Why your worst nightmare is a “good case” under Virginia law, and why that is so wrong

Why your worst nightmare is a “good case” under Virginia law, and why that is so wrong

Why your worst nightmare is a “good case” under Virginia law, and why that is so wrong 150 150 Lauren Ellerman

Sadly, in our office, when someone says – “That’s a good case,” some awful unspeakable tragedy has occurred to someone in Western Virginia. 

The list of tragedies is unfortunately very long: 

  • someone lost a loved one
  • a child has died or suffered a life changing injury
  • a professional lost his or her job because they couldn’t work anymore
  • someone has spent months in a hospital and the bills are stacking up
  • a parent has died because of neglect or abuse at a long term care facility
  • a pharmacy has mixed up medications
  • a physician didn’t read the full medication list and prescribed a lethal combination of pills 
  • a surgeon didn’t appreciate the nuance of this procedure and caused significant injury
  • a cancer was missed and went untreated

If someone calls our office, and there might be bad or negligent medical care from a nurse, doctor, nursing home, hospital system, a clear and preventable mistake – but that person has recovered fully and or the injury was short lived, we often say – “Yes, you may have a case but it is not going to benefit you financially so we don’t recommend you file suit.”

So why is a life changing injury a good case, and a short term one – not worth filing?

Sadly, the law and the money make it so. 

In order to file a malpractice or negligence lawsuit in Virginia, you must have experts who have signed affidavits before the lawsuit is formally served. The experts must review medical records, and they almost always charge a pretty penny for their time (and who can blame them – they have skills, and limited time just like the rest of us) so filing a lawsuit can be very expensive. 

Here is an idea of what it might cost to file a malpractice lawsuit in Virginia:


Request Records $200 for records on paper and discs
Expert review for negligence $2,000 – $5,000
Expert review for causation  $2,000 – $5,000
Expert to discuss job loss and decline in function $3,000 – $10,000
Court reporter costs throughout case $5,000 – $10,000
Expert costs as case continues $20,000 – $40,000
Trial prep, exhibits Etc.  $5,000
Filing the lawsuit $250

A single case could easily cost $20,000 – $50,000 in costs – and that does NOT include attorneys fees which in Virginia, is almost always 40% for Medical Malpractice and 33% for personal injury. 

So if you missed a week of work, had $5,000 in unpaid medical bills – would it be worth all of the above costs and expenses to file suit?

In the words of my daughter’s favorite book character – Pete the Cat – “Goodness No.”

So one must suffer a financial harm and injury so great, that it justifies significant outlay of costs in litigation. 

So a “good case” to the lawyers, one worth 1-2 years of time and effort, is usually one with high lost wages, high medical bills, or significant suffering. 

Doesn’t that sound awful?

Of course it does.

And it sounds awful to say it and think it daily at work. Often I will tell clients – “be grateful you don’t have a lawsuit. Recovering from your injury, being a whole person again, not losing your job is all much better than having a lawsuit.”

Should there be a less formal way for victims of neglect or malpractice to bring claims that doesn’t cost so much? Maybe.

Does such a way exist right now under Virginia law? Not really. 

And so we exist in a state where the most significantly injured have life altering tragedy, and maybe some access to “justice” that costs them thousands and thousands of dollars in costs and attorneys fees, and will take years to get.

Doesn’t seem that just to me. Seems rather bleak. 

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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