Code of Virginia

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Code of Virginia
Title 8.01. Civil Remedies and Procedure
Chapter 21.1. Medical Malpractice

Article 1. Medical Malpractice Review Panels; Arbitration of Malpractice Claims.

§ 8.01-581.1. Definitions.

As used in this chapter:

"Health care" means any act, professional services in nursing homes, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical diagnosis, care, treatment or confinement.

"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, dentist, pharmacist, registered nurse or licensed practical nurse or a person who holds a multistate privilege to practice such nursing under the Nurse Licensure Compact, nurse practitioner, optometrist, podiatrist, physician assistant, chiropractor, physical therapist, physical therapy assistant, clinical psychologist, clinical social worker, professional counselor, licensed marriage and family therapist, licensed dental hygienist, health maintenance organization, or 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.

"Health maintenance organization" means any person licensed pursuant to Chapter 43 (§ 38.2-4300 et seq.) of Title 38.2 who undertakes to provide or arrange for one or more health care plans.

"Hospital" means a public or private institution licensed pursuant to Chapter 5 (§ 32.1-123 et seq.) of Title 32.1 or Article 2 (§ 37.2-403 et seq.) of Chapter 4 of Title 37.2.

"Impartial attorney" means an attorney who has not represented (i) the claimant, his family, his partners, co-proprietors or his other business interests; or (ii) the health care provider, his family, his partners, co-proprietors or his other business interests.

"Impartial health care provider" means a health care provider who (i) has not examined, treated or been consulted regarding the claimant or his family; (ii) does not anticipate examining, treating, or being consulted regarding the claimant or his family; or (iii) has not been an employee, partner or co-proprietor of the health care provider against whom the claim is asserted.

"Malpractice" means any tort action or breach of contract action for personal injuries or wrongful death, based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient.

"Patient" means any natural person who receives or should have received health care from a licensed health care provider except those persons who are given health care in an emergency situation which exempts the health care provider from liability for his emergency services in accordance with § 8.01-225 or 44-146.23.

"Physician" means a person licensed to practice medicine or osteopathy in this Commonwealth pursuant to Chapter 29 (§ 54.1-2900 et seq.) of Title 54.1.

"Professional services in nursing homes" means services provided in a nursing home, as that term is defined in clause (iv) of the definition of health care provider in this section, by a health care provider related to health care, staffing to provide patient care, psycho-social services, personal hygiene, hydration, nutrition, fall assessments or interventions, patient monitoring, prevention and treatment of medical conditions, diagnosis or therapy.

Code 1950, § 8-911; 1976, c. 611; 1977, c. 617; 1981, c. 305; 1986, cc. 227, 511; 1989, cc. 146, 730; 1991, cc. 455, 464; 1993, c. 268; 1994, cc. 114, 616, 651; 2001, c. 98; 2003, cc. 487, 492; 2005, cc. 482, 649, 692; 2006, c. 638; 2008, cc. 121, 157, 169, 205; 2014, c. 89; 2015, cc. 295, 306.

§ 8.01-581.2. Request for review by medical malpractice review panel; rescission of request; determination on request.

A. At any time within thirty days from the filing of the responsive pleading in any action brought for malpractice against a health care provider, the plaintiff or defendant may request a review by a medical malpractice review panel established as provided in § 8.01-581.3. The request shall be forwarded by the party making the request to the Clerk of the Supreme Court of Virginia with a copy of the Motion for Judgment and a copy of all responsive pleadings. A copy of the request shall be filed with the clerk of the circuit court, and a copy shall be sent to all counsel of record. The request shall include the name of the judge to whom the case is assigned, if any. Upon receipt of such request, the Supreme Court shall select the panel members as provided in § 8.01-581.3:1 and shall designate a panel within sixty days after receipt of the request. If a panel is requested, proceedings on the action based on the alleged malpractice shall be stayed during the period of review by the medical review panel, except that the judge may rule on any motions, demurrers, or pleas that can be disposed of as a matter of law, set the trial date after the panel has been designated and, prior to the designation of the panel, shall rule on any motions to transfer venue.

B. After the selection of the members of the review panel, the requesting party may rescind a request for review by the panel only with the consent of all parties or with leave of the judge presiding over the panel.

C. Any health care provider named as a defendant shall have the right to request a panel and, in that event, shall give notice of its request to the other health care providers named in the motion for judgment as well as to the plaintiff and his counsel of record. When a request for a medical review panel is made by any party, a single panel shall be designated and all health care providers against whom a claim is asserted shall be subject to the jurisdiction of such panel. The provisions of this subsection shall not prohibit the addition of parties pursuant to § 8.01-581.2:1.

