Burnett & Williams

Personal Injury Cases and Virginia Statute of Limitations

Personal Injury Cases and Virginia Statute of Limitations


Every state has laws, typically called limitations on actions or statutes of limitations that provide a cut off for the bringing of a legal claim. These limitations are designed to give aggrieved parties time to identify, investigate, and possibly resolve claims before resort to our courts while also giving potential defendants relief from the potential exposure of an unfiled claim. Time limits can vary dramatically from state to state for the same kind of case. One state may have a one year statute of limitations for a particular kind of claim while another state may allow five years for the same kind of action to be filed. Accordingly, it is important to analyze the statute of limitation for the state where a legal action would likely be brought.

In Virginia, most claims for personal injury have a two year statute of limitations. That is, a lawsuit must be filed within two years of the subject injury or the claim will be forever barred. The rule on its face sounds simple, but there are so many exceptions, it is usually a good idea to gain certainty by having a lawyer determine the actual filing of deadline for any claim. Some exceptions are simple, like the two year statute of limitations for a child in a car accident not starting to be counted until the child turns 18. Others are not so simple, as with a medical malpractice claim that could be subject to the “continuing treatment rule’, which provides that the two year time frame does not start to run until the last day the patient/claimant received treatment from the offending health care provider that was continuous and uninterrupted for the malady that health care provider is alleged to have negligently caused. Many arguments can arise over the meaning of continuous and uninterrupted. Expert legal advice is usually needed to get a reliable answer. Another exception provides that the statute period does not begin to run until the time when a foreign object negligently left in the body is discovered. The statute of limitations does not count during the time a person is deemed to be under a legal disability and without a court appointed guardian or committee. Complicating matters further, statutes of limitations are different for different kinds of claims, e.g. one year for most forms of fraud, three years for an oral contract, and five years for a written contract. The list goes on.

A person with a potential claim is always wise to promptly get the advice of an experienced attorney as to the last date when a claim may be filed as missing such a date usually means the claim may be forever barred when the issue is raided by the defendant.