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Medical Malpractice Defense in Virginia

Virginia address – by appointment only:
2800 Eisenhower Avenue
Alexandria, VA 22314

The medical malpractice defense lawyers at the national law firm Oberheiden P.C. legally represent health care providers – both individual professionals and the entities that employ them – against allegations of malpractice in Virginia. Operating from law offices in Fairfax and Alexandria, our experienced defense team can provide the legal strategies necessary to beat back the allegations you are facing and protect your professional future.

Lynette Byrd
Attorney Lynette Byrd
Virginia Medical Malpractice Defense Team Lead
Former DOJ Attorney envelope iconContact Lynette
Nick Oberheiden
Attorney Nick Oberheiden
Virginia Medical Malpractice Defense Team Lead envelope iconContact Nick
Kevin M. Sheridan
Kevin M. Sheridan
Virginia Medical Malpractice Defense Consultant
Former FBI Special Agent
Wade McFaul
Wade McFaul
Virginia Medical Malpractice Defense Consultant
Former HHS-OIG Assistant Special Agent-in-Charge

What is Medical Malpractice in Virginia?

Medical malpractice is a type of personal injury lawsuit. Like all personal injury claims, the plaintiff bringing it has to prove the following three elements by a preponderance of the evidence:

  1. You owed them a duty of care
  2. You breached that duty of care
  3. That breach caused their injuries

If they can prove these three things, then you would be liable for the losses that your medical malpractice caused. The plaintiff would then have to prove the extent of those losses.

What makes medical malpractice claims different from other personal injury lawsuits is the complexities in determining exactly what your duty of care required you to do. This is the standard of care that you were legally required to provide. In other personal injury claims, the standard of care is that of a reasonably prudent person in similar circumstances.

In medical malpractice claims, though, healthcare professionals are not treated like just any normal person. You are treated as a healthcare professional. This comes with a higher standard of care – that of a reasonably skilled and competent healthcare practitioner of a similar level of expertise.

No matter what the plaintiff says, this does not mean that you are liable for any care that you provide that was below average. Instead, malpractice is care that failed to conform to a minimum standard in your field. A few examples of what can constitute medical malpractice in Virginia are:

  • Performing a surgery on the wrong patient or on the wrong body part, also known as wrong-patient or wrong-site surgeries
  • Accidentally leaving a foreign object inside a patient during a surgery and closing the incision
  • Performing a surgical operation that is not medically necessary
  • Using the wrong amount of anesthesia, leading to the patient either waking up during the surgery or suffering the adverse effects of too much anesthesia
  • Using too much force during a delivery and hurting the baby
  • Prescribing a pregnant woman drugs that would harm her fetus
  • Diagnosing a patient with the wrong medical condition when it is clear from the symptoms what they have
  • Unreasonably failing to diagnose a patient until it is too late to correct the problem
  • Not ordering appropriate medical tests when it is clear that they are needed
  • Discharging a patient from a hospital when they are still suffering
  • Mixing up lab results, leading to false information and wrong medical decisions

These are just a few examples of what can amount to medical malpractice.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden



Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney


Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Who Do We Represent?

The medical malpractice defense attorneys at Oberheiden P.C. represent both individual health care professionals and entities who have been accused of malpractice in Virginia.

Some of the individuals have included:

  • Doctors and physicians, including general practitioners and many specialists
  • Surgeons
  • Nurses and registered nurses
  • Anesthesiologists
  • Physician assistants
  • Dentists
  • Dental hygienists
  • Psychologists
  • Psychiatrists
  • Physical therapists
  • Occupational therapists
  • Veterinarians
  • Pharmacists
  • Lab technicians

While these are the individuals that can commit medical malpractice, if they are employees of a healthcare company then that company can be held responsible through vicarious liability. Known as the doctrine of respondeat superior, this can mean that the following healthcare entities can be sued for the medical malpractice of its employees if it happened within the scope of their employment:

  • Hospitals
  • Clinics
  • Doctors’ offices
  • Medical schools
  • Laboratories
  • Pharmacies
  • Surgical facilities
  • Dentist offices
  • Urgent care centers
  • Veterinary clinics
  • Nursing homes

Because of this exposure to liability, many healthcare providers have shifted away from hiring medical professionals as employees and towards hiring them as independent contractors. If you are interested in exploring that option for your healthcare facility, the healthcare defense and compliance team at Oberheiden P.C. can help you do that.

What are the Penalties for Medical Malpractice?

The most obvious penalty that you would suffer if the allegations of medical malpractice are substantiated is that you would have to compensate the victim.

