Legal Memorandum: Statute of Limitations and Malpractice Claims

Issue: Under Virginia law, is there an exception to the statute of limitations in healthcare provider actions where fraud is involved or where sexual abuse is involved?

The two-year limitations period may be extended for malpractice claims against healthcare providers if the case involves “fraud, concealment or intentional misrepresentation [that] prevented discovery of the injury within the two-year period, for one year from the date the injury [was] discovered or, by the exercise of due diligence, reasonably should have been discovered.”  Id. at (B) (emphasis added).  If sexual abuse is perpetrated on someone during the disability of infancy or incapacity, the limit is extended from the later of when the disability is removed or when the fact and its causal connection is reported to a physician, psychologist, or clinical psychologist.  Va. Code Ann. § 8.01-249(6) (2014); see also Va. Code Ann. §§ 8.01-243(D) (2014) (limiting to 20 years total); 8.01-229(A)(2) (2014) (regarding infancy). 

The extension created in § 8.01-249(6) came through a constitutional amendment and subsequent legislation after the supreme court had strictly imposed the normal two-year statute for someone abused during childhood.  Kopalchik v. Catholic Diocese of Richmond, 274 Va. 332, 336-38, 645 S.E.2d 439, 441-42 (2007) (citations omitted).  In Kopalchik, the supreme court held that the diocese could not claim any substantive property right because it was not a “natural person.”

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