Code 1950, § 8-912; 1976, c. 611; 1977, c. 617; 1982, c. 151; 1984, cc. 443, 777; 1986, c. 227; 1989, c. 561; 1993, c. 928; 1994, c. 38; 1995, c. 367; 2000, c. 213; 2001, c. 252.

§ 8.01-581.2:1. Additional parties.

The judge of the circuit court hearing the case may grant leave to amend the request for a review panel to add additional parties or causes of action in furtherance of the ends of justice except where (i) the request for leave to amend is made less than ten days before the date set for the review panel to convene or for the hearing or (ii) the judge finds that the request for leave to amend is without merit. If leave to amend is granted, the judge may, upon motion of either party, stay the review panel proceedings or continue the trial, extend the time for completion of discovery, filing of pleadings and other procedural limitations periods, or enter such other orders as are appropriate to avoid prejudice to the parties and to avoid unnecessary delay and duplication in the proceedings.

The statute of limitations as to any party added shall be tolled from the date of the request until completion of the panel proceedings. Leave to add additional parties to the review panel proceeding shall not be granted if the judge finds that the applicable statute of limitations has expired with respect to the new or additional parties or causes of action.

1986, c. 227; 1993, c. 928.

§ 8.01-581.3. Composition, selection, etc., of panel.

The medical review panel shall consist of (i) two impartial attorneys and two impartial health care providers, licensed and actively practicing their professions in the Commonwealth and (ii) the judge of a circuit court in which the action was filed, who shall preside over the panel. The judge shall have no vote and need not attend or participate in the deliberations. The medical review panel shall be selected by the Supreme Court from a list of health care providers submitted by the Board of Medicine and a list of attorneys submitted by the Virginia State Bar. In the selection of the health care provider members, the Court shall give due regard to the nature of the claim and the nature of the practice of the health care provider.

Code 1950, § 8-913; 1976, c. 611; 1977, cc. 202, 617; 1983, c. 208; 1984, c. 777; 1986, c. 227; 1993, c. 928; 1994, c. 384.

§ 8.01-581.3:1. Completion of discovery; hearing date; notification to parties and panel members; oath of panel members.

At the time that the panel is designated, the Supreme Court shall advise the clerk of the circuit court in which the matter was filed of the names of the panel members.

Except for good cause shown, the date for completion of discovery shall not be set beyond 120 days from the date on which the panel was requested. Within the period set for the taking of discovery and upon consultation with the panel members, the judge shall notify the parties of the date set for a hearing by the review panel, if any, or the date on which the panel will convene. Such date shall not be set sooner than ten days after the date for completion of discovery. Upon completion of discovery, the clerk of the circuit court shall notify the parties of the name, address and professional practice of each panel member and shall also notify the panel members, in writing, of their appointment.

The written notification to the panel members shall include the definitions of "impartial attorney" and "impartial health care provider" as contained in § 8.01-581.1 and a copy of the oath to which the panel members will be required to subscribe when the panel convenes. The oath shall be as follows:

"I do solemnly swear (or affirm) that I have no past or present relationship with the parties nor am I aware of anything that would prevent me from being impartial in my deliberations. I further swear (or affirm) that I will render an opinion faithfully and fairly on the basis of the evidence presented, applying any professional expertise I may have, giving due regard to the nature of the claim and the nature of the practice of the health care provider." A panel member who, for any reason, could not take the oath of impartiality shall promptly notify the judge presiding over the panel, in writing, of such inability. The judge shall notify the Supreme Court, which shall then select and notify another panel member in place of and practicing the same profession as the disqualified member.

1986, c. 227; 1993, c. 928.

§ 8.01-581.4. Submission of evidence to panel; depositions and discovery; duties of chairman; access to material.

The evidence to be considered by the medical review panel shall be promptly submitted by the respective parties, upon appointment of the panel, to each member of the panel in written form. Either party, upon request, shall be granted a hearing before the panel. The evidence may consist of medical charts, X-rays, laboratory tests, excerpts of treatises, and depositions of witnesses, including parties, and, when a hearing is held, oral testimony before the panel. The parties shall submit to the panel members only those portions of deposition transcripts, medical records, treatises and other documents which are relevant to the claim. However, upon request of the judge, a party shall produce all or part of any such document submitted. At the discretion of the judge, additional depositions of parties and witnesses may be taken, or other additional discovery may be had, at any time prior to hearing by any party. The judge shall rule on the admissibility of all or any part of a deposition offered as evidence at the hearing. Either party may have discovery pursuant to procedures set out in Part Four of the Rules of the Supreme Court of Virginia prior to appointment of the panel or thereafter in the discretion of the judge.

