COASTAL EMERGENCY SVCS. OF
RICHMOND, INC. et al.
January 8, 1999
Record No. 980659
KARL B. PULLIAM, EXECUTOR OF THE ESTATE OF
ELNORA R. PULLIAM
COASTAL EMERGENCY SERVICES OF RICHMOND, INC.,
FROM THE CIRCUIT COURT OF THE CITY OF
James F. D’Alton, Jr., Judge
Present: Carrico, C.J., Compton, Hassell, Keenan,
Koontz, and Kinser, JJ., and Poff, Senior Justice
OPINION BY CHIEF JUSTICE HARRY L. CARRICO
In this appeal, we are called upon to consider
again the constitutionality of the medical malpractice cap
imposed by Code Sect. 8.01-581.15.  We
previously upheld the constitutionality of the cap in Etheridge
v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525
(1989). Two other issues involving the cap become pertinent if we
reaffirm Etheridge. Because we conclude that the medical
malpractice cap does not violate any constitutional guarantees,
we will uphold the cap’s constitutionality and reaffirm Etheridge.
In a motion for judgment filed below, the
plaintiff, Karl B. Pulliam, Executor of the Estate of Elnora R.
Pulliam, sought damages of $2,000,000 from the defendants,
Coastal Emergency Services of Richmond, Inc. (Coastal) and its
agent, Dr. Thomas Anthony DiGiovanna (Dr. DiGiovanna), for his
alleged negligence in the death of Mrs. Pulliam.
The jury returned a verdict in favor of the plaintiff against
both defendants in the sum of $2,045,000, plus interest from the
date of Mrs. Pulliam’s death.
Upon motion of the defendants, the trial court
reduced the verdict to $2,000,000, the amount sued for, and,
applying the medical malpractice cap, further reduced the verdict
to $1,000,000 and entered judgment against both defendants in
that amount. Holding that prejudgment interest is subject to the
cap, the trial court disallowed the jury’s award of interest
running from the date of Mrs. Pulliam’s death. We awarded
the plaintiff this appeal.
The record shows that Coastal was created to
provide emergency physicians to staff emergency departments in
hospitals and that it contracts with hospitals for this purpose.
On October 27, 1989, Coastal contracted with Southside Regional
Medical Center (Southside Regional) in Petersburg to provide
"at least five Physicians . . . to render
professional and administrative services in [Southside’s
Emergency] Department on a full-time basis."
Coastal recruits doctors to work in emergency
departments "from a number of avenues." On October 12,
1994, Coastal contracted with Dr. DiGiovanna "to provide
services on and during the days and hours scheduled by
[Coastal]" and assigned him to Southside Regional.
The record shows further that about 3:55 a.m.
on December 15, 1995, Mrs. Pulliam arrived at the emergency room
of Southside Regional complaining of "legs aching." She
had been diagnosed with influenza two days earlier in the office
of her private physician. At Southside Regional, she was examined
by Dr. DiGiovanna. About 5:00 a.m., Dr. DiGiovanna discharged
Mrs. Pulliam after prescribing a muscle relaxant and giving her
printed instructions on influenza and additional instructions
concerning bed rest.
Shortly after 11:00 a.m. the same day, Mrs.
Pulliam returned to the emergency room of Southside Regional
complaining of general weakness, particularly in her lower
extremities. Following a physical examination by Dr. Boyd Roy
Wickizer, Jr., Mrs. Pulliam was started on intravenous fluids and
subjected to a CT scan and a lumbar puncture. 
Thereafter, she was transferred to the intensive care unit, where
her condition worsened. She was pronounced dead at 9:08 p.m. An
autopsy revealed that the cause of death was bacterial pneumonia
and bacteremia. She was survived by her husband, who is the
executor of her estate, and a son.
A. Constitutionality of
Medical Malpractice Cap.
The plaintiff’s assignment of error on
this point states that "[a]s a matter of law, the trial
court erred in failing to conclude that the cap on medical
malpractice awards is unconstitutional as applied to
Coastal and to Dr. DiGiovanna."  In
considering this assignment of error,
we adhere to the well-settled principle
that all actions of the General Assembly are presumed to be
constitutional. This Court, therefore, will resolve any
reasonable doubt regarding a statute’s constitutionality
in favor of its validity. Any judgment as to the wisdom and
propriety of a statute is within the legislative prerogative,
and this Court will declare the legislative judgment null and
void only when the statute is plainly repugnant to some
provision of the state or federal constitution.
Supinger v. Stakes, 255 Va. 198, 202,
495 S.E.2d 813, 815 (1998) (citations and interior quotation
In Etheridge, we rejected challenges to
the constitutionality of the medical malpractice cap based upon
contentions that the cap "violates the Virginia
Constitution’s due process guarantee, jury trial guarantee,
separation of powers doctrine, prohibitions against special
legislation, and equal protection guarantee, as well as certain
parallel provisions of the Federal Constitution." 237 Va. at
92, 376 S.E.2d at 527. The plaintiff makes the same challenges
here, but amplifies the arguments in several respects. 
It is clear that we cannot grant the plaintiff
relief without overruling Etheridge. Immediately,
therefore, the doctrine of stare decisis is
In Virginia, the doctrine of stare decisis
is more than a mere cliche. That doctrine plays a significant
role in the orderly administration of justice by assuring
consistent, predictable, and balanced application of legal
principles. And when a court of last resort has established a
precedent, after full deliberation upon the issue by the
court, the precedent will not be treated lightly or ignored, in
the absence of flagrant error or mistake.
