Medical Malpractice Claims in Virginia

November 17, 2014 in Articles, Personal Injury Articles | MARTIN WREN, P.C. | LEAVE A COMMENT

Virginia Personal Injury Lawyers

Medical Malpractice Claims in Virginia

According to the Inspector General for the Department of Health and Human Services, medical errors are the third leading cause of death in America, behind heart disease and cancer. That is staggering.  It shows that medical malpractice is a very real problem facing Americans.  Virginia is unfortunately not exempt from this problem, as medical errors cause injury and death here just as in every other state.

Medical malpractice claims in Virginia are a particular type of personal injury action.[i]  Just like personal injury actions based on negligence, to win a Virginia medical malpractice claim a patient must show that a doctor or other healthcare provider owes a legal duty to the patient, the doctor breached the duty, and the doctor’s breach caused harm or injuries to the patient.[ii]   These elements of a claim for medical malpractice in Virginia sound straightforward, but they often become complicated when viewed in light of a particular claim.

Because medical malpractice claims are commonly based on the negligence of physicians and healthcare providers, it might be helpful to compare a medical malpractice case to a typical personal injury case based on negligence.  A personal injury case can arise, for example, when someone driving a car disregards a red light and crashes into a pedestrian who has the right of way.  There, the driver had a duty to stop at the red light, but his breach of that duty caused injury to a pedestrian.

Medical malpractice actions are similar to, but a little different than, the red light example above.  Just like all drivers have a legal duty to stop at red lights and obey other traffic rules, doctors have a legal duty to follow certain safety rules that apply in the medical world.  The safety rules that doctors and nurses are required to follow are called “standards of care.” Depending on the type of situation a doctor faces, the standard of care requires doctors, surgeons, nurses, and other health care providers to provide care that a reasonably prudent doctor giving care in that situation would provide. Generally speaking, if a doctor provides healthcare that falls below or deviates from what a reasonable doctor would have done, the doctor will have breached the standard of care.

Establishing the Standard of Care

The plaintiff’s first challenge in a Virginia medical malpractice case is to provide evidence of what the standard of care is in their case.  That means the plaintiff must typically hire an expert witness to explain the standard of care in their case.  The expert will be required to explain what a reasonably competent doctor would have done in the situation presented by the plaintiff’s medical condition.  Except in very limited circumstances where the standard of care is understandable by a jury using common sense, a plaintiff’s failure to hire a standard of care expert may cause the case to fail.

Breach of the Standard of Care

In addition to showing what the standard of care is, a plaintiff in a medical malpractice case must show that their healthcare provider – a doctor, nurse, osteopath, surgeon, midwife, or other medical caregiver – violated that standard of care.  That means that the plaintiff must show that their medical provider either took actions that a reasonable doctor would not have taken, or failed to act in the same manner that a reasonable doctor would have.

Satisfying the standard of care does not require doctors, nurses, osteopaths or other healthcare providers to provide perfect healthcare or to guarantee that a surgery will go exactly as planned.  Rather, the standard of care establishes the minimum level of care a healthcare provider must give to a patient. If that healthcare provider meets that minimum level of care, the patient will not have a medical malpractice claim even if the patient does not obtain the results the patient desired.

As an example, the standard of care for surgeons will require that a surgeon and his or her staff remove all sponges and other foreign objects from a surgical site before closing the wound.[iii]  A surgeon will violate this standard of care when he or she leaves tools, sponges, or other items in the patient’s wound before closing the site.  If that happens, the defense doctor has most likely violated the standard of care, breached a duty, and formed the basis for a medical malpractice action in Virginia.


To get compensation for a medical malpractice injury, an injured patient must show that the healthcare provider’s breach of the standard of care caused an injury.  Using the previous example, it may be the case that a physician left a sponge inside a patient’s body and failed to remove that sponge during surgery, and it will most likely be the case that the retained object will cause the patient to develop a terrible infection.  In that case, it should not be extremely difficult for a plaintiff to prove that the retained object caused the infection.

Showing a “causal link” between the retained sponge and the injury is more difficult if the injury were, for example, a heart attack suffered by the patient after the sponge was retained.  The patient would face an uphill battle showing that the retained sponge set in motion a chain of events that caused the patient to suffer a heart attack.  That’s not to say it would be impossible, but it would certainly be considerably more difficult and the patient would need very persuasive expert witnesses to draw the connection between the retained sponge and the heart attack.


To have a medical malpractice case worth pursuing, a patient or his or her family must not just show that their doctor breached a standard of care that caused an injury, they must be able to show that the injury was significant enough to justify the stress, expense, and disruption that will a medical malpractice lawsuit will entail.  Medical malpractice lawsuits can be incredibly expensive, may take years to resolve, and oftentimes end in victory for the doctor or other healthcare providers.  Because of that uncertainty, an injured patient should consider pursuing a medical malpractice claim in Virginia when the injuries are severe enough to justify the difficulty involved.  Having a serious injury caused by medical malpractice will increase the chances of obtaining an amount of money that will justify pursuing such a claim.


If you or a loved one have suffered an injury due to medical malpractice, please contact Virginia personal injury attorney Robert E. Byrne, Jr. of MartinWren, P.C.  Our attorneys have experience handling medical malpractice cases and obtaining compensation for our clients, we offer free consultations, and we’d be happy to meet with you at a time and place that is convenient for you.  Please call Bob at (434) 817-3100 or email him at [email protected].

This article is for informational purposes only and does not constitute legal advice.


[i] Howell v. Sobhan, 278 Va. 278, 283 (2009).

[ii] Virginia’s Medical Malpractice Act defines a “health care provider” broadly to include “a person, corporation, facility or institution licensed by this Commonwealth to provide health care or professional services as a physician or hospital, dentist, pharmacist, registered nurse or licensed practical nurse or a person who holds a multistate privilege to practice such nursing under the Nurse Licensure Compact, optometrist, podiatrist, physician assistant, chiropractor, physical therapist, physical therapy assistant, clinical psychologist, clinical social worker, professional counselor, licensed marriage and family therapist, licensed dental hygienist, health maintenance organization, or emergency medical care attendant or technician who provides services on a fee basis.”  Va. Code § 8.10-581.1.  The statute reaches even further, and includes professional corporations, partnerships, nursing homes, professional limited liability companies, or other similar entities that employ or are comprised of licensed health care providers or primarily render health care services.  Id.

[iii] There may be exceptions to this rule, such as if a medical device is supposed to be surgically placed or implanted and left inside the patient’s body.

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