For healthcare professionals that are employees or that carry their own medical malpractice insurance, the costs of paying a verdict or settlement would typically pass on to that entity or insurer. However, if the malpractice insurance company would cover the costs, policy limits may still leave you exposed – if the case goes to trial and the jury awards the victim $1.2 million, but your insurance policy limit is only $1 million, the plaintiff could pursue your personal assets to cover the remainder.

If you practice on your own and do not have medical malpractice insurance, then you would be responsible for all of the settlement or verdict.

The costs of compensating the victim can be massive, especially if the malpractice was egregious or if it was fatal and led to a wrongful death claim, though Virginia’s damage cap laws do provide some relief.

However, the financial repercussions are not the only fallout from an unsuccessful medical malpractice defense.

Both businesses and healthcare professionals will face higher costs for malpractice insurance and can also suffer a substantial blow to their reputation as a quality healthcare provider. This can lead to some pretty major losses over time.

Individual healthcare professionals may also face legal action over their medical license after a finding of malpractice. This can imperil their professional future.

What Legal Defenses Can Be Raised?

The high penalties for failing to adequately defend against a claim of medical malpractice makes it extremely important to raise an effective legal defense to challenge the allegations. While every medical malpractice case is unique in Virginia, with each requiring its own unique response, some of the most common legal defenses include:

  • The statute of limitations has expired
  • You upheld the standard of care that was required of you and therefore did not commit malpractice
  • The malpractice did not cause the victim’s losses
  • You were not the one to commit malpractice; someone else did

5 Frequently Asked Questions About Virginia Medical Malpractice Law and the Defense that Oberheiden P.C. Provides

1. What is the Statute of Limitations for Medical Malpractice Claims in Virginia?

In Virginia, plaintiffs must typically file their medical malpractice claims within two years of discovering their injuries, or reasonably being able to discover them, or within 10 years of the incident of malpractice, whichever comes first (Va. Code § 8.01-243).

If the allegations involve a foreign object that was left inside the body during a surgical procedure, the statute of limitations is one year from the date that the object was discovered or reasonably should have been discovered. The same one-year limitation applies when the malpractice claim has been filed against a state employee.

If the alleged victim was under eight years old at the time of the purported malpractice, the statute of limitations tolls, or does not start running, until the victim turns eight.

2. Are There Any Damage Caps?

Virginia is one of many states that passed legislation capping the amount that plaintiffs could recover in a medical malpractice claim. These laws were passed to rein in skyrocketing malpractice insurance costs, which had risen due to exorbitant and wildly divergent jury awards.

That law, Va. Code § 8.01-581.15, however, is different than similar laws in other states. In other states, damage capping laws limit what plaintiffs can recover in noneconomic damages – those that are difficult to quantify in a dollar amount, such as the victim’s pain and suffering, or the loss of companionship suffered by the victim’s family. Virginia’s law caps the total dollar amount of all types of compensation that plaintiffs can recover in medical malpractice claims, including those based on wrongful death law.

The amount of Virginia’s damage cap increases every year. For incidents of medical malpractice that happen between the start of July, 2023, and the end of June, 2024, the cap is $2.6 million.

3. What if I Have a Lawyer from My Malpractice Insurance Provider?

If you have medical malpractice insurance, your insurance company will provide a defense lawyer for you. However, there are circumstances that can create a conflict of interests, such as when the best thing for you would be to take the case to trial, while the best thing for the insurance company would be to settle the case.

Hiring your own defense lawyer avoids this situation, which can be extremely dangerous for your future.

4. What Sets Oberheiden P.C. Apart from Other Medical Malpractice Defense Firms in Virginia?

One of the most important benefits that you get when you hire the medical malpractice defense team at Oberheiden P.C. is that all of the work that is done on your case will be performed by a senior-level lawyer.

Other law firms, in Virginia and elsewhere, are notorious for attracting clients with extremely experienced senior associates, but then delegating the work on those clients’ cases to junior associates or even to paralegals – often with very limited oversight by their more experienced counterparts.

We do not do that at Oberheiden P.C. because we cannot do it: The only lawyers that we have on staff have numerous years of experience in their field.

5. Why Don’t You Call Your Firm the Best Medical Malpractice Defense Firm?

This is the sort of thing that is more meaningful when our prior clients say it. You can read their testimonials here.

Reach Out to the Medical Malpractice Defense Team at Oberheiden P.C. in Virginia

If you or your healthcare company have been accused of committing medical malpractice in Virginia, reach out to the defense team at Oberheiden P.C. for vigorous legal representation and advocacy. Our two law offices in the state are at:

2800 Eisenhower Avenue
Alexandria, VA 22314
Phone:(703) 952-0247

10304 Eaton Place, 100
Fairfax, VA 22030
Phone: (888) 680-1745

You can also contact us online.

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