19.2 Statutes of Limitations

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

19.2 STATUTES OF LIMITATIONS

19.201 Personal Injury. ³²

A. General Rule. The statute of limitations on personal injury cases is two years from the date of the incident, ³³ unless the injured party is a minor, in which case the statute of limitations is two years from the date of

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the minor's eighteenth birthday. ³⁴ Generally, an action accrues and the limitation period begins to run from the date the injury is sustained. ³⁵

B. Exceptions. Exceptions to the two-year limit include (i) the foreign object exception for medical malpractice cases, for which the statute of limitations allows one year from the date the object is discovered or reasonably should have been discovered ³⁶ and (ii) the discovery of injury was prevented by fraud, concealment, or intentional misrepresentation, for which the statute of limitations allows one year from the date the injury is discovered or, by the exercise of due diligence, reasonably should have been discovered. ³⁷

In 2008, the General Assembly passed legislation creating a third exception, changing the limitations period for the negligent failure to diagnose a malignant tumor or cancer. ³⁸ For acts or omissions that occur on or after July 1, 2008, the limitations period is one year from the date that the presence of the malignant tumor or cancer is communicated to the patient. ³⁹ For underlying acts or omissions occurring before July 1, 2008, the previous statute of limitations applies. ⁴⁰ In 2016 the General Assembly added negligent failure to diagnose intracranial, intraspinal, or spinal schwannoma to the exception. ⁴¹

None of these exceptions will apply to extend the limitations period beyond 10 years from the date the cause of action accrues, except that Va. Code § 8.01-229(A)(2) will toll the statute of limitations for an action brought by or on behalf of a person under a disability. ⁴²

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19.202 Wrongful Death. ⁴³

A. In General. If a person entitled to bring a personal injury action dies as a result of the injury with no action pending within two years after the action accrues, then an action under Va. Code § 8.01-50 (death by wrongful act) may be commenced within two years after the death of the injured person. ⁴⁴

B. Death of the Plaintiff. If an injured person dies before the expiration of the statute of limitations, then the action may be commenced by the personal representative of that person before the statute runs or within one year of qualification as personal representative, whichever occurs later. ⁴⁵

C. Death of the Defendant. If a potential defendant dies before the commencement of the action and before the expiration of the limitation period, a claim may be filed against the decedent's estate or an action may be commenced against the decedent's personal representative before the expiration of the limitation period or within one year of the qualification of the personal representative, whichever occurs later. ⁴⁶

If the cause of action accrues after the potential defendant's death, an action may be brought against that person's personal representative, or a claim may be filed against that...