Virginia’s Expert Affidavit Requirement in Medical Malpractice Cases

Medical malpractice cases are often complex, and in most instances, they require the testimony of at least one expert witness to explain certain medical or scientific issues to the jury. In an effort to ensure that only meritorious cases are filed and heard by the court, Virginia law makers passed a rule requiring Virginia medical malpractice plaintiffs to obtain a certification from an expert stating that the plaintiff’s case has merit.

Legal News GavelUnder section 8.01-20.1 of the Code of Virginia, the expert certification is required in all medical malpractice cases unless “the alleged act of negligence clearly lies within the range of the jury’s common knowledge and experience.” When a certification is required, it must state that the care provided by the named defendant “deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed.”

A plaintiff’s failure to include an expert’s certification can result in the dismissal of an otherwise meritorious case. A recent case served as a major warning to one medical malpractice plaintiff, whose case was nearly dismissed with prejudice for the failure to file the necessary expert affidavit.

The Facts of the Case

The plaintiff was a woman who gave birth to a baby who suffered from serious birth injuries. The plaintiff filed a medical malpractice lawsuit against the physician who delivered her baby, claiming that the medical care provided by the defendant fell below the generally accepted standard of care, and as a result, her child was born with serious birth injuries.

Under state law, the plaintiff had 60 days to file an affidavit of merit that was to be completed by a medical professional who practiced in the same field as the defendant. However, due to the plaintiff’s attorney’s oversight, no affidavit was filed. The defendant then successfully petitioned the court to dismiss the case.

The plaintiff appealed and was successful in reinstating her right to pursue her claim against the defendant. While each of the plaintiff’s arguments on its own was insufficient to excuse her non-compliance, the court determined that as a whole, the case presented an “extraordinary circumstance” that excused non-compliance. That being said, such a holding is rare, and most situations in which an affidavit is not filed result in the dismissal of a plaintiff’s case with prejudice.

The above case illustrates not just the importance of complying with all court rules, but also the importance of consulting with a diligent and experienced attorney who will ensure that a case is properly filed.

Are You in Need of an Attorney?

If you or a loved one has recently been a victim of Virginia medical malpractice, you may be entitled to monetary compensation. The dedicated Virginia personal injury and medical malpractice attorneys at the law offices of Charles B. Roberts, P.C. have decades of experience handling Virginia personal injury cases and know what it takes to be successful on their clients’ behalf. We understand that our diligence, perseverance, and experience are the key to our success and cater our representation to the needs of each client. Call 703-491-7070 to schedule a free consultation with an attorney today.

See More Blog Posts:

Court Rejects Argument That Non-Signing Party Was Bound by Arbitration Agreement, Virginia Injury Lawyers Blog, December 27, 2017.

Virginia Product Liability Claims, Virginia Injury Lawyers Blog, January 3, 2018.