Health Care Advocates’ Power Kit:
Legal Deadlines for Filing a Personal Injury Lawsuit in Virginia
By Patrick Malone
NOTE: This information is generally believed to be accurate, but consumers should always check with an attorney to make sure the law has not changed and to see if some exception might apply.
Alfred Clarke Explains the Statute of Limitations in Virginia
Here are the deadlines — also known as statutes of limitations — for filing various types of personal injury lawsuits in Virginia.
In Virginia, a claim of personal injury must be filed within two years of accrual. See Va. Code § 8.01-243.
In Virginia, “accrual,” or the time the clock starts ticking on the limitations period, is the date a person is injured, not the date that the injury is discovered. See Va. Code §8.01-230.
Exceptions and qualifiers
There are several exceptions to Virginia’s general two-year limitations period. What follows is a list of some of the more significant exceptions, but is by no means an exclusive list. For additional limitations, see the Virginia Code, specifically §8.01-228 through §8.01-256, and check with an attorney.
Cases against the Commonwealth of Virginia
A written notice statement must be sent to the Director of the Division of Risk Management or the Attorney General within one year of the injury. The notice statement should include the time and place where the injury occurred and the agency or agencies that are liable. After notice is given, a suit may be filed either upon having the claim denied by the Commonwealth or six months after filing the notice statement. The suit must be filed within eighteen months of filing the notice statement. See Va. Code § 8.01-195.6 and § 8.01-195.7.
Cases against local governments in Virginia
A written notice statement must be sent within six months of an injury if the claim is against a local government, such as a town or county. The notice letter must include the time, place, and nature of the claim. The statement must be filed with the county, city, or town attorney or with the chief executive or mayor of the county, city, or town. See Va. Code § 15.2-209.
Cases against the U.S. government
A “Form 95” must be sent to the government agency that employed the persons who caused the injury, within two years of the injury, or within two years of when you discovered you were injured. For more information on these claims, see our military malpractice information (similar for other non-military U.S. government institutions).
The standard two-year limitations period applies for filing a wrongful death claim, beginning on the date of death. See Va. Code § 8.01-244.
Malpractice against a health care provider, hospital, nursing home, etc.
The limitations period is the standardtwo years from the date of the injury. However, this period is extended in situations where a foreign object is negligently left inside a patient’s body to one year from the date the object is discovered or reasonably should have been discovered. See Va. Code § 8.01-243.
In a claim for the negligent failure to diagnose a malignant tumor or cancer, the limitations period is one yearfrom the date of the diagnosis of the tumor or cancer. This exception only applies to failures to diagnose that occurred after July 1, 2008. See Va. Code § 8.01-243.
None of the exceptions under Va. Code § 8.01-243 to the two-year statute of limitations for a medical malpractice case can extend the limitations period more than ten years from the time of injury. See Va. Code § 8.01-243.
Virginia applies the continuing treatment doctrine to determine when the limitations period begins if a patient is undergoing a course of treatment with a healthcare provider who commits malpractice. If malpractice occurs during the continuous treatment of a particular ailment or condition, the statute of limitations begins to run when the treatment by the healthcare provider for that injury or condition ends. Castillo v. Emergency Med. Associates, P.A., 372 F.3d 643 (4th Cir. 2004).
Injuries to children
If a person is under 18 years of age when the injury occurs, the lawsuit clock does not start ticking until that person’s 18th birthday, which means that in most negligence cases the deadline in Virginia is the plaintiff’s 20th birthday. See Va. Code § 8.01-229.
However, in malpractice cases there is an important exception to this rule of minority:
A malpractice claim brought on behalf of a minor against a health care provider must be brought within two years of the last act or omission causing the injury, unless the child was less than eight years old when the malpractice occurred. In that situation, the claim must be brought before the child’s tenth birthday. This rule does not apply to foreign objects or a failure to diagnosis cancer. Those injuries are governed by Va. Code § 8.01-243, regardless of the patient’s age (see above). See Va. Code § 8.01-243.1.
A parent or guardian may bring a claim for medical expenses and loss of companionship for their minor child within five years of the injury. See Va. Code § 8.01-243.
Consult with an Experienced Personal Injury Attorney
If you believe you or a family member has been seriously injured from someone else’s fault – whether from medical malpractice, a defective product, a motor vehicle collision or any other kind of accidental injury — you may want to click here to contact an experienced personal injury attorney for a free evaluation of your case. You can also email us at email@example.com or call us at 202-742-1500. We will respond within 24 hours. There is no charge for our initial consultation.