2.1 Theories of Recovery

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

2.1 THEORIES OF RECOVERY

There are many theories of recovery for medical malpractice. Virginia's Medical Malpractice Act (the Act) defines malpractice as "any tort action or breach of contract action for personal injuries or wrongful death, based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient." ¹ Thus, regardless of the specific theory of negligence, any action sounding in tort or a breach of a contractual duty that falls within the statutory definition is a medical malpractice action. ² This is true whether a claim is brought under the Wrongful Death Act, ³ the Virginia Tort Claims Act, ⁴ the Federal Tort Claims Act, ⁵ or the Emergency Medical Treatment and Active Labor Act (EMTALA). ⁶ Claims arising under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) are also "medical malpractice" actions under Virginia law but are governed by...