just one step towards a successful medical malpractice action. An attorney who is experienced in this area can help at every step of the way.
