A Virginia medical malpractice lawsuit can be a complicated endeavor, especially when compared with other types of civil cases. This is in part due to the medical and legal issues at play in these kinds of lawsuits, which can require the introduction of extensive treatment records and the detailed testimony of expert witnesses. But it's also because Virginia, like most states, requires the plaintiff (the person filing the lawsuit) to comply with a number of procedural requirements at the outset of the case. These safeguards have been put in place as part of tort reform efforts, which seek to discourage the filing of meritless (or down right frivolous) injury-related lawsuits.
In this article, we'll focus on Virginia's "Certification of Expert Witness Opinion" requirement for medical malpractice lawsuits. To get details on other procedural rules related to Virginia medical malpractice lawsuits, check out our companion articles What is the Virginia Statute of Limitations for Medical Malpractice Lawsuits? and Expert Witness Requirements for Virginia Medical Malpractice Lawsuits.
Certification of Expert Witness Opinion in a Virginia Medical Malpractice Lawsuit
When you file a medical malpractice lawsuit in Virginia, you're also essentially telling the court (and the defendant) that you've talked to a qualified medical expert, and that person believes your case has merit.
This "certification" is spelled out in Code of Virginia section 8.01-20.1, which says that by filing a medical malpractice lawsuit in the Virginia court system, and serving the lawsuit on the defendant health care provider, the plaintiff (the person filing the lawsuit) is certifying that:
- the plaintiff has obtained a written opinion from a medical expert who would qualify as an expert witness under Virginia's rules for expert testimony in medical malpractice cases, and
- the written opinion states the expert's belief that, based on a "reasonable understanding of the facts" of the case, the defendant health care provider provided medical treatment to the plaintiff that fell below the applicable standard of care under the circumstances, and
- the written opinion also states that the health care provider's deviation from the applicable standard of care was a "proximate cause" of the injuries or other harm being claimed by the plaintiff as part of the medical malpractice lawsuit.
The only type of case where this kind of certification isn't necessary is one where the plaintiff's allegations won't need to be substantiated by expert testimony because the alleged wrongdoing "clearly lies within the range of the jury's common knowledge and experience," according to section 8.01-20.1. An example of the kind of medical malpractice case where "certification of expert witness opinion" might not be required is one where a medical instrument, sponge, or other material was left inside the patient after a procedure. In that situation, the jury doesn't need an expert to show them how or why that amounted to medical negligence. (More: How Do I Prove Medical Malpractice?)
More Procedural Rules Related to This Certification Requirement
It's important to note that the expert relied upon for this certification does not need to be one who will be called to testify at trial, and the defendant health care provider isn't entitled to learn the identity of the certifying expert. But the defendant health care provider may make a written request that the plaintiff either:
- affirm that he or she had in fact obtained the required certifying expert opinion by the time the defendant was served with the lawsuit, or that
- the plaintiff believes that no certifying expert opinion was necessary based on the allegations.
The plaintiff must respond to this written request within 10 business days of receiving it.
Finally, failure to obtain the required certifying expert opinion may result in the imposition of sanctions against the plaintiff, and it could even result in the dismissal of the medical malpractice lawsuit.
For more details on the ins and outs of Virginia's procedural requirements for filing a medical malpractice lawsuit, talk to an experienced medical malpractice attorney in your area. Learn more about Finding and Choosing the Right Medical Malpractice Lawyer.