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Personal Injury

10/29/2009
Mark D. Dix
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Medical Malpractice Suit Dismissed On Statute Of Limitations Grounds

In Chalifoux v. Radiology Associates of Richmond, Inc., a local trial court dismissed a woman's medical malpractice suit against her radiologist. The woman alleged that the radiologist negligently misread several tests and studies, which, if properly read, would have indicated that she had a brain tumor.

The allegedly negligent radiological tests were performed between December 2002 and October 2005. An immediate and threshold problem is apparent from these facts: in Virginia, the statute of limitations for personal injury lawsuits is only two years. In short, the law requires injured persons to file suit within two years of their injury. In this case, Ms. Chalifoux did not file her lawsuit until 2009, four years after the last negligent reading.

Despite Ms. Chalifoux's procedural default, Virginia law allows her an exception to the statute of limitations, called the “continuous treatment rule.” Under the continuous treatment rule, the injury (which starts the two-year statute of limitations clock) does not accrue until an entire course of treatment has concluded. In essence, the rule allows an injured plaintiff to use the latest date she was treated if the discrete medical visits are part of a single or continuous treatment regimen.

In applying the continuous treatment rule, the Richmond City Circuit Court found that Ms. Chalifoux's visits were not part of a continuous treatment. The court held that, even if each test was compared to all the past tests, each radiological test reading was a separate and distinct wrong. As such, the normal two-year statute of limitations should apply to each erroneous test reading.

Labels: personal injury lawsuit