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 procedures and standards of proof outside of the Virginia Medical Malpractice Act. ⁷

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Notes:

^[1] Va. Code § 8.01-581.1.

^[2] See, e.g., Alcoy v. Valley Nursing Homes, Inc., 272 Va. 37, 630 S.E.2d 301 (2006) (discussing factors important to the determination of whether a specific tort allegations falls within the Act); Hagan v. Antonio, 240 Va. 347, 397 S.E.2d 810 (1990) (holding that assault and battery and intentional infliction of emotional distress are torts, qualifying as "any" tort under the Medical Malpractice Act); Pierce v. Caday, 244 Va. 285, 422 S.E.2d 371 (1992) (holding breach of confidentiality is a tort and would come under the Act); Power v. Arlington Hosp. Ass'n, 42 F.3d 851 (4th Cir. 1994) (holding that a cause of action under EMTALA is covered by the Act).

^[3] Va. Code § 8.01-50 et seq.

^[4] Va. Code § 8.01-195.1 et seq.

^[5] 28 U.S.C. § 1346.

^[6] 42 U.S.C. § 1395dd of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). In EMTALA cases arising in Virginia, substantive Virginia medical malpractice law applies, but procedural law under the Act does not apply. See Smith v. Richmond Mem'l Hosp., 243 Va. 445, 416 S.E.2d 689, cert. denied, 506 U.S. 967 (1992); Power, 42 F.3d 851.

^[7] COBRA causes of action are beyond the scope of this book.