Process shall be returnable to the office of the clerk where the action was filed and shall issue under the style of the case as filed. Process for discovery shall issue upon application to the clerk. Any such discovery and any depositions taken for purposes of discovery or otherwise, under this section, may be used in the action filed for any purpose otherwise proper under Part Four of the Rules of Court. The judge of the panel shall advise the panel relative to any legal question involved in the review proceeding and shall prepare the opinion of the panel as provided in § 8.01-581.7. All parties shall have full access to any material submitted to the panel.

Code 1950, § 8-914; 1976, c. 611; 1977, c. 617; 1979, c. 261; 1984, c. 777; 1986, c. 227; 1993, c. 928.

§ 8.01-581.4:1. Assembly of record.

Upon conclusion of deliberations and rendering of an opinion by the panel, all documentary evidence submitted to the panel, a transcript of the ore tenus hearing, if any, and a copy of the written opinion of the panel shall be filed in the office of the clerk. The record shall be maintained until the action is completed in the circuit court. Upon completion of the action, the clerk of the trial court shall include a copy of the panel record along with the record of the case.

1986, c. 227; 1993, c. 928.

§ 8.01-581.4:2. Removal of record for inspection and copying; notice.

Any party may, upon notice to all other parties or their counsel, remove any book, record or document which has been filed with the clerk or has become a part of the permanent record filed with the Executive Secretary for purposes of inspection and copying. The party removing the documents shall give an appropriate receipt to the clerk or Executive Secretary and shall be responsible for the return of the materials within ten days.

1986, c. 227.

§ 8.01-581.5. When hearing to be held; notice to parties.

The plaintiff or defendant may request the medical review panel to hold a hearing on any claim referred to the medical review panel, in which case the medical review panel shall conduct a hearing thereon in accordance with § 8.01-581.6 after notice to the parties by means adequate to ensure their presence at the time and place of the hearing.

Code 1950, § 8-915; 1976, c. 611; 1977, c. 617; 1979, c. 261; 1984, c. 777; 1993, c. 928.

§ 8.01-581.6. Conduct of proceedings.

In the conduct of its proceedings:

1. The testimony of the witnesses shall be given under oath. Members of the medical review panel, once sworn, shall have the power to administer oaths.

2. In the event a hearing is held, the parties are entitled to be heard, to present relevant evidence, and to cross-examine witnesses to the extent necessary to enable the panel to render an opinion as specified in § 8.01-581.7. The rules of evidence need not be observed. The medical review panel may proceed with the hearing and shall render an opinion upon the evidence produced, notwithstanding the failure of a party duly notified to appear.

3. The medical review panel may issue or cause to be issued, on its own motion or on application of any party, subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence. Subpoenas so issued shall be served and, upon application by a party or the panel to a court of proper venue having jurisdiction over a motion for judgment based on such claim, enforced in the manner provided for the service and enforcement of subpoenas in a civil action. All provisions of law compelling a person under subpoena to testify are applicable.

4. [Repealed.]

5. The hearing shall be conducted by all members of the medical review panel unless the parties otherwise agree. A majority of the members present may determine any question and may render an opinion.

6. The medical review panel members may apply their expertise in evaluating the evidence giving due regard to the nature of the claim and the nature of the practice of the health care provider, whether expert medical opinions are presented by the parties or not.

Code 1950, § 8-916; 1976, c. 611; 1977, c. 617; 1979, c. 261; 1984, c. 777; 1986, c. 227.

§ 8.01-581.7. Opinion of panel.

A. Within thirty days, after receiving all the evidence, the panel shall have the duty, after joint deliberation, to render one or more of the following opinions:

1. The evidence does not support a conclusion that the health care provider failed to comply with the appropriate standard of care;

2. The evidence supports a conclusion that the health care provider failed to comply with the appropriate standard of care and that such failure is a proximate cause in the alleged damages;

3. The evidence supports a conclusion that the health care provider failed to comply with the appropriate standard of care and that such failure is not a proximate cause in the alleged damages; or

4. The evidence indicates that there is a material issue of fact, not requiring an expert opinion, bearing on liability for consideration by a court or jury.

B. If the review panel's finding is that set forth in subdivision 2 of subsection A of this section, the panel may determine whether the plaintiff suffered any disability or impairment and the degree and extent thereof.

C. The opinion shall be in writing and shall be signed by all panelists who agree therewith. Any member of the panel may note his dissent. All such opinions shall be filed with the clerk of the court in which the action is pending and mailed to the plaintiff and the defendant within five days of the date of their rendering. However, this subsection shall not be construed to preclude the panel from announcing the opinion in the presence of the parties or their counsel, provided a signed written opinion is subsequently mailed as provided in this subsection.

