What to do if a doctor performed a procedure different thfrom the one we were told he was going to perform?

UPDATED: Oct 16, 2014

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What to do if a doctor performed a procedure different thfrom the one we were told he was going to perform?

About 10 years ago my wife had a gastric bypass. We were told at the time the procedure would be a RnY procedure. She has had multiple continued problems that have worsened over the last couple of years with acid reflux etc. She has been sent to another bariatric surgeon who has stated to us that the former physician wrote in his notes he had performed a RnY. However, the current physician has performed several tests and determined the procedure performed was not what we were told and in turn has led to all of her issues. Do we have a case and what are the statute of limitations for something like this? We just found out the procedure was wrong within the last week or so.

Asked on October 16, 2014 under Malpractice Law, Virginia


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

Virginia is one of the states that strictly adheres to their statute of limitations of two (2) from the date of the malpractice rather than from the "discovery" of the malpractice. But it does have a "continuous treatment" rule as well as other exceptions to the two-year rule (cases involving minors or mentally incompetent people  and cases where the injury was fraudulently concealed from the person).   Please speak with a lawyer who understands the law there and specializes in it.  Good luck. 

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