Selected Risks Ins. Co. v. Dean, 233 Va.
260, 265, 355 S.E.2d 579, 581 (1987) (emphasis added).
The inquiry becomes, therefore, whether
flagrant error or mistake exists in the Etheridge
decision. The plaintiff contends that such error does exist and,
therefore, that "[t]he doctrine of stare decisis
should not deter this Court from reversing Etheridge."
The plaintiff argues that the medical
malpractice cap is unconstitutional on each of seven independent
grounds. We will consider these grounds seriatim.
1. Right to Trial by Jury.
Article I, Sect. 11 of the Constitution of
Virginia provides "[t]hat in controversies respecting
property, and in suits between man and man, trial by jury is
preferable to any other, and ought to be held sacred." In Etheridge,
we noted that, at the time the Constitution was adopted, the
jury’s sole function was to resolve disputed facts, that
this continues to be a jury’s sole function,
and that the jury’s fact-finding function extends to the
assessment of damages. 237 Va. at 95-96, 376 S.E.2d at 529. We
stated, however, that "[o]nce the jury has ascertained the
facts and assessed the damages, . . . the
constitutional mandate is satisfied [and thereafter], it is the
duty of the court to apply the law to the facts." Id.
at 96, 376 S.E.2d at 529. The medical malpractice cap, we said,
does nothing more than establish the outer limits of a remedy;
remedy is a matter of law and not of fact; and a trial court
applies the remedy’s limitation only after the jury has
fulfilled its fact-finding function. Id. Hence, we
concluded, the cap does not infringe upon the right to a jury
trial. Id. at 97, 376 S.E.2d at 529.
The plaintiff says, however, that the Court in Etheridge
"erred by failing to conclude that the mandate of Article I,
Sect. 11 includes the right to receive the amount of damages
awarded by a jury after a proper jury trial." In this
connection, the plaintiff cites two recent Supreme Court
In Hetzel v. Prince William County, ___
U.S. ___, 118 S.Ct. 1210 (1998), the United States Court of
Appeals for the Fourth Circuit set aside as grossly excessive a
jury verdict for damages the plaintiff had been awarded in
district court. The Fourth Circuit remanded the case for
recalculation of the award and the entry of judgment for a lesser
amount. The district court granted the plaintiff’s motion
for a new trial. The Fourth Circuit then granted the
defendant’s petition for mandamus and stayed the scheduled
retrial. The Supreme Court reversed, holding that the Fourth
Circuit had imposed a remittitur without the option of a new
trial and that this action "cannot be squared with the
Seventh Amendment." ___ U.S. at ___, 118 S.Ct. at 1212.
Feltner v. Columbia Pictures Television,
Inc., ___ U.S. ___, 118 S.Ct. 1279 (1998), involved an action
by Columbia, a copyright owner, against Feltner, the owner of
television stations that continued to broadcast programs after
Columbia terminated their licenses. A statute gave Columbia the
option of seeking actual damages or statutory damages, the latter
permitted in an amount "as the court considers just."
___ U.S. at ___, 118 S.Ct. at 1282. Columbia chose the statutory
route and made a request for a jury trial, which the district
court denied. The trial judge awarded Columbia a total of
$8,800,000, and Feltner appealed. Applying the Seventh Amendment,
the Supreme Court reversed, holding that, although the statute
was silent on the subject, "the Seventh Amendment provides a
right to a jury trial, which includes a right to a jury
determination of the amount of statutory damages." Id.
The plaintiff says that these two decisions
support his conclusion that the medical malpractice cap violates
his right to a jury trial. We do not agree. In relying on Hetzel,
the plaintiff attempts to equate remittitur with the medical
malpractice cap and argues that, since remittitur without the
option of a new trial violates the Seventh Amendment right to a
jury trial, application of the cap likewise violates
Virginia’s right to a jury trial. However, the
plaintiff’s initial premise is faulty because remittitur and
the cap are not equivalent and do not come into play under the
same circumstances. Remittitur, as well as additur, is utilized
only after a court has determined that a party has not received a
fair and proper jury trial. Supinger, 255 Va. at 203, 495
S.E.2d at 815. The cap, however, is applied only after a
plaintiff has had the benefit of a proper jury trial. In the
latter situation, there is no right to a new trial, and the
constitutional mandate has been satisfied.
The plaintiff’s reliance on Feltner
is also misplaced. There, the Court dealt primarily with whether
Columbia was entitled to a jury trial even though it elected to
seek statutory damages. The Court concluded that Columbia had the
right to a jury trial because the common law afforded copyright
owners causes of action for infringement, and these actions were
tried before juries. The Court recognized that "[t]he
Seventh Amendment . . . applies not only to common-law
causes of action, but also to ‘actions brought to enforce
statutory rights that are analogous to common-law causes of
action ordinarily decided in English law courts in the late 18th
century, as opposed to those customarily heard by courts of
equity or admiralty.’" Feltner, ___ U.S. ___,
118 S.Ct. at 1284. The Court did not address the validity of a
cap on the recovery of damages.
