There are some circumstances where the law limits your rights or will not allow you to sue a doctor or hospital worker who has committed medical malpractice on you no matter how bad the medical error is. For example, if you wanted to make a claim against the staff at Portsmouth Naval Hospital in Portsmouth, Virginia (VA), your
injury attorney will need to look carefully at the question of sovereign immunity to see if it restricts your claim. If the doctor or staff member who committed the medical malpractice was an active duty military employee, then the doctrine of sovereign immunity might restrict your suing that person because you cannot sue the federal government except under limited circumstances set forth in the Federal Tort Claims Act. The Federal Tort Claims Act limits the recovery and the right to jury in medical malpractice cases for the work of doctors who are federal employees. The Federal Tort Claims Act also limits attorney’s fees and poses other limitations which may make it harder to recover fair compensation for a wrong done by entities like Portsmouth Naval Hospital.
Moreover, if you are an active duty military person and the same is true of the doctor at Portsmouth Naval Hospital who committed the medical malpractice, you may not be able to make any claim at all as a result of the FERES doctrine. The FERES doctrine says that active duty military cannot sue another active duty military person over any mistake that is made during the course of their duties. So, if a sailor has medical malpractice committed on him by another Navy personnel at Portsmouth Naval, he cannot make any claim at all. However, his wife, who is not active duty military, can make a claim under the same circumstances, however limited by the Federal Tort Claims Act.
One of the ways to get around the problem of the FERES doctrine is to see if you can establish that the doctor or the person who made the error at Portsmouth Naval Hospital was in fact a civilian contractor, not an active duty military person. Portsmouth Naval hires a certain number of civilian contractors who are not direct employees of the U.S. government. Rather, they are independent contractors. Under those circumstances, a claim may not be barred in the same way. This is something that the attorney will have to figure out as part of the work on that malpractice injury file.
In the State of Virginia (VA), there are also other immunity doctrines applicable to medical malpractice cases. For example, one hot topic in the the Virginia (VA) Circuit Courts is whether a given act of medical malpractice committed at a big teaching hospital like the University of Virginia (VA) in Charlottesville, Virginia (VA) or VCU’s Medical College of Virginia (VA) in Richmond, Virginia (VA) is allowed to go forward. If the medical worker is considered an employee of medical foundation and working as part of the educational mission, then suit may be barred under the doctrine of charitable immunity. However, some courts have held that certain actions of medical malpractice were not educational, but were rather just part of ordinary patient care and therefore would not be subject to immunity. This is a very controversial topic right now among Virginia (VA) medical malpractice lawyers.
Even under the best of circumstances where you are allowed to go forward with your claim for a medical error in Virginia (VA), there is always Virginia’s cap on medical malpractice cases. The cap is currently at a figure between $1.5 and $2 million. This cap means that no matter how badly injured the person is by a medical mistake in Virginia (VA), they can never recover more than this statutory cap amount. This is special legislation passed because the medical lobby and the insurance lobby is so strong in Virginia (VA). There is no other area or professional group who gets this kind of special protection. The cap in Virginia (VA) is different and probably more unfair than medical malpractice caps in other states. In Virginia (VA), you only get the $1.8 million or whatever the cap is at regardless of how much economic loss or injury you have. For example, the hospital could have caused an injury which will cost you $10 million to treat over the rest of your lifetime and caused you to lose millions in lost wages, but they are never responsible for more than the statutory amount. Some other states have a rule which, although harsh, make a bit more sense. In those other states, the cap is on non-economic pain and suffering damages. In those cases, if a medical error is committed and you have $10 million of economic loss, then you can get up to that amount of economic loss plus a statutorily capped amount for your general pain, scars, deformity, humiliation, anguish and suffering. With all the specialized laws, immunities, and caps, medical malpractice in Virginia (VA) is one of the trickiest and most complex areas of personal injury law.
Rick Shapiro has practiced personal injury law for over two decades in Virginia, North Carolina, and throughout the Southeastern United States. He is a Board Certified Civil Trial Advocate by the National Board of Trial Advocacy (ABA Accredited) and has litigated injury cases throughout the eastern United States, including wrongful death, trucking, faulty products, railroad and medical negligence claims. His success in and out of the court room is a big reason why he was named 2019 “Lawyer of the Year” in railroad law in U.S. News & World Report's Best Lawyers publication (Norfolk, VA area), and he has been named a “Best Lawyer” and “Super Lawyer” by those peer reviewed organizations for many years.