Clear Answers to Medical Malpractice FAQs

• What are the risks of medical procedures?
• How can I find out if a doctor has ever been disciplined by the Virginia Board of Medicine or whether the doctor has paid a medical malpractice settlement?
• Do I need to have an expert witness certify that the case has merit prior to serving a medical malpractice lawsuit?
• Do I have a good medical malpractice case?
• How much can I recover for my injuries in a medical malpractice case? In other words, what is the medical malpractice cap in Virginia?
• I have a very bad result from a medical event. Does that mean that I have a case?
• What are medication errors?
• What is the average medical cost of a retained foreign object?
• What is the mortality rate for unintended retained foreign objects?
• What is the "standard of care"?
• What is the statute of limitations for a retained foreign object?
• What must I prove in my case?
• Why has Medicare designated retained foreign objects as "never events?"
• Will my medical malpractice case settle?
• What is a statute of limitation?

Q: What are the risks of medical procedures?

A: Most medical procedures carry risks of an injury even when the procedure is performed correctly. A healthcare provider is not responsible for an injury that is a known risk of the procedure IF the healthcare provider was careful and took reasonable steps to prevent injuries.

When a doctor fails to take appropriate steps to minimize the risks of the procedure, the doctor may be legally responsible for the patient's injuries. Additionally a doctor has a duty to properly inform a patient about the risks of a procedure and obtain the patient's informed consent before the procedure. This includes discussing the treatment alternatives with the patient.

A doctor can be liable for a patient's injuries if he or she does not appropriately advise the patient of the alternatives, risks, and complications before performing a procedure.

Q: How can I find out if a doctor has ever been disciplined by the Virginia Board of Medicine or whether the doctor has paid a medical malpractice settlement?

A: The Virginia Board of Medicine has a free website that is searchable by doctor. The website provides a wealth of useful information including whether the doctor has ever been disciplined and whether the doctor has had a medical malpractice settlement in the past ten years. 

Additionally the website provides information on how you can file a complaint against a medical doctor, chiropractor, podiatrist, or osteopath. If the Virginia Board of Medicine believes that the complaint may have merit it will conduct and investigation that can include reviewing the medical records, interviewing the doctor, and conducting a hearing. Sanctions range from a reprimand to revocation of the physician's license to practice medicine.

Q: Do I need to have an expert witness certify that the case has merit prior to serving a medical malpractice lawsuit?

A: In most medical malpractice cases, the plaintiff must have a certificate of merit from a qualified expert that the defendant doctor, hospital, nursing home, etc, breached the standard of care and that the breach of the standard of care caused the claimed injury or the patient's death. The plaintiff must have a certificate of merit prior to requesting service of the lawsuit upon the defendant health care provider.

A certificate of merit is not required when the plaintiff has a good faith belief that expert testimony is not necessary because the defendant's negligence clearly lies within the jury's common knowledge and experience. This is called the "common knowledge exception." The common knowledge exception rarely applies, but it exists in law to permit a plaintiff to pursue smaller cases that can easily be understood by the jury without expert testimony. Examples include operating on the wrong part of the body, removing the wrong tooth, committing a battery on the patient, leaving a foreign object like a sponge in a patient, and administering a medication to the wrong patient.

In 2013, the law was modified to permit a judge to inspect the certificate of merit to ensure that it complies with the law upon a showing of good cause.

With the requirement that a plaintiff usually has to obtain a certificate of merit, it is very important that victims of medical malpractice hire an attorney promptly so the attorney will have ample time to thoroughly investigate the case and obtain the necessary expert certification. For more information about filing certificates of merit, please read the "Medical Malpractice Legislation Update" in our Library authored by attorney Josh Silverman.

Q: Do I have a good medical malpractice case?

A: One of the most frequently asked questions my new clients ask is "do I have a good case?" It is very difficult and frankly misleading to make a determination of the strengths of the case prior to conducting a full investigation. Generally speaking, most cases have facts which "cut both ways," meaning that there are facts which also help the health care provider defend the claim.

There are some straightforward cases. For example, I have handled cases involving patients receiving the wrong medication or medications at an incorrect dosage, patients who have had surgical sponges left in their bodies, and patients injured when the surgeon operated on the wrong part of the body. Yet even in those cases, the health care providers made a vigorous, albeit unsuccessful, defense.