Furthermore, while it does not appear that the
Supreme Court has addressed the issue of the validity of state
statutory caps, it has noted the decisions of two circuit courts
of appeals on the subject. See Gasperini v. Center for
Humanities, Inc., 518 U.S. 415, 429 n.9 (1996) (citing Davis
v. Omitowoju, 883 F.2d 1155, 1161-65 (3rd Cir.
1989), and Boyd v. Bulala, 877 F.2d 1191, 1196 (4th
Cir. 1989), as instances where courts of appeals have held that
district court application of state statutory caps in diversity
cases, post verdict, does not violate the Seventh Amendment).
Boyd v. Bulala dealt directly with
Virginia’s medical malpractice cap. Noting that this Court
recently had decided Etheridge and upheld the
constitutionality of the cap against assertions, inter alia,
that it denies the right of trial by jury, the Fourth Circuit
held that, with respect to the Virginia Constitution, our
decision in Etheridge was "absolutely binding."
877 F.2d at 1195.
Concerning the right of trial by jury under the
Seventh Amendment, the Fourth Circuit followed our reasoning that
it is not the role of the jury but of the legislature to
determine the legal consequences of the jury’s factual
findings. Id. However, the Fourth Circuit assigned this
additional reason for upholding the validity of the cap against
an assertion that it violated the right of trial by jury:
It is by now axiomatic that the
Constitution does not forbid the creation of new rights, or
the abolition of old ones recognized by the common law, to
attain a permissible legislative object. Indeed, the district
court conceded that a legislature’s outright abolition
of a cause of action would not violate the seventh amendment.
If a legislature may completely abolish a cause of action
without violating the right of trial by jury, we think it
permissibly may limit damages recoverable for a cause of
action as well.
Id. at 1196 (citations and interior
quotation marks omitted).
Furthermore, the rule that a plaintiff may not
recover more than the amount of an ad damnum clause
is akin to a cap on damages. Yet, the plaintiff in this case has
not challenged the trial court’s reduction of his $2,045,000
jury verdict to $2,000,000, the amount sued for, and it is
doubtful that such a challenge would meet with success.
Nor can it be disputed that, in addition to
abolishing a cause of action, a legislature may extinguish a
cause of action by the imposition of a statute of limitations,
for example, two years from the date of death in the case of an
action for wrongful death. Code Sect. 8.01-244. If it is
permissible for a legislature to enact a statute of limitations
completely barring recovery in a particular cause of action
without impinging upon the right of trial by jury, it should be
permissible for the legislature to impose a limitation upon the
amount of recovery as well.
The courts of other states have upheld medical
malpractice caps against assertions that they violate the right
to a jury trial. Johnson v. St. Vincent Hospital, Inc.,
404 N.E.2d 585, 601-02 (Ind. 1980); Murphy v. Edmonds, 601
A.2d 102, 118 (Md. 1992); English v. New England Medical
Center, Inc., 541 N.E.2d 329, 331-32 (Mass. 1989).
The plaintiff cites several out-of-state cases
declaring medical malpractice caps unconstitutional, but we find
them inapposite. Moore v. Mobile Infirmary Ass’n, 592
So.2d 156 (Ala. 1991), criticized our decision in Etheridge
but distinguished it, stating that Virginia’s constitutional
provision respecting the right to a jury trial "is
materially distinguishable" from Alabama’s. Id.
at 163. Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash.
1989), also criticized Etheridge, but stated that
Virginia’s constitutional provision relating to trial by
jury is "quite different" from Washington’s. Id.
at 724. Smith v. Department of Insurance, 507 So.2d 1080
(Fla. 1987), involved an assertion that a medical malpractice cap
violated a constitutional provision guaranteeing a right of
access to the courts. Florida law prohibits the legislature from
abolishing a common law right without providing a
"reasonable alternative." Id. at 1088. The cap
was declared unconstitutional because the legislature had
"provided nothing in the way of an alternative remedy or
commensurate benefit." Id. at 1089. Virginia law does
not impose such a quid-pro-quo requirement.
The plaintiff does cite two out-of-state
decisions that are directly opposed to the Etheridge view
with respect to trial by jury. Tenold v. Weyerhaeuser Co.,
873 P.2d 413 (Or. 1993); Guzman v. St. Francis Hosp., No.
97-CV-007107 (Cir.Ct. Milwaukee County Wis. 1998). We disagree
with both decisions.
In summary, we advert to the plaintiff’s
argument, supra, that "the mandate of Article I,
Sect. 11 includes the right to receive the amount of damages
awarded by a jury after a proper trial." We point out,
however, that "the jury trial guarantee secures no rights
other than those that existed at common law [and] the common law
never recognized a right to a full recovery in tort." Etheridge,
237 Va. at 96, 376 S.E.2d at 529 (citing Duke Power Co. v.
Carolina Environmental Study Group, Inc., 438 U.S. 59, 88-89
n.32 (1978), and Phipps Adm’r v. Sutherland, 201 Va.
448, 452, 111 S.E.2d 422, 425 (1959)). It follows, therefore,
that the medical malpractice cap does not impinge upon the right
to trial by jury.
2. Special Legislation.
Article IV, Sect. 14 of the Constitution
of Virginia provides that "[t]he General Assembly shall not
enact any local, special, or private law . . . (18)
[g]ranting to any private corporation, association, or individual
any special or exclusive right, privilege, or immunity."
