Med-mal damages cap fight held over until 2010 legislative session

By Peter Vieth
Published: January 12, 2009

Despite the introduction of a bill to boost the Virginia medical malpractice damages cap, it looks like the fight over a cap increase will be delayed until the 2010 legislative session.

Legislation introduced for the General Assembly session that starts this Wednesday would raise the cap on med-mal recoveries from $2 million to $2.75 million. The bill proposed by Sen. Henry Marsh, D-Richmond, also would provide annual increases to the cap pegged to increases in the cost of medical care.

Nevertheless, Marsh’s cap increase proposal appears dead on arrival for the 2009 session because the Virginia Trial Lawyers Association has decided not to lobby for the increase until 2010.

“The VTLA board is aware that this is not the year for an all-out push to increase the cap,” said Jack L. Harris, executive director of the VTLA. Harris said legislators are unwilling to take on the controversial cap issue while they deal with the stumbling economy and a $3 billion budget shortfall.

Lawyer and medical insurance lobbyist Theodore F. Adams III of Richmond agrees lawmakers want to take a pass on the issue in 2009. “That’s the message I have got from every legislator that I’ve spoken to,” he said.

On its Web site, the Medical Society of Virginia calls the trial lawyers’ retreat an “exciting victory,” thanking doctors for their persistent opposition to a cap increase.

“VTLA attributes this decision to communication received from legislators that this is not the year to seek legislation to alter the malpractice cap. In addition, they relayed that the education that the physician community provided to legislators during the off-season was part of their reasoning,” reported the MSV.

W. Scott Johnson, a lobbyist for the MSV, said the doctors are not taking Marsh’s bill lightly, even though Marsh may be simply trying to stay in control of the issue. “Until it’s dead, we’re not going to rest,” Johnson said.

Johnson emphasized that preserving the cap is the MSV’s “number one priority issue.”

Marsh’s proposal, Senate Bill 843, would increase the total amount recoverable in a medical malpractice action to $2.75 million on July 1, 2009. Each July thereafter, the cap would increase by the annual percent change in the medical care component of the published Consumer Price Index. The bill has been referred to the Senate Courts of Justice Committee, where Marsh is chairman.

Regardless of the prospects for Marsh’s legislation in 2009, Harris promised the VTLA will be pushing for a cap increase of some sort in 2010, starting soon after the 2009 session ends. Legislators, he observes, will be most receptive to a compromise plan that has been negotiated between the opposing camps.

One legislative leader hopes to see a more comprehensive approach to address the tension between doctors and trial lawyers.

Del. David B. Albo, R-Fairfax, chairman of the House Courts of Justice Committee, says that a single-minded push for a cap increase would ignore other issues that affect medical care.

Albo said the Assembly should not consider cap legislation without also dealing with low insurance payments to doctors, increasing hospital insurance requirements, and skimpy Medicaid reimbursements. “It’s a lot more complicated than just raising the cap,” said Albo. “I won’t let a cap increase pass that doesn’t address other issues.”

One group that will not be weighing in on the cap increase is the Virginia Association of Defense Attorneys, which includes the lawyers who defend doctors in medical malpractice actions. VADA President Stanley P. Wellman of Richmond prefers to leave advocacy on the cap issue to the doctors and their insurers. “We have decided as an organization not to take a formal position on that issue,” he said.

Virginia Lawyers Weekly

Med-mal damages cap fight held over until 2010 legislative session

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