If you’re thinking of pursuing a medical malpractice case in Virginia, understanding the legal requirements for expert witness certification is crucial. Virginia law, specifically Va. Code § 8.01-20.1, outlines the process for certifying expert opinions in medical malpractice actions.

Let’s break down what this entails and what it means for your potential medical malpractice case.

Virginia’s Medical Certification Requirement

Before serving a medical malpractice lawsuit in Virginia, you must be able to certify that you have obtained a supporting expert witness opinion at the time of requesting service of process upon a defendant. This certification involves obtaining a written opinion from an expert witness who you reasonably believe meets the qualifications outlined in Virginia Code § 8.01-581.20

The written opinion must state, based on a reasonable understanding of the facts, that the defendant deviated from the applicable standard of care and that this deviation was a proximate cause of the injuries claimed. 

Caveat: If the plaintiff alleges a theory of liability where expert testimony is unnecessary due to the act of negligence falling within common knowledge and experience, this certification may not be necessary.

The Certification Requirement Applies Cases Against Any Health Care Provider

As defined by the Virginia Code, “Health care provider” means (i) a person, corporation, facility or institution licensed by this Commonwealth to provide health care or professional services as a physician or hospital, a dentist, a pharmacist, a registered nurse or licensed practical nurse or a person who holds a multistate privilege to practice such nursing under the Nurse Licensure Compact, an advanced practice registered nurse, an optometrist, a podiatrist, a physician assistant, a chiropractor, a physical therapist, a physical therapy assistant, a clinical psychologist, a clinical social worker, a professional counselor, a licensed marriage and family therapist, a licensed dental hygienist, a health maintenance organization, or an emergency medical care attendant or technician who provides services on a fee basis; (ii) a professional corporation, all of whose shareholders or members are so licensed; (iii) a partnership, all of whose partners are so licensed; (iv) a nursing home as defined in § 54.1-3100 except those nursing institutions conducted by and for those who rely upon treatment by spiritual means alone through prayer in accordance with a recognized church or religious denomination; (v) a professional limited liability company comprised of members as described in subdivision A 2 of § 13.1-1102; (vi) a corporation, partnership, limited liability company or any other entity, except a state-operated facility, which employs or engages a licensed health care provider and which primarily renders health care services; or (vii) a director, officer, employee, independent contractor, or agent of the persons or entities referenced herein, acting within the course and scope of his employment or engagement as related to health care or professional services in Virginia Code § 8.01-581.

Expert Witness Identity

One notable aspect of Virginia’s law is the protection of the certifying expert’s identity and qualifications. The certifying expert is not required to be one of the expert witnesses expected to testify at trial, and the defendants in the malpractice case are not entitled to discover the identity or qualifications of the certifying expert or the nature of their opinions. However, IF the certifying expert is also expected to testify at trial, the opinions and bases thereof may be discoverable under certain circumstances, but not the fact that the expert was the certifying expert.

Compliance And Sanctions

Upon written request from any defendant in a medical malpractice case, the plaintiff must provide a certification form affirming that the necessary certifying expert opinion was obtained at the time of requesting service of process or affirming that such opinion was not required. Failure to obtain the necessary certification may result in sanctions, including potential dismissal of the case with prejudice, as per the provisions of §8.01-271.1. In order to make sure that the deadline is not missed, some medical malpractice attorneys voluntarily serve the certification upon the defendant right away at the start of the case, along with the Complaint and Summons.Please note that this is different than the requirement that medical experts provide  supporting opinions during the expert designation process.

Conclusion

The medical certification process in Virginia requires careful attention to legal requirements and procedural steps. By understanding the certification requirements outlined in Virginia law and ensuring compliance with these provisions, plaintiffs can protect their rights within the legal framework. The attorneys at Wallace Wason, PLLC are experienced in obtaining and serving expert certifications, enabling our clients’ cases to advance where others might fail.

If you have been seriously hurt, we will help you make a serious recovery. Call today for a free, no-obligation, confidential case evaluation (703) 638-7717.

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