As of July 1, 2025, a new Virginia law makes it easier for victims of medical malpractice and other vulnerable individuals to hold employers accountable for the wrongful actions of their employees. This law represents a major change in how courts will look at employer responsibility, particularly in cases involving patients, nursing home residents, and other people who rely heavily on those providing them care.
If you or a loved one has ever experienced mistreatment at the hands of a medical provider or care facility, this law could dramatically improve your ability to seek justice. At Fishwick & Associates, we are very experienced in medical malpractice cases, and we can help break down for you what the law means, why it was passed, and how it affects future malpractice cases.
Why Did Virginia Need a New Law? Background of Virginia Code § 8.01-42.6
Until very recently, it has been difficult in Virginia to sue hospitals, nursing homes, and other employers for the most serious misconduct of their employees. Under traditional legal theories, an employer can only be held responsible for an employee’s actions if those actions happened within the “scope of employment.” In other words, the bad conduct had to be part of the employee’s assigned duties.
That rule often created unjust results. For example, if a nurse or aide committed a violent or abusive act against a patient, courts sometimes ruled that the conduct was “outside the scope” of employment because it was not part of the employee’s job to assault patients. This meant the hospital or nursing home could escape liability, leaving only the individual employee (who may not have any financial resources) responsible for damages and the victim without adequate compensation.
One Virginia Supreme Court case from 2019, Our Lady of Peace, Inc. v. Morgan, illustrates why this rule often created unjust results. In that case, an 85-year-old nursing home resident was bedridden, partially paralyzed, and unable to cry out for help. A nursing assistant, whose job included bathing residents and changing their clothes, entered her room under the pretense of providing care. Instead, he molested and raped her.
The resident’s estate sued both the nursing assistant and the nursing home. A jury found both liable and awarded damages. But on appeal, the Virginia Supreme Court reversed that decision. The Court explained that employers are only vicariously liable when an employee’s wrongful act happens while carrying out a job-related service. Because rape is so far outside the duties of a nursing assistant, the Court ruled the nursing home could not automatically be held responsible.
The New Law Significantly Expands Victims’ Rights. But How Does Virginia § 8.01-42.6 Work?
Virginia lawmakers responded to the problem exemplified by Our Lady of Peace by passing a new law that changes how courts analyze these situations. Below we break down how this new law operates in civil litigation.
Who is protected?
The new law applies when a “vulnerable victim” is harmed by an employee. Vulnerable victims, as defined by the new law, broadly include many classes of people:
- Patients of health care providers (such as hospitals, clinics, or nursing homes)
- People under a legal disability
- Residents of assisted living facilities
- Passengers of common carriers (like buses or certain transportation services)
- Passengers of nonemergency medical transportation services
- Customers of spas or massage therapy businesses
For these groups, the law creates a new path for holding employers liable.
What must be proven?
Under the new law, the jury can hold an employer liable if the plaintiff shows:
- The wrongful conduct occurred when the employee was reasonably likely to be in contact with the victim and it caused injury or death;
- The employer failed to use reasonable care to either prevent the employee from harming the victim or to control the employee, creating an unreasonable risk of harm;
- The employer knew or should have known that it had the ability to control the employee; and
- The employer knew or should have known that controlling the employee was necessary to prevent harm.
These four elements shift the focus away from whether the employee’s act was part of their job and onto whether the employer acted responsibly in supervising and controlling its workers. Importantly, the employer doesn’t get off the hook just because the employee’s wrongful act wasn’t part of their official duties.
Who makes decisions under the new law?
One major shift of the new law is that now the jury, rather than the judge, is mostly responsible for deciding whether the employer can be held responsible.
As we saw in the Our Lady of Peace case above, whether the employee was within the scope of employment is often subject to judicial determination. Under the new law, however, these determinations are explicitly questions of fact for the jury. This change is important because juries are often more sympathetic to victims and less likely to accept technical legal arguments that shield institutions from responsibility.
How does the new law benefit people?
Patients in hospitals, residents in nursing homes, and clients in assisted living facilities depend on staff for basic needs and safety. The new law recognizes that employers are in the best position to prevent harm by properly hiring, supervising, and disciplining employees.
Knowing they can be held liable, hospitals, nursing homes, and other care providers now have stronger incentives to monitor staff closely, respond quickly to complaints, and put real protections in place for patients.
Moreover, in many malpractice or abuse cases, the individual employee may not have the assets or insurance to cover a judgment. The employer (often a large institution, like a hospital) is the one with resources to pay damages. By allowing juries to hold employers accountable, the law ensures victims and their families have a realistic chance of receiving fair compensation.
Does the new law apply to all cases?
Unfortunately, the new law applies only to incidents that occurred on or after July 1, 2025. If a wrongful act occurs before that date, the old rules will still apply, and the plaintiff will not be able to utilize the new law’s protections, even if they file a lawsuit after July 1, 2025.
Are You or a Loved One a Victim of Medical Malpractice? Contact Fishwick & Associates to Discuss Your Legal Options
If you or a loved one suffered harm in a medical setting after July 1, 2025, or were otherwise harmed as a vulnerable victim, you have stronger legal protections in Virginia thanks to the Virginia Code § 8.01-42.6. However, proving these cases will still require careful legal work, as the law mandates that plaintiffs prove specific elements. And, because the law is so new, employers will surely do all that they can to avoid liability under it.
Experienced Virginia medical malpractice attorneys serving Roanoke and Southwest Virginia, like Fishwick & Associates, can investigate these issues, build a strong case, and present it effectively to a jury. Our team is dedicated to providing comprehensive legal support to vulnerable victims throughout Virginia. To schedule your confidential consultation, complete our online contact form or call us at (540) 345-5890.
References
Va. Code § 8.01-42.6
Our Lady of Peace, Inc. v. Morgan, 297 Va. 832, 832 S.E.2d 15 (2019)