Code 1950, § 8-917; 1976, c. 611; 1977, c. 617; 1986, c. 227; 1993, c. 928.

§ 8.01-581.7:1. Limitation on panel opinion.

Unless the parties otherwise agree, any opinion of the panel shall be rendered no later than six months from the designation of the panel unless the judge shall extend the period one time, not to exceed ninety days, upon a showing of extraordinary circumstances. If the opinion of the panel is not rendered within the time provided, any panel opinion rendered subsequently shall be inadmissible as evidence unless the failure of the panel to render a decision within the time provided was caused by delay on the plaintiff's part.

1981, c. 327; 1993, c. 928.

§ 8.01-581.8. Admissibility of opinion as evidence; appearance of panel members as witnesses; immunity from civil liability.

An opinion of the medical review panel shall be admissible as evidence in the action brought by the plaintiff, but shall not be conclusive. Either party shall have the right to call, at his cost, any member of the panel, except the judge, as a witness. If called, each witness shall be required to appear and testify. The panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this chapter.

Code 1950, § 8-918; 1976, c. 611; 1977, c. 617; 1978, c. 406; 1993, c. 928.

§ 8.01-581.9. Repealed.

Repealed by Acts 1993, c. 928.

§ 8.01-581.10. Per diem and expenses of panel.

Each member of the medical review panel shall be reimbursed for his actual and necessary expenses and shall be paid at a rate of fifty dollars per diem for work performed as a member of the panel exclusive of time involved if called as a witness to testify in court. Per diem and expenses of the panel shall be borne by the parties in such proportions as may be determined by the chairman in his discretion.

Code 1950, § 8-920; 1976, c. 611; 1977, c. 617; 1984, c. 777.

§ 8.01-581.11. Rules and regulations.

The Chief Justice of the Supreme Court of Virginia shall promulgate all necessary rules and regulations to carry out the provisions of this chapter.

Code 1950, § 8-921; 1976, c. 611; 1977, c. 617.

§ 8.01-581.11:1. Objections not waived by participation.

Participation in any medical malpractice review panel proceeding pursuant to this article shall not constitute a waiver by a party to the proceedings of any objections to the review panel procedure.

1986, c. 227.

§ 8.01-581.12. Arbitration of medical malpractice claims.

A. Persons desiring to enter into an agreement to arbitrate medical malpractice claims which have then arisen or may thereafter arise may submit such matters to arbitration under the provisions of Chapter 21 (§ 8.01-577 et seq.) of this title and an agreement to submit such matters shall be binding upon the parties if the patient or claimant or his guardian, conservator, committee or personal representative is allowed by the terms of the agreement to withdraw therefrom, and to decline to submit any matter then or thereafter in controversy, within a period of at least sixty days after the termination of health care or, if the patient is under disability by reason of age and at the time of termination without a guardian who could take such action for him, or if he is incapacitated and without a guardian or conservator who could take such action for him, or if such termination is by death or if death occurs within sixty days after termination, then within a period of at least sixty days after the appointment and qualification of the guardian, conservator or committee or personal representative.

B. Proof of agreement to arbitrate and submission of a medical malpractice claim pursuant thereto shall be in accordance with Chapter 21 of this title, and a medical malpractice panel appointed under this article may be designated to arbitrate the matter, either by the arbitration agreement or by the parties to the agreement.

C. An insurer of a health care provider shall be bound by the award of an arbitration panel or arbitrators acting pursuant to a good faith submission hereunder to the extent to which it would have been obligated by a judgment entered in an action at law with respect to the matter submitted; provided, that such insurer has agreed prior to the submission to be bound by the award of such arbitration panel or arbitrators.

Code 1950, § 8-922; 1976, c. 611; 1977, c. 617; 1997, c. 801.

§ 8.01-581.12:1. Repealed.

Repealed by Acts 1979, c. 325.

§ 8.01-581.12:2. Article not applicable to actions arising prior to July 1, 1976.

(a) The provisions of this article shall not apply to any cause of action which arose prior to July 1, 1976, and as to which the statute of limitations had not run prior to that date, regardless of the date any suit brought thereon is filed. Notwithstanding the foregoing, in actions which accrued prior to July 1, 1976, if a claimant has filed notice under § 8.01-581.2 of this article, his cause of action and any defense thereto shall be governed by this article.

(b) The term "has filed," as used in this section, is deemed to include the filing of notice under § 8.01-581.2 (or under repealed § 8-912) of this article where such filing occurred prior to the expiration of any applicable statute of limitation when the cause of action arose prior to July 1, 1976. This subsection (b) shall be applied retroactively to such causes of action.

Code 1950, § 8-924; 1977, c. 422; 1978, c. 262.