2.3 Statute of Limitations and the Continuing Treatment Exception

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

2.3 STATUTE OF LIMITATIONS AND THE CONTINUING TREATMENT EXCEPTION

2.301 Statute of Limitations in General. The statute of limitations for personal injuries is set out in section 8.01-243(A) of the Virginia Code and states that "[u]nless otherwise provided in this section or by other statute, every action for personal injuries, whatever the theory of recovery, and every action for damages resulting from fraud, shall be brought within two years after the cause of action accrues." ¹² The cause of action generally

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accrues at the time of injury and not when the resulting damage is discovered. ¹³

Virginia is one of the minority states that uses the "date-of-the-act" rule, which means that the plaintiff must file suit within two years of the date of the injury regardless of how obscure or undiscoverable the injury might have been. Exceptions to the two-year rule are (i) cases involving minors or legally insane people who are in law regarded as unable to know their legal rights and (ii) cases where the injury was fraudulently concealed from the person.

In 1997, the Nunnally v. Artis ¹⁴ court discussed the application of the statute of limitations. In Nunnally, the court held that, although "a legal wrong may have occurred . . . when the defendant performed the negligent sterilization procedure . . . no injury under the Locke ¹⁵ accrual rule occurred at that time. . . . [The plaintiff's] cause of action did not accrue until her child was conceived." ¹⁶

2.302 Extension of Statute of Limitations for Foreign Objects, Fraud, Concealment, Intentional Misrepresentation, and Negligent Failure to Diagnose Tumor, Cancer, or Schwannoma. The two-year statute of limitations is extended in malpractice actions against a health care provider under the following circumstances:

1.	Where a foreign object having no therapeutic or diagnostic effect is left in a patient's body, for a period of one year from the date the object is discovered or reasonably should have been discovered;
2.	Where fraud, concealment, or intentional misrepresentation prevents discovery of the injury within the two-year period, for one year from the date the injury is discovered or, by the exercise of due diligence, reasonably should have been discovered;

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3. In a claim for the negligent failure to diagnose a malignant tumor, cancer, or an intracranial, intraspinal, or spinal schwannoma for a period of one year from the date the diagnosis of a malignant tumor, cancer, or intracranial, intraspinal, or spinal schwannoma is communicated to the patient by a health care provider, provided the health care provider's underlying act or omission was on or after July 1, 2008, in the case of a malignant tumor or cancer or on or after July 1, 2016, in the case of an intracranial, intraspinal, or spinal schwannoma. Claims under this section for the negligent failure to diagnose a malignant tumor or cancer where the health care provider's underlying act or omission occurred before July 1, 2008 are governed by the statute of limitations that existed before July 1, 2008. Claims under this section for the negligent failure to diagnose an intracranial, intraspinal, or spinal schwan-noma, where the health care provider's underlying act or omission occurred before July 1, 2016, are governed by the statute of limitations that existed prior to July 1, 2016. ¹⁷

Section 8.01-243(C) can extend...