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A Guide to Injuries and Damages in Virginia Medical Malpractice Cases

On Behalf of | May 28, 2019 | Personal Injury

Medical malpractice occurs whenever a healthcare provider deviates from the standard of care in his or her profession, and as a result, causes an injury. In this article, we explain what injuries are compensable under Virginia’s medical malpractice laws, and what damages plaintiffs can recover for those medical malpractice injuries.

What Is Medical Malpractice?

Medical malpractice, generally speaking, occurs whenever a healthcare provider causes injury to a patient by deviating from the appropriate level of care. This can be an act (doing something the healthcare provider should not have done) or an omission (not doing something the healthcare provider should have done).

The more precise definition, in Virginia, is “any tort action or breach of contract action for personal injuries or wrongful death, based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient.”

Medical malpractice claims in Virginia can be brought against any healthcare provider, which can include individual practitioners, such as nurses and surgeons, corporations and facilities, such as hospitals, and even the employees of a healthcare provider who don’t provide health care themselves. The typical medical malpractice case is for negligence—in other words, when the healthcare provider does not intend to harm his or her patient, but fails to give the patient the level of care that his or her profession demands. However, medical malpractice can also apply to intentional acts, such as battery, and even a healthcare provider’s failure to abide by the terms of a contract.

To bring a claim for negligent medical malpractice, the plaintiff must, by expert testimony:

(1) Establish the standard of care.

(2) Demonstrate that the healthcare provider breached this standard of care.

(3) Show that this breach was an actual and proximate (meaning foreseeable) cause of the injury.

But what does injury mean? And what kind of damages can be recovered for medical malpractice injuries? We address those questions below.

What Are Medical Malpractice Injuries?

Injury means any positive physical or mental hurt. If a patient is injured as a result of a healthcare provider’s negligence, that patient may have a claim for medical malpractice.

Physical Injuries

Physical injuries can take many forms. If you have suffered any hurt to your body, that is a physical injury. In addition, Virginia courts have recognized other forms of physical injury, including:

    • Needles administrating medication or instruments drawing blood
    • Physical pain, including headache, fever, and chills
    • Vomiting

Mental Injuries

Mental injuries as a result of medical malpractice are also compensable; however, courts in Virginia tend to want mental injuries to be accompanied by some form of physical injury. Mental injuries often take the form of mental distress or anguish. For example, plaintiffs in medical malpractice actions have been allowed to pursue claims for:

    • The plaintiff’s fear of his or her own wellbeing
    • The plaintiff’s worry about contaminating friends and family
    • The plaintiff’s mental suffering resulting from a stillborn baby

What Damages Are Available in Medical Malpractice Cases?

Damages, essentially, are how the law compensates an injured party. In medical malpractice cases, damages can be divided into two categories: compensatory and punitive damages.

Compensatory Damages

Compensatory damages are exactly as they sound—damages designed to compensate the victim. In medical malpractice cases, compensatory damages are sums of money representing what a plaintiff has suffered as a result of any physical or mental injury caused by the healthcare provider’s negligence, and include both general and special damages.

General damages include pain and suffering, embarrassment, inconvenience, disability, and emotional distress. No exact dollar amount exists for these harms, so it is the job of the jury or the court to place a dollar amount on them. As a result, one plaintiff’s recovery for pain and suffering may not be identical to another plaintiff’s, even if their injuries are similar.

Special damages, on the other hand, can be calculated. These include medical expenses, lost wages and earnings, future medical expenses, and future lost wages and earnings. Thus, if an injury caused by medical malpractice requires expensive surgery or an extended leave of absence from work, such expenses can be recovered from the negligent healthcare provider.

Punitive Damages

Punitive damages are designed to punish the wrongdoer. As such, if a healthcare provider only negligently or inadvertently harms a patient, punitive damages will not be available. Rather, the healthcare provider must have committed medical malpractice intentionally or recklessly or in conscious disregard of a person’s rights, despite being aware that his or her conduct would probably cause injury.

It is not always easy to obtain punitive damages under Virginia law, but even if the healthcare provider exercised “some care” in treating the patient, punitive damages may be available.

In the typical case, including those for medical malpractice, the jury determines whether to award and the amount of punitive damages. However, by Virginia law, punitive damages cannot exceed $350,000—even if the jury decides to award more, the judge must reduce the amount to $350,000 under the law.

Medical Malpractice Damages Cap

Under Virginia law, damages for medical malpractice are subject to a limit, or cap, the amount of which depends on the year the medical malpractice occurred. For the period of July 1, 2018 to July 1, 2019, the cap is $2,350,000; this amount increases by approximately $50,000 each year. (The full list is available here.)

This means that the total a medical malpractice plaintiff can recover is limited, regardless of whether the amount fairly compensates the victim or represents the actual damages a suffered by a plaintiff as a result of his or her medical malpractice injury.

In Virginia, the cap applies to both compensatory and punitive damages; for example, if a jury awarded a medical malpractice victim $2,200,000 in compensatory damages and $350,000 in punitive damages, totaling $2,550,000, for an injury occurring on January 1, 2019, the judge would reduce the amount to $2,350,000, even though the amount of compensatory damages was below the medical malpractice cap and the cap for punitive damages ($350,000) was not exceeded.

If more than one healthcare provider is responsible for the same medical malpractice, the Virginia cap applies to the total amount recoverable from all of them. So, for example, if a doctor and a hospital are both responsible for medical malpractice committed on January 1, 2019, the plaintiff may not recover $2,350,000 against each of them, for a total of $4,700,000; the plaintiff is limited to $2,350,000. However, the Virginia cap applies only to a single injury. Thus, if a patient is injured by a negligent healthcare provider’s medical malpractice in two separate incidents, he or she may recover up to the statutory cap for each injury.

Fishwick & Associates: Fighting for Virginia Medical Malpractice Victims

If you or a loved one were injured as a result of medical malpractice in Virginia, Fishwick & Associates can help you understand your legal options. To schedule your confidential consultation, complete our online contact form or call us at 540-345-5890.


Va. Code § 8.01-581.1.

Speelman v. Browning, 57 Va. Cir. 234 (Norfolk 2001).

Howard v. Alexandria Hosp., 245 Va. 346, 429 S.E.2d 22 (1993).

Marcantonia v. Dudzinski, 155 F. Supp. 3d 619, 630-31 (W.D. Va. 2015).

Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1990).

Crouse v. Med. Facilities of Am. XLVIII, 86 Va. Cir. 168 (Roanoke City 2013).

Bowers v. Sprouse, 254 Va. 428, 492 S.E.2d 637 (1997).

Va. Code § 8.01-38.1.

Va. Code § 8.01-581.1.

Fairfax Hosp. Sys., Inc. v. McCarty, 244 Va. 28, 419 S.E.2d 621 (1992).

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.