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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 117460
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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I am wondering if there is a statute of limiations regarding

Customer Question

I am wondering if there is a statute of limiations regarding issues with LapBand? I had a LapBand placed in Jan of 2010 and it was not placed correctly, leading to years of vomiting, additional surgery x 2 and many trips to the Dr for help. The band slipped out of place 3 times and stopped being a tool for weight loss, leading to 60lb of weight gain. I had it removed in March 2014 because it was no longer helping and although I was continuing to vomit.
Submitted: 2 years ago.
Category: Legal
Expert:  Law Educator, Esq. replied 2 years ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
The statute of limitations depends on the state. This would fall under the product liability statute of limitations and that depends on proving the product was defective.
If the band was not proven to be defective, then it could be negligence by the doctor if they did not install it correctly and that would have a different statute of limitations.
So what state are you located in?
Customer: replied 2 years ago.
I had the band placed in VA but I think the surgeon placed it incorrectly.
Expert:  Law Educator, Esq. replied 2 years ago.
Thank you for your reply.
Under VA law a medical malpractice action must be brought within two years from the date the cause of action accrued, which is the date of injury. See: Va. Code Ann. §§ 8.01-230 and 8.01-243(A).
Furthermore, continuing treatment for the same conditions tolls the statute until treatment ends. See: Grubbs v. Rawls, 235 Va. 607, 369 S.E.2d 683 (1988).
So, up until it was discovered to be installed wrong, you have a chance in VA with their statute of limitations, BUT what you will need under VA law to sue for malpractice is a doctor who is qualified in that specialty to testify the band was improperly installed. See: Perdieu v. Blackstone Family Practice Center, Inc., 264 Va. 408, 568 S.E.2d 703 (2002).
So, under the VA law, since this was continuing treatment, there is a chance you still have a little time left to file suit for malpractice.