Virginia Code § 8.01-243 establishes the governing framework for medical malpractice claims, imposing a two-year statute of limitations from accrual combined with an absolute ten-year statute of repose. This dual-deadline structure, similar to frameworks in other jurisdictions, requires plaintiffs to satisfy both timing requirements: the limitations period is subject to discovery rule tolling, while the repose period serves as a firm outer boundary.
This article explains statutory deadlines, accrual standards, tolling exceptions, and judicial interpretations affecting medical malpractice claims under Virginia law.
Core Rules for Medical Malpractice Statute of Limitations in Virginia
The following rules govern filing deadlines, accrual standards, repose periods, and the scope of professional negligence under Virginia Code § 8.01-243.
Deadline Structure
Virginia Code § 8.01-243(A) requires medical malpractice actions to be filed within two years after the cause of action accrues. Accrual occurs when the injury is sustained or when the plaintiff discovers or should have discovered the injury through reasonable diligence.
Ten-Year Statute of Repose
The same statutory provision establishes a firm ten-year limitation measured from the date of the negligent act or omission. This statute of repose operates independently of discovery and cannot be extended by the continuing treatment doctrine or discovery rule tolling for competent adult plaintiffs. Limited exceptions exist for minors under age eight and for persons under legal disability at accrual.
Discovery Rule Requirements
Virginia applies a discovery rule that delays accrual until the plaintiff discovered or should have discovered the injury through reasonable diligence. Under this standard, a claim accrues when a plaintiff:
- Knows or should know that an injury has occurred.
- Could have discovered the injury through reasonable diligence.
The discovery rule focuses on awareness of injury, not awareness that the injury resulted from negligence. Constructive knowledge applies—the limitations period begins when a reasonably diligent plaintiff should have known of the injury, even if actual knowledge came later.
Scope and Exclusions
Under Virginia Code § 8.01-243, the statute applies to claims involving:
- Injury to the person, whatever the theory of recovery.
- Brought against licensed health care providers.
- Arising from professional medical judgment or treatment.
The medical malpractice limitations framework does not apply when:
- The conduct does not involve professional medical judgment.
- The claim is based on ordinary negligence (premises liability, administrative errors).
- The action involves intentional torts rather than negligence.
In those situations, Virginia's general personal injury limitation periods apply.
Tolling Exceptions That Affect Medical Malpractice Statute of Limitations in Virginia
Virginia recognizes five primary tolling exceptions to the medical malpractice statute of limitations, distinguished by restrictive treatment of minor plaintiffs and a rigid ten-year repose period.
1. Minority Tolling with Age-Specific Caps
Virginia Code § 8.01-243.1 establishes age-based limitations departing from common law principles. Minors under age eight at the time of alleged malpractice must commence their action before their tenth birthday. Minors age eight or older receive no additional tolling benefit beyond the standard two-year period.
2. Incapacity Tolling
Virginia Code § 8.01-229 provides tolling for persons legally incapacitated at the time the cause of action accrues. The incapacity must exist at the time of accrual and constitute a substantial handicap preventing the pursuit of legal action. Virginia courts require proof that the mental or physical condition prevents the person from understanding their legal rights or managing their own affairs. Temporary emotional distress, grief, or similar transient conditions are insufficient.
When a guardian is appointed, the representative has the longer of the remaining limitation period or one year after qualification. This ensures that newly appointed guardians have adequate time to investigate potential claims and file suit, even when the original limitation period has nearly expired. Courts evaluate incapacity claims on a case-by-case basis, examining medical evidence and testimony regarding the plaintiff's functional capacity at the time of accrual.
3. Fraudulent Concealment
Virginia courts require proof of five elements to establish fraudulent concealment:
- A material fact was falsely represented or concealed.
- The provider knew it was false.
- Concealment was made with the intent to deceive.
- The plaintiff was unaware and could not have discovered it through reasonable diligence.
- The plaintiff relied on the concealment.
Mere failure to inform a patient of potential malpractice is insufficient. The concealment must involve affirmative acts or misrepresentations that actively prevent discovery of the malpractice, rather than simple omissions or silence. Courts apply this exception narrowly, requiring clear and convincing evidence of intentional deception beyond ordinary nondisclosure.
4. Foreign Object Exception
Virginia Code § 8.01-243(C)(1) extends the statute of limitations by one year from the discovery of a foreign object with no therapeutic or diagnostic purpose. However, this extension remains capped by the ten-year statute of repose. The statute explicitly excludes objects with medical purposes, such as:
- Surgical implants.
