Statutes of Limitations

All medical malpractice actions for personal injury must be brought within two years from the date the cause of action accrued. Va. Code Ann. § 8.01-243 (Michie 1992). In foreign object cases and cases of fraud or concealment, the statute is extended to one year from the date the object or injury is discovered or reasonably should have been discovered. Id. The discovery extension is subject to a ten-year limit from the time the cause of action accrued. Id.

Wrongful death actions must be brought within two years of death. Va. Code Ann. § 8.01-244 (Michie 1992). The tolling provision of the Virginia Medical Malpractice Act applies to the two-year limitations contained in the Virginia Wrongful Death Act. Wertz v. Grubbs, 245 Va. 67, 425 S.E.2d 500 (1993).

Minors' medical malpractice actions accruing after July 1, 1987, based on either personal injury or death, must be commenced within two years from the date of the last act of negligence, unless the child is under eight years of age, in which case the action must be brought by the child's tenth birthday unless the discovery provision applies. Va. Code Ann. § 8.01-243.1 (Michie 1992). If the claimant is incapacitated, the statute of limitations will be tolled, except where a guardian or committee is appointed to represent the individual, in which case a one-year limitation period will apply. Va. Code Ann. § 8.01-229 (Michie Supp. 1997).

Contributory or Comparative Negligence

Virginia applies the doctrine of contributory negligence, whereby the negligence of the claimant bars recovery. Va. Sup. Ct. Rule 3:16 (Michie Supp. 1997).

Joint and Several Liability

Virginia imposes joint and several liability on joint tortfeasors. Va. Code Ann. § 8.01-443 (Michie 1992). Thus, any joint tortfeasor against whom a judgment is entered is liable to the claimant for the entire judgment, regardless of the tortfeasor's share of fault.

Contribution

Joint tortfeasors generally have a right to contribution in Virginia. Va. Code Ann. § 8.01-34 (Michie 1992). A settling tortfeasor is discharged from all liability for contribution, but the settlement will not discharge any other tortfeasor from liability for the injury. Va. Code Ann. § 8.01-35.1 (Michie 1992). Also, a settling tortfeasor is not entitled to contribution. Id.

Vicarious Liability

Virginia has not imposed liability on hospitals for the negligence of their non-employed physicians.

Expert Testimony

Virginia requires that claims of medical malpractice be supported by the testimony of an expert witness, or one who is qualified to testify to the standard of care in that community. Va. Code Ann. § 8.01-581.20 (Michie 1992). Any physician who is licensed to practice in Virginia is presumed to be a qualified expert. Id. However, the physician must have had an active clinical practice in the field about which he will testify within one year of the date of the incident. Id.

Damage Caps

Virginia imposes a $1,000,000 damage cap on recoveries for bodily injury or death in medical malpractice cases. Va. Code Ann. § 8.01-581.15 (Michie 1992). The damage cap does not violate the U.S. or Virginia Constitutions. Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989). A single cap applies to an injury, regardless of the number of theories or defendants. Fairfax Hospital System v. Nevitt, 249 Va. 591, 457 S.E.2d 10 (1995). Plaintiffs have found a loophole, however, for cases that arose prior to a 1994 amendment of the definition of the term "health care provider." Va. Code Ann. § 8.01-581.1 (Michie Supp. 1997). In Schwartz v. Brownlee, 253 Va. 159, 482 S.E.2d 827 (1997), the Virginia Supreme Court affirmed a judgment rendered jointly against a physician and his professional corporation, which leased his offices, handled billing, and paid him a salary. It then held that damage cap did not apply to the corporation.

Virginia limits punitive damages to $350,000. Va. Code Ann. § 8.01-38.1 (Michie 1992). This cap is also constitutional. Wackenhut Applied Technologies Center v. Sygnetron Protection Systems, 979 F.2d 980 (4th Cir. 1992).

Statutory Cap on Attorneys' Fees

Virginia does not place a cap on attorneys' fees in medical malpractice actions.

Periodic Payments

Periodic payments or structured settlements are allowed in Virginia; however, there is no statutory requirement for the periodic payment of personal injury claims. A settlement agreement on behalf of a disabled person involving periodic payments must be reviewed by the court and secured by a bond or insurance. Va. Code Ann. § 8.01-424 (Michie Supp. 1997).