Except in unusual circumstances, under Virginia law, expert testimony is required to prove a medical malpractice case. Therefore, the strength of the case depends upon the facts that will be in evidence and the testimony of the expert witnesses. Even "good" cases can be lost if the jury tends to believe the version of the facts presented by the defendant health care provider. Nevertheless, after a potential case has been closely evaluated, I may be able to provide an opinion regarding the strengths and weaknesses of a case and its probability of success in litigation.

Q: How much can I recover for my injuries in a medical malpractice case? In other words, what is the medical malpractice cap in Virginia?

A: Virginia imposes a damages cap on all recoveries for bodily injury or death in medical malpractice cases. The medical malpractice cap is determined by the date the malpractice was committed. For an injury that occurs due to malpractice between July 1, 2008 and June 30, 2012, the plaintiff can recover up to $2,000,000. Starting July 1, 2012, the maximum amount that may be recovered increases by $50,000 per year until the medical malpractice cap reaches $3,000,000 on July 1, 2031.

Va. Code § 8.01-581.15.

Virginia also imposes a limit on the amount of punitive damages that can be recovered. Punitive damages are recoverable in the rare case that the defendant engaged in willful and wanton conduct (i.e. really bad conduct). Punitive damages are capped at three hundred fifty thousand dollars ($350,000.00). Va. Code § 8.01-38.1. In medical malpractice cases, the punitive damages recovery must be contained within the medical malpractice cap. In other words, the damage caps set forth above represent the maximum recovery even if punitive damages are awarded in addition to compensatory damages.

The Virginia medical malpractice cap is arbitrary and unfair, but unfortunately it is the law in Virginia. It means some people do not obtain a full recovery for their injuries. The Silverman Law Firm supports the Virginia Trial Lawyers Associations efforts to raise the medical malpractice cap in the legislature and to fight it in court.

Q: I have a very bad result from a medical event. Does that mean that I have a case?

A: Josh Silverman can only accept a case if there is a bad result because it is necessary in every case to prove that the medical error causes an injury. However, having a very bad result does not mean that malpractice was committed. A bad result can happen even if the doctor or other health care provider complied with the standard of care. The only way to determine whether a bad result is due to malpractice is by close examination of the facts, which usually requires review of the appropriate medical records and consultation with an expert. In a case against a nursing home or assisted living facility, Josh will usually hire an qualified nurse expert. Cases against doctors require a doctor in the same specialty as the doctor who is suspected of committing malpractice.

In most cases, Virginia law requires a plaintiff to have certificate from an expert that the defendant breached the standard of care and caused the claimed injury before the plaintiff serves the lawsuit. Va. Code Ann. Sec. 8.01-20.1 and 8.01-50.1

Q: What are medication errors?

A: The National Coordinating Council for Medication Error Reporting and Prevention defines a medication error as "any preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in the control of the health care professional, patient, or consumer. Such events may be related to professional practice, health care products, procedures, and systems, including prescribing; order communication; product labeling, packaging, and nomenclature; compounding; dispensing; distribution; administration; education; monitoring; and use."

Josh Silverman has represented numerous clients injured due to medication errors. Examples include giving the wrong medication to patients, giving patients medication at a lethal dose, and failing to monitor the effects of the medication. Some medications like the blood thinner Coumadin, insulin, and powerful antibiotics require careful monitoring.

Medication errors are almost always due to human error. In some cases the physician makes a mistake in prescribing or ordering the medication. Examples including ordering the wrong medication or ordering the wrong dose of a medication. Other cases involve nurses who fail to follow the doctor's prescription or administer medication to the wrong patient. Due to the potency of today's medications these mistakes can cause serious injuries and even death. If you would like more information, please do not hesitate to contact us.

Q: What is the average medical cost of a retained foreign object?

A: A couple years ago a study found that the average cost of treating a retained foreign object is $50,000. As medical costs continue to skyrocket, it is likely that today the cost is well in excess of $50,000.

Q: What is the mortality rate for unintended retained foreign objects?