- Prosthetic devices.
- Materials intended to remain in the body.
This exception applies only to unintended foreign objects such as surgical instruments or sponges inadvertently left during procedures.
5. Continuous Treatment Doctrine
Virginia recognizes tolling during a continuous and substantially uninterrupted course of examination or treatment by the same healthcare provider for the same condition. Passive monitoring instructions without scheduled follow-up do not maintain the continuous care necessary for tolling.
How Virginia Courts Interpret Medical Malpractice Statute of Limitations Rules
Virginia courts have progressively refined the boundaries of tolling doctrines through key appellate decisions addressing continuous treatment, discovery rules, and statutory exceptions.
Cothran v. Jauregui — Continuous Treatment Doctrine Limitations
The Supreme Court of Virginia in Cothran v. Jauregui (2025) held that a ten-month gap during which a patient was instructed only to monitor a condition and call if changes occurred constituted a substantial interruption ending the continuous treatment tolling period. The court reversed the Court of Appeals, which had found continuous treatment applied.
Between May and October 2018, the patient informed her OB/GYN about a breast lump during four pregnancy-related visits. The physician diagnosed it as a clogged milk duct and at the October 2018 postpartum visit, advised the patient to contact the office if she noticed changes. After a ten-month gap with no contact, the patient returned in August 2019 when changes were observed; testing revealed metastatic breast cancer. She filed suit in June 2021. The Court held that passive monitoring instructions—without scheduled follow-up appointments or active treatment—do not maintain the continuous care relationship necessary for tolling under Farley v. Goode.
Chalifoux v. Radiology Associates — Episodic Care as Continuous Treatment
The Supreme Court of Virginia in Chalifoux v. Radiology Associates (2011) held that repeated diagnostic imaging services over several years constituted continuous examination sufficient to toll the statute of limitations. The court reversed dismissal of a malpractice claim filed more than two years after the initial alleged negligence.
Between December 2002 and October 2005, treating physicians referred the plaintiff to Radiology Associates on six occasions for brain MRIs and related imaging studies, all related to persistent right-sided facial pain and headaches. All studies were kept in one file under the plaintiff's name, and each scan related to the same symptoms. Testing in October 2005 revealed a tumor that had been present since at least December 2002. The court distinguished this pattern of active, repeated examinations from isolated diagnostic acts, holding that the ongoing relationship tolled limitations until the final imaging study.
Farley v. Goode — Foundational Continuous Treatment Doctrine
The Supreme Court of Virginia in Farley v. Goode (1979) established the foundational principle that the statute of limitations is tolled during continuous treatment for the same condition by the same provider. The court held that the limitations period runs from the end of treatment, not from the initial negligent act.
The plaintiff began treatment with a general dentist in 1966, receiving examinations, X-rays, root canals, and extensive crown and bridge work over multiple years. A gap occurred from 1969 to 1972, but treatment resumed and continued until August 1976. The plaintiff filed suit in November 1976, alleging failure to diagnose and treat periodontal disease. The court held that the continuous treatment relationship tolled limitations until the final visit, reasoning that patients should not be forced to sue their physicians while still receiving care. This doctrine was substantially narrowed by Cothran v. Jauregui (2025), which clarified that significant gaps with only passive monitoring instructions terminate tolling.
Recent Updates to Medical Malpractice Statute of Limitations Laws in Virginia
Virginia's core medical malpractice statute of limitations provisions in Virginia Code §§ 8.01-243 and 8.01-243.1 remained unchanged between 2022 and 2025. The two-year general limitation period and ten-year statute of repose continue to govern without statutory modification.
Legislative activity during this period focused exclusively on damage caps under Virginia Code § 8.01-581.15 rather than on filing deadlines. Senate Bill 599 (2022) addressed recovery limitations, and Senate Bill 904 (2025) proposed eliminating damages caps; neither bill modified the limitations framework.
What This Means for Medical Malpractice Filing Deadlines in Virginia
Virginia's dual-deadline structure requires claims to be filed within two years of discovery and within ten years of the negligent act. The recent narrowing of the continuous treatment doctrine in Cothran v. Jauregui places greater emphasis on identifying periods of active medical care rather than passive monitoring.
Compliance with these deadlines depends on accurate identification of treatment dates, injury discovery points, and any gaps in care that may have ended tolling periods. For related considerations affecting case preparation, see medical record retrieval requirements. Document processing systems that organize medical records and identify treatment timelines support law firms' deadline calculation workflows for Virginia medical malpractice claims.
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