I spend a great deal of time every week talking to families about their possible medical malpractice claims. Many are amazed that despite what they believe to be an obvious physician error, I do not recommend filing suit.

There is no exact litmus test but there are legal requirements that must exist before you can file and serve a malpractice lawsuit in Virginia. These requirements are strict and difficult to prove.

You may have a viable lawsuit if you have the following three factors:


1. Liability: Meaning that someone is at fault and that the mistake was avoidable. You will have to prove to a reasonable degree of medical probability, with supportive medical experts willing to testify under oath, that what the physician / nurse / nursing home did or failed to do was negligence. Not just a mistake, but so bad that other reasonably prudent doctors would not have made that mistake. It is a high standard. You basically have to prove the doctor got an F if he or she was being graded on a normal A-F scale.

If you have experts willing to say that someone was negligent – then you can prove liability.

2. Causation: Was the physician’s / nurse’s / nursing home’s negligence the SOLE cause of the patients pain, suffering and subsequent problems?

This means that the medical mistake, was the direct cause of a physical problem.

3. Damages: Was the person injured so badly that he or she will have to pay a large amount of money to recover? Will they be able to work again? If you are looking at an injury with a simple or quick recovery (less than 2 months) – then your damages may not be high enough to warrant filing a lawsuit.

Here are some facts about Medical Malpractice lawsuits in Virginia:

1. They are time consuming: 1-2 years before they are concluded.
2. They are expensive: experts charge hourly rates for the work they do behind the scenes and in court.
3. They are emotionally difficult: You will have to share personal information with strangers as both sides evaluate your damages, and the harm done by the malpractice.
4. There is no such thing as a slam dunk in the law.

Do you have a Medical Malpractice case? Maybe. We are happy to give you a free consultation and evaluation of your case. If we think you have a case, the next step will be to hire experts to see if they agree. If they do – then yes, you have a malpractice case.

We hope you will call and allow us to evaluate whether or not you have a case: 1-866-985-0098.

Lauren Ellerman
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