sured has agreed to reimburse the plan and whether the plan is self-funded. The scope of self-funded plans is beyond the scope of this article, but see FMC Corp. v. Holliday, 498 U.S. 52 (1990) for a discussion of self-funded plans. Statute of Limitations In general, the statute of limitations
is two (2) years for both wrongful death and personal injury matters.31
be extended as Virginia recognizes the continuing treatment rule, although the facts of your case will have a great deal to do with its application.32
This can This means
the two year period starts to run from the last day of treatment during a con- tinuous and substantially uninterrupted course of treatment.33
The statute also
extends the statute of limitations for for- eign objects, fraud, and concealment.34 In medical malpractice cases, minors must bring suit within two (2) years unless the child is under age eight (8) at the time of the injury. If under age 8, the minor has until age 10 to bring the suit.35
The parents’ claim for medical
expenses must be brought within five (5) years.36
Neurological Injury Compensation Act
Virginia has a Birth-Related Neuro-
logical Injury Compensation Act (“the Act”) which protects “participating pro- viders” from birth related injuries caused by oxygen deprivation or mechanical injuries.37
The Act is an exclusive remedy
for a child who meets the statutory defi- nition set forth in the Act. If you have a potential birth injury case, the first thing you must do is determine whether the
31 Virginia Code § 8.01-244. 32
Farley v. Goode, 219 Va. 969, 252 S.E. 2d 594 (1979). Also see Miller v. United States, 932 F.2d 301 (4th
Cir. 1991) where
the continuous treatment rule was not applied.
33
Farley v. Goode, 219 Va. 969, 252 S.E. 2d 594 (1979).
34 Virginia Code § 8.01-243 C. 35 Virginia Code § 8.01-243.1.
36
Virginia Code § 8.01-243 (B); Perez v. Es- pinola, 749 F. Supp. 732 (E.D. Va. 1990): 37 Virginia Code § 38.2-5001 et. seq.
Fall 2008 Trial Reporter
Because the laws applicable to wrongful death and perma- nent injury action in Maryland, the District of Columbia and Virginia vary widely, a review of the applicable statutes, jury instructions, and case law are essential to successfully prosecuting an action.
defendant is a “participating provider and whether the facts qualify your client for compensations from the Fund.”
Damage Caps Virginia has no caps for wrongful
death cases but has imposed a cap for medical malpractice actions. The cap for medical malpractice actions as of July 1, 2008, is $2 million.38
Conclusion Because the laws applicable to wrong-
ful death and permanent injury action in Maryland, the District of Columbia and Virginia vary widely, a review of the applicable statutes, jury instructions, and case law are essential to successfully prosecuting an action. This article has
reviewed some basic law in each jurisdic- tion, and my hope is that it has given you a place to start your research. n
About the Author
Karl Protil practice consists of personal injury litigation, with an emphasis on medical malpractice and claims against the federal government. He has extensive experience before federal courts through the United States and in state trial courts in Maryland, Virginia and the District of Columbia. He is particularly active in cases involving brain damage to infants during birth. Prior to joining Shulman Rogers, Mr.
Protil spent six years in the Army Judge Advocate General’s Corps and a year with Medical Mutual Liability Insurance Society of Maryland.
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