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Michael Phelan
Michael Phelan
Attorney • (866) 249-3164

Virginia now has a Discovery Rule for Medical Device Cases

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There is good news for Virginia victims of defective medical devices.  In the past, Virginia’s harsh statute of limitations (SOL) prevented some victims of defective products from exercising their Seventh Amendment rights because the claim was time barred before the victim even knew he or she was injured or what caused the injury. Under Virginia law, every action for personal injury shall be brought within two years after the cause of action accrues.  Va. Code Sec. 8.01-243 (A).  The general rule is that Virginia does not follow a discovery rule.  Unless there is a statutory exception, the cause of action accrues when the plaintiff is first injured, regardless of when the plaintiff discovers the injury or the cause of the injury.  This statutory format produces grossly unfair results in many toxic exposure and products liability cases.

Over the years, the Virginia General Assembly carved out statutory exceptions to the SOL for fraud, asbestos, sexual abuse and breast implant cases.  See Va. Code Section 8.01-249.  Effective July 1, 2016, Virginia enacted a statutory exception for medical device cases.  “In products liability actions against parties other than health care providers…for injury to the person resulting from or arising as a result of the implantation of any medical device, [the cause of action shall be deemed to accrue] when the person knew or should have known of the injury and its causal connection to the device.”  Id. at 8.01-249 (9) (2016 Supp.).

For additional information about Virginia products liability law, please contact Michael Phelan.