In Etheridge, we noted that we had previously held that
laws may be made to apply to a class only, even though the class
may be small, provided the classification is reasonable, not
arbitrary, and the law is made to apply to all persons in the
class without distinction. 237 Va. at 102, 376 S.E.2d at 533. We
also noted that if the classification bears a reasonable and
substantial relation to the object sought to be accomplished, it
will survive a special-laws constitutional challenge. Id.
We then pointed out that, in enacting the
Medical Malpractice Act, the General Assembly, after a careful
and deliberate study, had determined health care providers faced
increasing difficulty obtaining affordable malpractice coverage
in excess of $750,000, thus reducing the number of such providers
available to serve Virginia’s citizens. We also pointed out
that the General Assembly had determined that this significant
problem adversely affected the public health, safety, and welfare
and necessitated the imposition of a limitation upon the
liability of health care providers in medical malpractice
actions. Id. at 102-03, 376 S.E.2d at 533.
We observed that the General Assembly had
decided that damage awards in medical malpractice cases should
not exceed $750,000 (now $1,000,000), and we stated that the
limitation applied to all health care providers and all medical
malpractice patients. Id. at 103, 376 S.E.2d at 533. We
found that the classification was not arbitrary, that it bore a
reasonable and substantial relation to the object sought to be
accomplished, and that it applied to all persons belonging to the
class without distinction. Id. Accordingly, we concluded
that the legislation did not violate the prohibition against
special legislation. Id.
When we get to the plaintiff’s arguments
on this subject, we encounter considerable difficulty. Aside from
an "as applied" argument involving Coastal only, which
we will consider shortly, the plaintiff stated during oral
argument there were two reasons that the statute imposing the
medical malpractice cap constituted special legislation.
The first reason, the plaintiff said, is set
forth in the dissent in Fairfax Hospital System, Inc. v.
Nevitt, 249 Va. 591, 457 S.E.2d 10 (1995), a case not
involving a special legislation question but an issue concerning
the interaction between the medical malpractice cap and Code
Sect. 8.01-35.1, which provides that the amount recovered
against one tortfeasor shall be reduced by the amount paid in
settlement by another tortfeasor. In the portion of the dissent
upon which the plaintiff relies, the dissenters accuse the
majority of using the medical malpractice cap, as it interacts
with the release statute, in a manner "foreign to its
purpose and consequent constitutional justification of fostering
affordable medical malpractice insurance." Id. at
600, 457 S.E.2d at 15.
The plaintiff’s second reason for saying
the cap constitutes special legislation is based upon a statement
made in a report prepared by the State Corporation Commission in
1975 on "Medical Malpractice Insurance in Virginia."
This report was attached as an exhibit to Senate Document 29,
which consists of the 1976 interim report of a legislatively
created Commission to Study the Costs and Administration of
Health Care Services. 3 House and Senate Documents (1976
Session). On page 92 of its report, the State Corporation
Commission stated: "In fact, existing evidence indicates
that several of the more popular solutions (e.g., a $500,000
limit on the amount recovered) will not reduce the cost of
malpractice premiums in a jurisdiction like Virginia where awards
or settlements seldom exceed $250,000." This proves, the
plaintiff said during oral argument, that the cap does not bear a
reasonable and substantial relation to the object sought to be
accomplished and, therefore, constitutes special legislation.
The difficulty with these two arguments is that
they first surfaced during oral argument before this Court. They
do not appear in the record below, in the plaintiff’s
petition for appeal, or in his appellate briefs. Consequently, we
will not consider them. Rule 5:25.
The plaintiff’s "as applied"
argument concerning Coastal stems from the fact that, in 1994,
the General Assembly amended Code Sect. 8.01-581.1 by adding
new entities to the definition of "[h]ealth care
provider," as follows:
(vi) a corporation, partnership, limited
liability company or any other entity, except a
state-operated facility, which employs or engages a licensed
health care provider and which primarily renders health care
The plaintiff argues that the 1994 amendment
contained no statement of purpose and, therefore, that it fails
the test that a statutory scheme, as applied, must bear a
reasonable and substantial relationship to the object sought to
be accomplished by the legislation. There is a reasonable
inference, however, that the General Assembly intended the
amendment to serve the same purpose as the original enactment of
the medical malpractice cap, i.e., to provide "a
remedy for a perceived social problem, the unavailability of
medical malpractice insurance at affordable rates." Etheridge,
237 Va. at 108, 376 S.E.2d at 536 (Russell, J., dissenting).
The plaintiff also argues that in Schwartz
v. Brownlee, 253 Va. 159, 482 S.E.2d 827 (1997), we said that
the purpose in the enactment of the Medical Malpractice Act was
to enable licensed health care providers to secure medical
malpractice insurance at affordable rates and that it "would
not serve that purpose to extend the protection of the cap to
non-health care providers." Id. at 167, 482 S.E.2d at
832. From this, the plaintiff argues that because Coastal is not
a licensed health care provider, extension of the cap to
Coastal does not bear a reasonable and substantial relationship
to the object sought to be accomplished by the medical
malpractice cap, and the 1994 amendment, therefore, constitutes
But the language in Schwartz was limited
to licensed health care providers because, at the time the injury
in Schwartz occurred, the cap was applicable only to
licensed health care providers. We noted that the 1994 amendment
had been enacted, but pointed out that the enactment occurred
subsequent to the injury. Id. at 164 n.3, 482 S.E.2d at
830 n.3. While we stated it would not serve the purpose of the
medical malpractice cap to extend its protection to non-health
care providers, entities like Coastal are no longer non-health
care providers as a result of the 1994 amendment and, as to them,
the statement is now irrelevant. And it may be added that, under
its contract with Southside Regional, Coastal is required to be
covered by professional liability insurance with limits of at
least $1,000,000 per occurrence and $3,000,000 annual aggregate,
so Coastal has a direct interest in the availability of
professional liability insurance at affordable rates and fits
within the class the cap is intended to protect. 
