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High court to review med-mal cap

The Supreme Court of Virginia has agreed to hear a challenge to the constitutionality of Virginia’s cap on med-mal damages.

On June 11, the court awarded an appeal in Pulliam v. Coastal Emergency Services of Richmond, (Record No. 980659), a Petersburg case in which a wrongful death plaintiff saw his $2 million verdict cut in half under Virginia Code Sect. 8.01-581.15.

That statute limits damages in medical malpractice cases to $1 million. The cap was upheld nearly a decade ago in Etheridge v. Medical Center Hosps., 237 Va. 87 (1989).

In Pulliam, the plaintiff’s wife, a 41-year-old Prince George County schoolteacher, died of bacterial pneumonia and bacteremia in 1995. The plaintiff alleged that his wife’s condition could have been treated with antibiotics, but that an emergency room physician employed by the defendant misdiagnosed the wife with the flu and sent her home, thus missing the “window of opportunity” to save her life.

A jury awarded the husband $2,045,000 in his suit against the doctor and his employer, but the trial court cut that award to $1 million under the cap.

The plaintiff is represented by Petersburg lawyers Charles H. Cuthbert Jr. and Margaret C. Broaddus. In their appeal to the Supreme Court, Cuthbert and Broaddus argue that the $1 million cap violates the Virginia Constitution’s prohibition against special legislation because it creates an “elite” class of tortfeasors who get special treatment.

Virginia’s med-mal cap has been in existence for 22 years and was statutorily raised in 1983, according to Cuthbert. “It has not changed since that time despite overwhelming evidence that the cost of medical care has increased dramatically since that time,” he said.

The Virginia Trial Lawyers Association and the American Trial Lawyers Association have joined to file an amicus brief in support of the plaintiff in Pulliam. VTLA President Jeffrey A. Breit has made action on the cap a centerpiece of his agenda. (See 12 VLW 1357, April 20, 1998). Etheridge was a 4-3 decision, and only two of the justices who voted to uphold the cap still sit on the court today.

Richmond lawyer Joseph P. McMenamin, who represents the doctor and his employer, predicted that the Supreme Court’s “devotion to the principle of stare decisis” would prompt it to reaffirm Etheridge.

But a change in the composition of the court occasionally can lead to a change in course.

In 1989, the Virginia Supreme Court decided in Scarpa v. Melzig, 237 Va. 509 (1989), that a cause of action for “wrongful conception” arising from a botched surgical sterilization arises on the date the allegedly negligent sterilization was performed, not when the woman later becomes pregnant.

But the high court took another look at the issue in 1997, and “with great reluctance” expressly overruled the “wrongly decided” Nunnally v. Artis (VLW 098-6-089), the court said an action for “wrongful conception” accrues on the date a woman becomes pregnant, not on the date of the allegedly ineffective sterilization procedure.

Three of the court’s more senior members dissented in Nunnally, saying the “present majority” had “chosen to inject instability into the law of the Commonwealth.”

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