A: There are no conclusive studies on the mortality rate. However, the Agency for Healthcare and Research found that the average patient spent an additional four days in the hospital because of the error and fifty-seven patients died in 2000 due to retained foreign objects. With readily available technology and careful treatment by the operating room staff, these events should never happen which is why they are called "never events."

Q: What is the "standard of care"?

A: In Virginia, the "standard of care" is defined by statute. The "standard of care by which the acts or omissions [alleged malpractice] are to be judged shall be that degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth ... " Va. Code Ann. § 8.01-581.20. The specific standard of care at the time the alleged malpractice was committed is established by expert witness testimony.

Q: What is the statute of limitations for a retained foreign object?

A: Virginia has a two year statute of limitations. In the case of retained foreign objects it is extended for up to one year after the error was discovered or after the patient should have known of the error. Some retained foreign objects can go undetected for years. The statute of limitations is never extended for more than 10 years from the date of injury. Therefore you should not delay in seeking legal counsel.

Q: What must I prove in my case?

A: At trial, the plaintiff has the burden of proof. The plaintiff must prove all of the following: (1) the standard of care in effect at the time of the alleged malpractice; (2) that the defendant health care provider breached the standard of care; (3) that as a direct result of the breach(es) in the standard of care, the plaintiff was injured; and (4) what injuries (damages) were suffered as a result. If the plaintiff fails to prove any of these elements, then the Judge presiding over the trial may prevent the case from going to the jury for deliberations.

Q: Why has Medicare designated retained foreign objects as "never events?"

A: Recently Medicare has decided not to reimburse hospitals for the medical costs of removing retained foreign objects. The principle is simply that a hospital should not be compensated for a medical complication that should never have happened and occurred only because of malpractice.

Foreign objects should never be unintentionally left in the body. They are preventable by careful counting and taking reasonable steps to make sure that all of the sponges put into the body during surgery are removed before the surgeon completes the surgery. Failure to do so is almost always medical malpractice.

Q: Will my medical malpractice case settle?

A: In medical malpractice cases, it is difficult to predict whether a case will settle or go to trial. Typically, such cases are rigorously defended by very capable defense lawyers. The best settlements come from being well-prepared for trial. Those cases that do settle usually settle as we get closer to the trial date once the expert witnesses for both sides have been identified and their depositions have been taken.

You can view some of Josh Silverman's verdicts and settlements online. Due to confidentiality agreements, we are unable to list most case settlements.

Q: What is a statute of limitation?

A: A statute of limitations is an arbitrary time period that a state places on a claim, setting forth a deadline by which a claim must be filed. Unless a claim is filed within the applicable statute of limitations, there can be no legal recovery. In Virginia, all medical malpractice actions for personal injury must be filed within two years from the date the cause of action "accrues." Va. Code Ann. § 8.01-243. Simply stated, the cause of action usually "accrues" on the date that malpractice was committed.

Virginia does have a doctrine called the "continuing treatment rule" which may extend the statute of limitations period. Under the continuing treatment rule, if there has been substantially uninterrupted treatment by the defendant, then the lawsuit must be filed within two years of the date of last treatment by the defendant health care provider for the same or a related condition. If the malpractice causes death, then the wrongful death statute of limitations applies. Wrongful death actions must be filed within two years of the date of death. Va. Code Ann. § 8.01-244.

Virginia has a special statute of limitations period governing medical malpractice actions of minors. If a child is under eight years of age, suit must be commenced by the child's tenth birthday. For children eight years of age or older, suit must be commenced within two years of the date malpractice was committed. Va. Code Ann. § 8.01-243.1.

If the defendant is an agent of the Commonwealth of Virginia, such as employees of one of the teaching hospitals in Virginia, then the claim may need to be pursued under the Virginia Tort Claims Act. This Act has specific administrative requirements which must be followed for the claim to be actionable, including a mandatory notice requirement within one year of the incident. In addition, recovery under the Virginia Tort Claims Act is limited to one hundred thousand dollars ($100,000.00).

In Virginia, certain circumstances may extend the statute of limitations. These circumstances include fraud or concealment preventing discovery of the injury, incapacity of the victim and a foreign object being left in a patient without the patient's knowledge. It is best to consult an attorney as soon as you suspect you may have a case. Josh Silverman has unfortunately had to turn down many cases because the client waited too long to contact him.