The remainder of the plaintiff’s "as
applied" argument is confined to the proposition that the
medical malpractice cap concentrates the costs solely upon those
whose losses are greatest while identifying "a specific
elite class, described as ‘health care providers,’ to
which it accords special privileges and immunities that are given
to no other tortfeasors in this Commonwealth." And the
plaintiff indicates his agreement with the dissent in Etheridge
that the General Assembly acted arbitrarily in restricting the
cap so that it did not apply to "all plaintiffs and all
defendants regardless of their identities." Etheridge,
237 Va. at 112, 376 S.E.2d at 538.
The difficulty with the plaintiff’s
argument and, indeed, with the dissent in Etheridge, is
that both place much greater emphasis upon the classes affected
by the cap than upon the real test for determining whether a
statute withstands a special-laws challenge.  Classifications
are relevant, of course, and should be given consideration in
determining whether a particular legislative act constitutes
special legislation. But the real test "for statutes
challenged under the special-laws prohibitions in the Virginia
Constitution is that they must bear ‘a reasonable and
substantial relation to the object sought to be accomplished by
the legislation.’" Benderson Development Co. v.
Sciortino, 236 Va. 136, 147, 372 S.E.2d 751, 757 (1988)
(quoting Mandell v. Haddon, 202 Va. 979, 991, 121 S.E.2d
516, 525 (1961)). And, while we think that the classification
involved in this case is reasonable, not arbitrary, and that the
medical malpractice cap is made to apply to all the persons
within a particular class without distinction, "the
necessity for and the reasonableness of classification are
primarily questions for the legislature. If any state of facts
can be reasonably conceived . . . that would sustain
it, that state of facts at the time the law was enacted must be
assumed." Martin’s Ex’rs v. Commonwealth,
126 Va. 603, 612-13, 102 S.E. 77, 80 (1920).
Here, however, we do not have to assume a set
of facts that would sustain the medical malpractice cap. The
actual facts were as stated in Etheridge: "The
General Assembly concluded [after careful and deliberate study] that escalating costs of medical malpractice insurance and the
availability of such insurance were substantial problems
adversely affecting the health, safety, and welfare of
Virginia’s citizens." 237 Va. at 94, 376 S.E.2d at 528.
Given these facts, we think the cap bears a reasonable and
substantial relation to the General Assembly’s objective to
protect the public’s health, safety, and welfare by insuring
the availability of health care providers in the Commonwealth.
Accordingly, we conclude that the medical malpractice cap does
not constitute special legislation.
3. Taking of Property.
Under the Fifth Amendment to the Constitution
of the United States, private property shall not be taken for
public use without just compensation. Under art. I, Sect. 11
of the Constitution of Virginia, private property shall not be
taken or damaged for public uses without just compensation.
Here, the argument is that the effect of the
medical malpractice cap is to take the property of the plaintiff
and his son in violation of these constitutional provisions. As
the statutory beneficiaries of Mrs. Pulliam, the argument goes,
the plaintiff and his son "had a property interest in the
full measure of the jury’s verdict."
We disagree. In Hess v. Snyder Hunt Corp.,
240 Va. 49, 392 S.E.2d 817 (1990), we considered a challenge to
the constitutionality of Code Sect. 8.01-250, a statute of
repose which, upon the expiration of a fixed time,
"extinguishes ‘not only the legal remedy but also all
causes of action, including those which may later accrue as well
as those already accrued.’" Id. at 52, 392
S.E.2d at 819 (quoting School Board v. United States Gypsum
Co., 234 Va. 32, 37, 360 S.E.2d 325, 327-28 (1987)). The
challenge to Code Sect. 8.01-250 was that it deprived
persons of life, limb, or property without due process of law in
violation of amend. XIV, Sect. 1 of the United States
Constitution and art. I, Sect. 11 of the Virginia
Constitution. Hess, 240 Va. at 52, 392 S.E.2d at 820.
We said in Hess that it is only when a
right has accrued or a claim has arisen that it is subject to the
protection of the due process clause. 240 Va. at 54, 392 S.E.2d
at 821. We said further that "Code Sect. 8.01-250 does
not disturb a vested right, for ‘[n]obody has a vested right
in the continuance of the rules of the common law.’" Id.
(citing Munn v. Illinois, 94 U.S. 113, 134 (1877)).
Continuing, we stated that "the fourteenth amendment does
not forbid a legislature from abolishing old rights recognized by
the common law in order to attain a permissible legislative
objective." Id. at 54, 360 S.E.2d at 821. Finally, we
said that "if a legislature can abolish a cause of action
for a legitimate legislative purpose, it also may prevent a cause
of action from arising by enacting a statute of repose for such a
This rationale applies with equal force here.
