The Virginia Trial Lawyers Association’s publication, The Journal, contained a 2023 update to a study of Virginia’s immunity statutes written by one of our firm’s attorneys.
Suing the Unsuable is the focal topic of Vol. 30, No. 1 of The Journal. The issue’s bonus content included an update to a study by Wallace B. Wason, Jr. of Wallace Wason, PLLC regarding Virginia’s immunity statutes. In this updated list, Mr. Wason identified the literally hundreds of immunities which exist in Virginia’s statutory law.
What are legal immunities, though? Who has access to immunity from civil liability and litigation?
IMMUNITIES WITHIN VIRGINIA LAW
In Virginia, there is a wide array of statutory immunities designed to protect either the Commonwealth or its employees, or other individual persons or entities from legal consequences arising from their actions or inactions. Another way of saying this is that the protected classes of people are immune from civil liability for those claims. In this context, the term immunity refers to a legal protection from liability, punishment, or legal action that would otherwise apply.
The General Assembly’s reasons for granting immunity are varied. Some provisions protect persons involved in the administration of government programs, or those responding to emergency situations. Other immunity provisions are related to the judicial or educational systems as a whole. Still others are simply in place in order to protect persons with a disability or to encourage activities such as charitable acts or recreational endeavors.
Qualified immunity relates to protections provided to civil servants, law enforcement officers, and others who engage with the public and provide protection from being sued for violating a person’s civil rights. For instance, you generally cannot sue the firefighters who show up to extricate you from your crushed vehicle for ordinary negligence following a catastrophic accident even if there might have been a safer way to help you after your accident.
Another example: It can be very difficult to bring a battery case against a police officer for placing handcuffs upon a person being arrested.
In the current Virginia statutes, the study found only one instance in which the General Assembly chose to describe its protections as “absolute” immunity. This lone absolute immunity exists for members of
Even though the General Assembly may not call other forms of legal protection “absolute immunity,” as a practical matter, where any form of immunity has been granted by the legislature, that legal protection from negligence can make it very difficult if not impossible for an injured person to bring a claim.
SOVEREIGN IMMUNITY AND THE VIRGINIA TORT CLAIMS ACT
In monarchies it used to be that you could not sue the king — the sovereign head of state was immune from suit. At or after their founding, American states like Virginia adopted the same sovereign immunity protections for themselves.
To provide some relief from the impact of sovereign immunity, the General Assembly created the Virginia Tort Claims Act (VTCA). The VTCA is a law in Virginia that outlines the procedures to pursue recoveries for individuals seeking compensation for injuries or damages caused by the negligence of a state government entity or its employees.
The VTCA provides a way for people to file claims against the state government if they believe they have been harmed due to the negligent actions or omissions of government officials or agencies, including doctors, nurses, or other employees of state-run hospitals and facilities. The law places stricter requirements for timely notice and filing on plaintiffs.
It also contains a very low cap for the amount of damages that can be recovered, generally $100,000. For people who are badly injured by the negligence of a state employee, this cap amount can be less than even the medical expenses arising from the injury.
VTCA – IMPLICATIONS IN MEDICAL MALPRACTICE LAW
Claims directly against hospitals or clinics that are operated by subdivisions or branches of the Commonwealth of Virginia, such as Virginia Commonwealth University Hospital (VCU) and the University of Virginia (UVA), may fall under the sovereign immunity protections from liability afforded to the state and its agencies. When that protection is in place, the injured person’s only remedy for negligence may be through the VTCA.
However, courts have held that acts of gross negligence or intentional torts may not receive immunity protection and are not covered by the VTCA. In addition, some Virginia Supreme Court or Virginia Circuit Court cases have held that the state does not have a sufficient governmental interest in protecting attending physicians, residents, or nurses from liability for their negligence when providing patient care at Virginia medical school hospitals. Other cases have granted immunity under different circumstances. Resolution of such claims can vary significantly according to the specific facts of the case.
One thing that we have seen handling medical malpractice cases involving Virginia’s medical school hospitals is that employees working at a state hospital are not necessarily employed by the state, but rather by a private employer, or by both the state and a private employer, which can affect their immunity from a lawsuit.
CAN YOU SUE FOR NEGLIGENCE THAT OCCURS AT A VIRGINIA STATE HOSPITAL FACILITY?
The short answer is: it depends. As may be clear by now from the discussion above, the determination of whether such a claim is possible can require a very detailed analysis of who did what to whom, while working for whom, and how bad was their action. This is why an experienced medical malpractice attorney is your best advocate when considering making a claim for injuries that occur in a Virginia state hospital or one against the people providing care at a Virginia state medical facility.
VCTA FILING REQUIREMENTS
Virginia has additional notice and filing requirements that apply to cases against the Commonwealth brought under the VTCA. These requirements shorten the deadline by which the injured person must take action, so don’t wait to investigate your claim. We will help you to determine if you have a valid malpractice claim that can be pursued against the government, governmental employees or others in Virginia.
If you think you have a claim against a Virginia hospital, dentist, surgeon, physician, or nurse employed by Virginia hospital facility, call for a free medical or dental malpractice case consultation today: (703) 638-7717. Don’t delay and miss the VTCA notice or filing deadline!
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