Collateral Source Rule

Virginia courts apply the collateral source rule in tort cases, so a claimant's receipt of collateral payments does not reduce his recovery. See Schickling v. Aspinall, 235 Va. 472, 369 S.E.2d 172 (1988).

Pre-Judgment Interest

There is no statutory provision specifically allowing the assessment of pre-judgment interest, but a court may grant pre- judgment interest at its discretion. Marks v. Sanzo, 231 Va. 350, 345 S.E.2d 263 (1986). However, since the courts must base this interest on easily calculated losses, it is doubtful a court would grant pre-judgment interest in a personal injury action.

Patient Compensation Funds and Physician Insurance

Virginia does not have a general patient compensation fund covering all medical malpractice claims. However, in 1987, the Virginia legislature passed the Birth-Related Neurological Injury Compensation Act. Va. Code Ann. §§ 38.2-5000 to 38.2- 5021 (Michie 1994 & Supp. 1997). The act provides the exclusive right of recovery for infants suffering from birth-related neurological injury. Va. Code Ann. § 38.2-5002 (Michie 1994). The fund provides for lifetime medical expenses as well as one-half of the Virginia average weekly wage after the child reaches age eighteen. Va. Code Ann. § 38.2-5009 (Michie 1994). To qualify for assistance, the claimant's physician and the hospital wherein the infant was delivered must participate in the program by paying an assessment. Va. Code Ann. § 38.2-5001 (Michie 1994). In addition, the infant must be permanently disabled (i.e., non-ambulatory, aphasic, incontinent, and requiring constant attendant care). Id.

Immunities

For actions accruing after July 1, 1982, Virginia has waived its immunity and is liable for all claims of damage from personal injury or death. Va. Code Ann. § 8.01-195.3 (Michie Supp. 1997). However, the statute limits Virginia's liability for claims accruing prior to July 1, 1988, to $25,000 or the maximum limits of any liability insurance purchased by the state, and $75,000 for causes of action accruing after July 1, 1988. Id. Also, no judgment against the state may include pre-judgment interest or punitive damages. Id. The general statute waiving immunity for the state of Virginia is not applicable to counties, cities, or towns. However, a claimant can bring an action against a city, county, or municipality if notice is given to the local entity within six months of the date of injury. Va. Code Ann. § 8.01-222 (Michie 1992). Notice requirements which had applied to actions against the state are no longer in effect. A governmental entity's purchase of insurance will not waive its sovereign immunity. Mann v. County Board of Arlington County, 199 Va. 169, 98 S.E.2d 515 (1957).

Virginia has eliminated the charitable immunity doctrine except in cases where a hospital renders exclusively charitable medical services, or where the claimant was accepted as a patient by the institution under an express written agreement providing that all medical services would be supplied on a charitable basis. Va. Code Ann. § 8.01-38 (Michie 1992). Also, a hospital which is considered a charitable institution under the Internal Revenue Code and which carries $500,000 in liability insurance is immune from liability for damages in excess of that limit. Id.

Arbitration

The Virginia Medical Malpractice Act established a system of medical malpractice review panels to assess the validity of medical malpractice claims. A claimant must file notice of the claim with the court. The Supreme Court of Virginia then appoints a panel to review the claim. Va. Code Ann. § 8.01-581.2 (Michie Supp. 1997).

After hearing the evidence, the panel determines whether the evidence supports the conclusion that the health care provider failed to comply with the relevant standard of care and whether that failure proximately caused the injury. Va. Code Ann. § 8.01-581.7 (Michie Supp. 1997). The findings of the panel are non-binding and the claimant has the option of filing a lawsuit after the panel has made its ruling. However, any opinion of the medical review panel is admissible as evidence in a subsequent action. Both parties have the right to call panel members, except the chairman, as witnesses. Va. Code Ann. § 8.01-581.8 (Michie Supp. 1997).

A new amendment to the act, effective January 1, 1998, lets the parties agree in advance of treatment to binding arbitration of any claim, so long as the patient has the option to withdraw from the agreement within 60 days after the termination of treatment. Va. Code Ann. § 8.01-581.12 (Michie Supp. 1997).