The plaintiff’s cause of action for wrongful death had not
accrued at the time the cap was imposed upon recoveries in
medical malpractice cases. One cannot obtain a property interest
in a cause of action that has not accrued, and there was nothing
to prevent the General Assembly from limiting the remedy, so far
as unaccrued causes of action are concerned, to attain a
permissible legislative objective without running afoul of the
"taking" clauses of the Federal and State
Constitutions. Accordingly, we find no violation of the
"taking" clauses in this case.
4. Due Process.
5. Equal Protection.
In oral argument, the plaintiff combined these
two subjects and attempted to convince the Court that it should
apply an intermediate level of scrutiny, rather than the
lower-level rational basis test, in our due process and equal
protection analysis of the medical malpractice cap.  However,
we ruled in Etheridge that, in a due process or equal
protection analysis, the rational basis test applies unless a
fundamental right or a suspect class is affected. 237 Va. at 97,
103, 376 S.E.2d at 530, 534. And we noted that those interests
that have been recognized as "fundamental" include the
right to free speech, the right to vote, the right to interstate
travel, the right to fairness in the criminal process, the right
to marry, and the right to fairness in procedures concerning
governmental deprivation of life, liberty, or property. Id.
at 98, 376 S.E.2d at 530. We noted further that suspect
classifications are those based upon race and national origin and
that classifications based upon gender, alienage, and
illegitimacy are entitled to receive a level of scrutiny between
strict scrutiny and the rational basis test. Id. at 103
n.7, 376 S.E.2d at 534 n.7. Here, however, no fundamental right
or suspect class is affected by application of the medical
Accordingly, we are of opinion that Etheridge
enunciated the correct level of scrutiny and that the rational
basis test continues to provide the proper standard for
determining whether there has been a denial of due process or
equal protection in a case involving the medical malpractice cap.
The rational basis test is satisfied from a due process
standpoint if the challenged legislation has a reasonable
relation to a proper purpose and is not arbitrary or
discriminatory, id. at 97, 376 S.E.2d at 530, or, from an
equal protection standpoint, if the legislature could reasonably
have concluded that the challenged classification would promote a
legitimate state purpose, id. at 104, 376 S.E.2d at 534.
We think that the medical malpractice cap
passes the test of constitutionality when judged against these
standards, primarily for the reasons previously enunciated in
Part A(2) of this opinion regarding special legislation.
Accordingly, we hold that the plaintiff has suffered no denial of
due process or equal protection from application of the cap to
the jury verdict in this case.
The plaintiff stated in oral argument, however,
that, even if the rational basis test applies, there still would
be a denial of due process and equal protection in this case for
two reasons, one based upon the dissent in Fairfax Hospital
System, Inc. v. Nevitt, supra, and the other upon the
statement in Senate Document No. 29 concerning the efficacy of
the medical malpractice cap for its intended purpose. But, as we
noted in Part A(2) of this opinion, arguments based upon the Nevitt
dissent and the Senate Document statement cannot be considered
because they were raised for the first time on appeal. Rule 5:25.
6. Separation of Powers.
7. Province of the
Because these two subjects are related, we will
discuss them together. The plaintiff argues that the medical
malpractice cap violates the separation of powers doctrine and
also invades the province of the judiciary.
In rejecting a separation of powers challenge
in Etheridge, we pointed out that under art. VI,
Sect. 1 of the Virginia Constitution, the General Assembly,
subject to provisions relating to the power and jurisdiction of
this Court, has "the power to determine the original and
appellate jurisdiction of the courts of the Commonwealth."
237 Va. at 100, 376 S.E.2d at 532. We also noted that under art.
IV, Sect. 14 of the Constitution, the General
Assembly’s authority extends "to all subjects of
legislation not herein forbidden or restricted," and that
the common law is one area in which the General Assembly’s
authority has not been forbidden or restricted. Id.
Accordingly, we said that the legislature has
the power to provide, modify, or repeal a remedy. 237 Va. at 101,
376 S.E.2d at 532. And we concluded that "whether the remedy
prescribed in Code Sect. 8.01-581.15 is viewed as a
modification of the common law or as establishing the
jurisdiction of the courts in specific cases, clearly it was a
proper exercise of legislative power." 237 Va. at 101, 376
S.E.2d. at 532.
This rationale applies with equal force here,
and it should be sufficient to dispose of the plaintiff’s
arguments concerning separation of powers and the province of the
judiciary, but the plaintiff disagrees. He says that art. VI,
Sect. 5 of the Constitution of Virginia establishes that
"the judiciary, not the legislature, makes the rules
applicable to jury verdicts."
On brief, the plaintiff quotes art. VI,
Sect. 5 as providing that this Court has "the authority
to make rules governing . . . the practice and
procedures to be used in the courts of the
Commonwealth. . . ." However, what the
plaintiff has omitted at the end of this quotation is of crucial
importance. The full text of art. VI, Sect. 5 reads as
The Supreme Court shall have the authority
to make rules governing the course of appeals and the
practice and procedures to be used in the courts of the
Commonwealth, but such rules shall not be in conflict with
the general law as the same shall, from time to time, be
established by the General Assembly.
(Emphasis added.) In addition, Code
Sect. 8.01-3, which is listed in the cross-reference
following art. VI, Sect. 5, provides that, while this Court
"may prepare a system of rules of practice and a system of
pleading and the forms of process, . . . [t]he
General Assembly may, from time to time, by the enactment of a
general law, modify, or annul any rules adopted or amended
pursuant to this section [and in] the case of any variance
between a rule and an enactment of the General Assembly such
variance shall be construed so as to give effect to such
enactment." (Emphasis added.)
