Virginia Personal Injury Claims and the Statute of Limitations

In most Virginia personal injury cases, you only have 2 years from the date you discover your injury to file a personal injury claim.

Before you file a personal injury claim in Virginia, you’ll have to consider the statute of limitations for your case.

“Statute of limitations” simply means that, after you’re hurt, you have a deadline to file a personal injury claim.

There are other regulations in Virginia that you should go over as well, such as how much money you can legally sue for, and whether the court finds contributory negligence.

Here, we’ll discuss the statute of limitations, as well as the general timeline for personal injury claims in Virginia.

How Long Can I Wait to File a Claim?

Construction worker holding injured leg, coworker helping.

According to Virginia Code § 8.01-243, the short answer is 2 years.

After you’re injured in an accident, you have 2 years to file a personal injury claim.

The stopwatch starts on the day of the accident.

Generally, if you’re injured in an accident you don’t want to sue for damages right away.

This is because there could be long-lasting effects from the accident that are missed in the first few weeks you’re recovering.

While getting your paperwork in order is a great place to start, you’ll want to hold off on submitting it to see how your injury plays out.

However, there are some exceptions where this two year rule doesn’t apply.

For example, if you are suing for damages to an infant, the Virginia Code extends the statute of limitations to 5 years.

Virginia’s Discovery Rule Exception

Injured man with a broken foot pushes himself along in his wheelchair.

In addition to the infant example mentioned above, Virginia also follows a general practice called the “discovery rule.”

This rule basically says that the statute of limitations for filing a claim begins to count down when you discover that you are injured.

It may also apply when you discover that someone, or something, else caused your injury.

For instance, let’s say you’re in a car accident on the way home from work.

While you are talking to the police officer, you feel fine, and you tell him so.

However, the next morning you wake up with terrible back pain, and you realize that you have sustained a back injury from the accident.

For states that allow the discovery rule, you can start the stopwatch for filing a personal injury claim the day you actually discover your injury.

In this scenario, this would be the day following the accident.

However, Virginia is also very conservative when it comes to using the discovery rule.

Further, Virginia courts rarely award damages after the 2-year statute of limitations is over.

There are a few specific scenarios where the discovery rule becomes important to your case.

We’ll outline the most common below.

Medical Malpractice

Because some injuries only appear years if not decades after the original cause, you may not discover the problem right away.

For this reason, the discovery rule applies to some aspects of medical malpractice, which can have some not-so-obvious effects on your health.

The Virginia Code specifically list 4 scenarios in this vein:

Foreign Object in the Body — Believe it or not, the Virginia Code addresses this problem specifically.

If a doctor accidentally leaves a foreign object in your body after surgery, you have 1 year after you discover the existence of the object to file a claim.

Failure to Discover a Tumor — If a medical professional fails to discover a tumor when they reasonably should have made the discovery, you have 1 year after you discover the tumor to file a malpractice claim.

Concealment or Fraud — If you can definitively prove that a medical professional actively concealed their involvement in an injury, you have 1 year after you discover the fraud to file a claim.

Sexual Abuse — Sexual abuse is a very special case in regards to medical malpractice. 

In these cases, the victim generally has 20 years to bring the claim against the medical professional.

This clock starts either on their 18th birthday or on the first date they remember the abuse (in the case of repressed memories).

Asbestos

Asbestos is a naturally occurring mineral that companies used in building construction for most of the 20th century.

It has natural insulating, noise-canceling, and fire repellant properties.

Builders used asbestos for many years until they realized that the asbestos fibers, when breathed in, can cause severe illness.

For this reason, Virginia courts have applied the discovery rule in most personal injury claims involving asbestos.

Implanted Medical Devices

Just in the last couple of years, Virginia has amended its code to include the discovery rule in personal injury claims involving medical devices.

For these claims, the Virginia Code allows for the 2-year statute of limitations, which begins:

  • When the patient discovers the problem with the device; or,
  • When the patient discovers that the problem was due to negligence by the medical provider or manufacturer.

These medical devices can include anything implanted inside the body for medical purposes, such as pacemakers, knee replacements, and IUDs.

How Much can I Sue For?

Two people going over a document on clipboard.

In addition to limiting when you can sue, Virginia law also puts some limits on the actual amount a jury can award in a personal injury lawsuit.

This usually comes up in two specific types of cases.

Medical Malpractice Cap

According to the Virginia Code, the current malpractice damages cap is around $2.5 million.

The amount is set to increase by $50,000 every year until 2031 (to a new total cap of $2.95 million).

Contributory Negligence

The second case where you might see a cap on your award comes when the defense can prove contributory negligence.

When the court examines your case, they will always try to determine who was at fault.

During this process, they may find that there was contributory negligence on your part.

Basically, the question goes, did you contribute to the accident in any way?

For example, if someone runs a red light and hits your car, the defense could argue that you weren’t paying attention to the road.

If this holds up in court, the judge most likely won’t award you any damages.

Virginia is one of the few states that still adheres to the pure contributory negligence rule described above.

Most other states use the comparative negligence rule.

In comparative negligence, the court weighs the percentage of liability that both parties have in the accident, and then awards damages accordingly.

Conclusion

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In Virginia, the basic timeline for personal injury claims caps out at 2 years from the date of the accident.

In certain cases, the court can extend this limit to 5, or even 20, years.

Generally, however, Virginia courts are very conservative about the statute of limitations.

If your claim is outside of that 2-year window, the court may simply refuse to hear your case.

Personal injury lawsuits often rely heavily on the specifics of your actual case, so you should always speak with an attorney before making any major decisions.

An experienced attorney can help you through the process and make sure you’re given the justice you’re due.

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A Client-First Approach to Legal Services

Ready to Speak With An Attorney?

We’re a Richmond, Virginia law firm with clients from around the world. Schedule your free phone consultation today and let’s talk about what we can do for you!