Difference between a Car Accident case and Medical Malpractice case under Virginia law

Difference between a Car Accident case and Medical Malpractice case under Virginia law

Difference between a Car Accident case and Medical Malpractice case under Virginia law 150 150 Lauren Ellerman

This morning I read a tragic news story about a Virginia woman who was in a car accident that caused the death of her unborn child. 

I was impressed by the explanations provided by the article author, of the litigation process the woman and her family endured after the accident and case.

The author highlighted the following points:

  • The woman’s child died as a result of the impact
  • The woman hired a lawyer for her own injury, but filed a separate claim for the wrongful death of her unborn child
  • The woman was not the only party or beneficiary to the wrongful death claim – siblings and the unborn child’s father were also involved in that claim
  • Three different insurance companies were involved in the claim: the negligent driver’s policy + the woman’s policy that covered underinsured claims + a third umbrella policy that also covered harm that occurred to her and wasn’t fully compensated by underlying insurance
  • Litigation took a year
  • When the case settled, the Court had to approve the wrongful death claim on behalf of the unborn child
  • The woman’s lawyers got 1/3 of the settlement – and because they had been referred the case by another firm, they shared that 1/3 with the initiating law firm

While our office handles serious and tragic personal injury matters like the one referenced above, most of our work is permanent and life changing injury that results from negligent medical care in Virginia hospitals, doctors offices, nursing homes, home health etc.

The case structure and law however that applies is somewhat different, and I’d like to explain the similarities and differences.

The two main differences in an accident case and a malpractice case are the sources of payments, and the limits of payments. Under Virginia law, no matter how badly you have been hurt, your future medical bills, lost wages, etc. – there is a legal CAP to what you can recover against any kind of healthcare provider, and it is LOW compared to most every other state. Currently it is 2.6 million dollars, even if you have 10 million dollars in medical bills. In a personal injury action, you have no CAP and you can recover any amount – so long as their is a payment source (like insurance)

The other major difference is sources of payment. In malpractice there is usually one insurance policy at play – one decision maker (though sometimes the provider has no insurance!). While in a personal injury action, there could be many policies, including the plaintiff’s or injured party’s own insurance.

As I write this – I think I would like to invent a new kind of insurance – plaintiff insurance for medical negligence. I buy my own policy to cover me in case the hospital screws up! While this doesn’t really exist, I’ll keep working on the idea.

When you read the article on the traffic case – I hope you felt the sadness felt by the woman, the depth of her loss, and how no amount of money could bring her baby back. The same holds true to our malpractice clients – they call us only after their worst day, and a tragic and permanent loss.

Is it fun being a plaintiff in a serious injury or malpractice case? No. Is it fun having your name and your loss splashed across the media? Absolutely not. Is it good to understand what our civil legal process is when it comes to this kind of case? I hope so.

Questions – call or email us at anytime – lellerman@frithlawfirm.com

Frith & Ellerman
Lauren Ellerman

About the author

Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at lellerman@frithlawfirm.com.

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