Thus, we find no merit in the plaintiff’s
arguments concerning separation of powers and the province of the
judiciary. Accordingly, we reject the arguments.
B. Health Care Provider.
As noted in Part A(2) of this opinion, Code
Sect. 8.01-581.1 defines a "[h]ealth care
provider" to include:
(vi) a corporation, partnership,
limited liability company or any other entity, except a
state-operated facility, which employs or engages a
health care provider and which primarily renders health
The plaintiff contends that the medical
malpractice cap does not apply to Coastal because the cap applies
only to health care providers and "[t]here simply is nothing
in the trial record evidencing that Coastal ‘primarily
renders health care services,’ an essential component of
Sect. 8.01-581.1’s definition of ‘health care
provider.’" The plaintiff says that Coastal is nothing
more than "a specialized type of employment placement
However, the evidence shows that Coastal was
quite different from an employment placement service.
Coastal’s senior vice-president testified that Coastal was
created to provide emergency physicians to staff emergency
departments of hospitals and that "[i]s . . . what
it in fact does."
Coastal’s contract with Southside Regional
obligated Coastal to provide at least five physicians to render
"professional and administrative services in
[Southside’s Emergency] Department on a full-time basis
. . . 24 hours a day, 7 days a week." Coastal
agreed that the physicians would direct and supervise all medical
services in the emergency department, participate in educational
programs, and perform teaching functions. Coastal also agreed to
provide information to Southside Regional regarding budgetary
needs of the emergency department and to perform a number of
other administrative tasks.
In addition, the contract required Coastal to
designate one of its physicians, serving as its employee, to be
"the Chief/Medical Director of the Department." This
doctor’s duties were to "provide overall medical
direction in the continuing operation" of the emergency
department, "assure that the quality, safety and
appropriateness of patient care in the Department are
evaluated," and "see that the performance of the
Physicians is in accordance with" the contract. The contract
"entitled [Coastal] to bill patients for professional
services rendered by the Physicians." The contract provided
that Coastal’s fees would be independent of Southside
Regional’s charges and that neither Coastal nor the
physicians would receive any compensation from Southside Regional
for services rendered pursuant to the contract.
Coastal owns no emergency room facility or
equipment and employs no support personnel such as nurses or
technicians. Instead, it enters into contracts with physicians
and pays them for their services. In Dr. DiGiovanna’s case,
the contract stipulated that his professional services would be
provided at designated medical institutions and that Coastal
would pay a set fee for each hour during which he provided
services pursuant to the contract.
The plaintiff says that, as a matter of law,
the trial court erred in concluding that Coastal carried its
burden of proving it primarily renders health care services
within the meaning of the definition of "[h]ealth care
provider" in Code Sect. 8.01-581.1(vi). We disagree
with the plaintiff.
The contract between Coastal and Southside
Regional clearly provided for the rendering of health care
services in Southside Regional’s emergency room. Coastal is
a corporation created to provide emergency physicians to staff
emergency departments of hospitals for the purpose of rendering
health care services in such departments. A corporation can act
only through its officers and agents. Greenberg v.
Commonwealth, 255 Va. 594, 600, 499 S.E.2d 266, 269 (1998).
It is a concession in the case that Dr. DiGiovanna was the agent
of Coastal, and it was in this capacity that he rendered health
care services to Mrs. Pulliam in the emergency room of Southside
Regional on December 15, 1995. In our opinion, all the foregoing
established at least a prima facie case that Coastal was an
entity "which primarily renders health care services"
within the meaning of the definition of "[h]ealth care
provider" in Code Sect. 8.01-581.1(vi). The trial court
did not err, therefore, in holding that Coastal had carried its
burden of proof.
C. Prejudgment Interest.
As noted previously, the jury allowed interest
from the date of Mrs. Pulliam’s death, but the trial court
disallowed the award on the ground that prejudgment interest is
subject to the medical malpractice cap. The plaintiff says this
The plaintiff points out that, under Code
Sect. 8.01-581.15, the total amount recoverable for
any injury to, or death of, a patient shall not exceed one
million dollars. The plaintiff says that interest is not
"for" such injury or death, and, quoting Nationwide
Mut. Ins. Co. v. Finley, 215 Va. 700, 214 S.E.2d 129 (1975),
the plaintiff argues that "[t]he interest the law allows on
judgments is not an element of ‘damages’ but a
statutory award for delay in the payment of money due." Id.
at 702, 214 S.E.2d at 131.
We disagree with the plaintiff. Finley
involved postjudgment interest. Id. at 701, 214
S.E.2d at 130; Dairyland Ins. Co. v. Douthat, 248 Va. 627,
632, 449 S.E.2d 799, 801 (1994). And we said in Dairyland
that there is "an important distinction between prejudgment
interest and postjudgment interest." Id. at 631, 449
S.E.2d at 801. "Underlying this distinction," we
continued, "is the principle that ‘[p]rejudgment
interest is normally designed to make the plaintiff whole and is
part of the actual damages sought to be recovered.’" Id.
(quoting Monessen Southwestern Ry. v. Morgan, 486 U.S.
