Some Basic Legal Time Limits For Personal Injury or Wrongful Death Claims in Virginia

In Virginia, generally speaking, a claim for a personal injury must be filed within two years of accrual.  See Va. Code 8.01-243.  The word “claim” here means a lawsuit.

Accrual, is in essence the time the clock starts ticking when a person is injured because of the act or inaction of another.  It is not the date that the injury is discovered. See Va. Code 8.01-230.

Exceptions exist to the general two year rule for personal injuries.  Some of the more significant exceptions are found in the Code of Virginia at Sections 8.01-228 through 8.01-256.  Since this is not an exclusive list of all exceptions and since the law, like the sea, is ever changing, one should consult an attorney.

For a wrongful death claim, the two-year period begins on the date of the person’s death for filing a wrongful death lawsuit. See Va. Code 8.01-244.

For injuries to minors (a person under age 18 years old), the clock does not start ticking until that person’s 18th birthday, which means that in most negligence cases the deadline to file a lawsuit in Virginia is the plaintiff’s 20th birthday. See Va. Code 8.01-229.  (See malpractice against a child, below).

Malpractice against a health care provider, hospital, nursing home, etc.: The period in which to file a claim (lawsuit) is the standard two years from the date of the injury. However, this period is extended in situations where a foreign object is negligently left inside a patient’s body to one year from the date the object is discovered or reasonably should have been discovered. See Va. Code 8.01-243.

A claim (lawsuit) for the negligent failure to diagnose a malignant tumor or cancer, the period in which to file a claim (lawsuit) is one year from the date of the diagnosis of the tumor or cancer. This exception only applies to failures to diagnose that occurred after July 1, 2008. See Va. Code 8.01-243.

An exception applies if the patient is undergoing continuous treatment for a particular ailment or condition.   In such a case the clock does not begin ticking until the treatment by the healthcare provider for that ailment or condition ends. Castillo v. Emergency Med. Associates, P.A., 372 F.3d 643 (4th Cir. 2004).

An exception is that a malpractice claim (lawsuit) brought on behalf of a minor against a health care provider must be brought within two years of the last act or omission causing the injury, unless the child was less than eight years old when the malpractice occurred. In that situation, the claim (lawsuit) must be brought before the child’s tenth birthday. This rule does not apply to foreign objects or a failure to diagnosis cancer. Those injuries are governed by Va. Code 8.01-243, regardless of the patient’s age (see above). See Va. Code 8.01-243.1.

The exceptions under Va. Code 8.01-243 to the two-year statute of limitations for a medical malpractice case do not extend the period in which to file a suit for more than ten years from the time of injury. See Va. Code 8.01-243.

Injury or wrongful death cases against local governments in Virginia require a Notice of Claim (or written notice statement).  A notice statement must be sent within six months of an injury if the claim is against a local government, such as a county, town or city. The notice letter must include the time, place, and nature of the claim. The statement must be filed with the county, city, or town attorney or with the chief executive or mayor of the county, city, or town. See Va. Code 15.2-209.  A “Notice of Claim” differs from a lawsuit and is an extra hoop through which you must jump.  The rules about the time by which a lawsuit must be started, still apply. 

Injury or wrongful death cases against the Commonwealth of Virginia require a Notice of Claim (or written notice statement).  A notice statement must be sent to the Director of the Division of Risk Management or the Attorney General within one year of the injury. The notice statement should include the time and place where the injury occurred and the agency or agencies that are liable. After notice is given, a lawsuit may be filed either upon having the claim denied by the Commonwealth or six months after filing the notice statement. The lawsuit must be filed within eighteen months of filing the notice statement. See Va. Code 8.01-195.6 and 8.01-195.7.

Injury or wrongful death cases against the United States Government or one of its agencies require a Notice of Claim (or a written notice statement).  A “Form 95” (“Claim for Damage, Injury, or Death,” 28 C.F.R. 14.2) must be sent to the government agency that employed the persons who caused the injury, within two years of the injury, or within two years of when you discovered you were injured.   5 U.S.C. 301, 28 U.S.C. 501 et seq., 28 U.S.C. 2671 et seq., 28 C.F.R. 14.3.  One should consult an attorney when dealing with these kind of claims.

This article is not provided for use or reliance by you or any third parties and does not purport to be exhaustive or to render legal advice for your particular situation or any other specific case. It is meant merely to assist you in sharpening the questions you might ask of your legal advisor in your particular case. Please give me a call should you have any questions. (See: Disclaimer)