Do we have a case Medical Malpractice?

[Travis Crane]

Jurisdiction

Virginia

My wife had surgery to remove all of her gallbladder in 2014. Couple days after the surgery she went back to the ER complaining of severe pain and was told everything was fine by the same surgeon. 2 weeks ago my wife had severe pain in her side and back so she went to the ER and was told she has gallstones and to follow up with her a surgeon. She came back to the ER that same day still having the pain and they did a ultrasound and said she has stones in her gallbladder. We told them she had her gallbladder removed and they argued with us saying the scans show she still has a gallbladder or something that looks like one holding the stones causing all the pain and suffering. They did an MRI and it appeared to them she still had a gallbladder but they would not know until they did surgery to see. They did the surgery and they claim the surgeon did a partial removal and left a remnant which stones got in which caused it to swell and caused all the pain. Do we have any case here for something?

 

[Zigner]

It's quite possible that your wife's surgery was a partial cholecystectomy (a partial gall bladder removal) and not a full removal. If that's the case, then what your wife is experiencing is a known possible side effect. She'll want to have her records reviewed by a local medical malpractice attorney (several, actually).

EDIT: It's also possible that the surgeon had to shift gears during the surgery. This should all have been explained both pre- and post-op.

 

[Travis Crane]

It's quite possible that your wife's surgery was a partial cholecystectomy (a partial gall bladder removal) and not a full removal. If that's the case, then what your wife is experiencing is a known possible side effect. She'll want to have her records reviewed by a local medical malpractice attorney (several, actually).

Yeah she was told it was a full not a partial. Thanks for the info!

 

[Zigner]

Yeah she was told it was a full not a partial. Thanks for the info!

It was six to seven years ago - the records need to be reviewed instead of relying on memory.

 

[Travis Crane]

It was six to seven years ago - the records need to be reviewed instead of relying on memory.

The surgeon who did it this last time said there were no notes left or anything signaling a partial. He was from the same surgical group and all done in the same hospital group sentara. I am waiting for a law group to reach out to me just wanted to get some opinions. Thanks again

 

[army judge]

Do we have any case here for something?

My wife had surgery to remove all of her gallbladder in 2014.

Question
What is the Virginia statute of limitations for a medical malpractice lawsuit?

Answer
First, some background for readers who aren't fluent in the language of "legalese." A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit after you have suffered some type of loss or injury.

Virginia's standard statute of limitations for a medical malpractice lawsuit is the same as the overall rule that applies to most types of lawsuits for injury, which can be found at Code of Virginia section 8.01-243.
§ 8.01-243. Personal action for injury to person or property generally; extension in actions for malpractice against health care provider
This rule specifies that the case "shall be brought within two years after the cause of action accrues" -- which means two years from the date on which the health care provider committed the alleged malpractice.

Section 8.01-243 sets out special exceptions to this two-year deadline for medical malpractice cases where a foreign object was left in a patient, and where "fraud, concealment or intentional misrepresentation prevented discovery of the injury within the two-year period." In those situations, the filing deadline is "one year from the date the injury is discovered or, by the exercise of due diligence, reasonably should have been discovered." Keep in mind that if you are relying on this "discovery rule," as the plaintiff you have the burden of proving that you did not discover right away that the medical error occurred, and that you could not have reasonably discovered the malpractice until you actually did.

Virginia's statute of limitations also spells out a rule for medical malpractice claims involving "negligent failure to diagnose a malignant tumor" or certain forms of cancer. In these cases, the lawsuit filing deadline is extended for a period of one year from the date on which a correct diagnosis is "communicated to the patient by a health care provider."

There is a larger catch-all filing deadline for medical malpractice lawsuits in Virginia, which says that these kinds of cases cannot be filed "beyond ten years from the date the cause of action accrues." This is known as a "statute of repose," and it means that no lawsuit can be filed if more than ten years have passed since the malpractice occurred. The only exception is for cases where the patient was under a legal disability at the time the underlying malpractice occurred (the patient was under 18 or legally incapacitated, for example), and that disability continues beyond the 10-year timeframe.

Finally, remember that if Virginia's statute of limitations deadline has passed, and you try to file your lawsuit anyway, the health care provider you're trying to sue will ask the court to dismiss the case as time-barred. If the court grants the request (which is a near certainty), that will be the end of your lawsuit. So it's imperative that you pay attention to the filing deadline. Learn more about the Statute of Limitations in a Medical Malpractice Case Medical Malpractice Lawsuits and the Statute of Limitations .

by: David Goguen, J.D.


What Is the Virginia Statute of Limitations for a Medical Malpractice Lawsuit?

 

[zddoodah]

Do we have any case here for something?

Unlikely.

First, in Virginia, a lawsuit for medical malpractice (or any other personal injury) "shall be brought within two years after the cause of action accrues." Virginia Code section 8.01-243(A). A cause of action accrues when all elements of the cause of action have occurred. In the case of medical malpractice (which is simply negligence committed by a medical professional), the cause of action accrues once the duty of care exists and has been breached and the breach is the actual and proximate cause of damages. In your wife's case, that happened a "[c]ouple days after the surgery" that occurred in 2014.

Your wife would have to argue that the statute of limitations is extended under section 8.01-243(C)(2) based on "fraud, concealment, or intentional misrepresentation [which] prevented discovery of the injury within the two-year period." However, the extension available under that sub-section is only "one year from the date the injury is discovered or, by the exercise of due diligence, reasonably should have been discovered." Your wife could argue that she did not discover and could not reasonably have discovered the injury until the recent events you described, which would give her another 11 months or so to sue. Of course, the defendants will argue that she should have discovered the alleged injury earlier, and litigation would likely focus on that issue. In that regard, you mentioned sever pain shortly after the initial surgery and a couple weeks ago. Was there NOTHING in the intervening seven years?

Second, it does not appear that your wife has damages significant enough to justify a lawyer taking a potentially flawed case on contingency. There's certainly damages based on a second surgery that apparently shouldn't have been necessary and some pain and suffering, but it may not be enough for a lawyer to take a risk on a contingent fee case.

By all means, seek out a consultation with a local attorney. I am neither a medmal lawyer nor admitted in Virginia.

 

[Redemptionman]

Yeah, but are you guys or gals sure it doesn't start with the 2 year time limit once the questionable procedure is discovered? Sometimes states will allow these causes from the time period the questionable surgery was performed.