330, 335 (1988)). "In contrast," we said,
"postjudgment interest is not an element of damages, but is
a statutory award for delay in the payment of money actually
due." 248 Va. at 632, 449 S.E.2d at 801.
The plaintiff attempts to distinguish Dairyland
on the basis of a concession made there by the parties sought to
be charged that "prejudgment interest is an element of
compensatory damages." Id. at 630, 449 S.E.2d at 801.
The plaintiff says that this concession eliminated "the need
for this Court to reach that issue."
It is true that such a concession was made in Douthat,
but this Court distinctly made the holding that "prejudgment
interest . . . is part of the actual damages sought to
be recovered," id. at 631, 449 S.E.2d at 801, and we
cited Monessen as authority for the holding. If that was
this Court’s holding, then prejudgment interest is part of
"the total amount recoverable for any injury to, or death
of, a patient," within the meaning of Code
Sect. 8.01-581.15, and subject to the medical malpractice
cap of one million dollars. But if any question remains about the
holding, the question will be eliminated by our affirmance of the
trial court’s judgment in all respects.
In conclusion, we note that Etheridge
has been cited in sixteen subsequent opinions of this Court
without any indication to the bench, the bar, or the public that
flagrant error or mistake exists in the decision. This
underscores the significance of what we said in Myers v. Moore,
204 Va. 409, 131 S.E.2d 414 (1963), a case involving the
constitutionality of the Virginia Water and Sewer Authorities
The reason for the [stare decisis] principle is that in a well ordered society it is important
for people to know what their legal rights are, not only
under constitutions and legislative enactments but also as
defined by judicial precedent, and when they have conducted
their affairs in reliance thereon they ought not to have
their rights swept away by judicial decree when at a later
date other grounds may be conceived to attack the
constitutionality of a statute. This is especially true where
property rights are involved. Under the Authorities Act
numerous improvement districts have been created and financed
in reliance upon the pronouncement of this Court that it is
free from constitutional objections. Thus the doctrine of stare
decisis, one of the most important principles in the
structure of our law, should here apply with all its force.
Id. at 413, 131 S.E.2d at 417.
Sect. 8.01-581.15 provides that "[i]n any verdict
returned against a health care provider in an action for
malpractice[,] . . . the total amount recoverable for
any injury to, or death of, a patient shall not exceed one
 It is a concession in the
case that Coastal "is liable in respondeat superior"
for the negligence of Dr. DiGiovanna.
 Dr. Wickizer was named
originally as a defendant to the plaintiff’s motion for
judgment but was later nonsuited.
 We emphasize the "as
applied" language of the plaintiff’s assignment of
error because, in oral argument, the plaintiff contended that
legislation adopted in 1994 adding entities like Coastal to the
definition of "[h]ealth care provider" was facially
invalid, and the assignment of error does not permit that
argument. Rule 5:17(c). Furthermore, the argument is foreclosed
because it was not made in the trial court, in the
plaintiff’s petition for appeal, or in his appellate briefs.
 On brief, the plaintiff
argues a claim not asserted in Etheridge, i.e.,
that the cap "does not express its object in its title [in
violation of art. IV, Sect. 12 of the Constitution of
Virginia]." However, the plaintiff did not raise this point
in the trial court or in the petition for appeal, and we will not
consider it now. Rule 5:25.
 In Speet v. Bacaj,
237 Va. 290, 296, 377 S.E.2d 397, 400 (1989), and Supinger v.
Stakes, 255 Va. 198, 205, 495 S.E.2d 813, 815 (1998), we
reaffirmed the proposition that a jury’s sole common law
function is to resolve disputed facts.
The plaintiff criticizes
the Etheridge majority for its interpretation of the
opinion in W.S. Forbes & Co. v. Southern Cotton Oil Co.,
130 Va. 245, 108 S.E. 15 (1921). The plaintiff says that
"the linchpin of the reasoning of the Etheridge
majority [concerning trial by jury] was a statement in [Forbes],
taken out of context and given a broad meaning never intended by
the Forbes court." This is the statement in Forbes
the plaintiff cites: "The province of the jury is to settle
questions of fact, and when the facts are ascertained the law
determines the rights of the parties. This law is announced by
the court or judge." 130 Va. at 260, 108 S.E. at 20.
However, in the same paragraph, the Forbes court also said
this: "If no . . . evidence is offered
. . . that would warrant a jury . . . in
finding a verdict in accordance therewith, then the rights of the
parties become a question of law, and there is no controversy to
be determined by a jury, and the constitutional guaranty does
not apply." Id. at 261, 108 S.E. at 20 (emphasis
added). This is the conclusion we drew in Etheridge that
attracted the plaintiff’s criticism: "Once the jury has
ascertained the facts and assessed the damages, . . .
the constitutional mandate is satisfied. Thereafter, it is the
duty of the court to apply the law to the facts." Etheridge,
237 Va. at 96, 376 S.E.2d at 529 (citations omitted). We think
this conclusion was fully justified, and we reaffirm it.
 The plaintiff acknowledges
that the Seventh Amendment does not apply to procedures in state
courts, but says that Supreme Court decisions interpreting the
Seventh Amendment are highly instructive in defining the scope of
the right to a jury trial in litigation in state courts.
 The plaintiff also
contends that the medical malpractice cap "violates Article
I, Sect. 4 of the Constitution of Virginia and its
prohibition against ‘exclusive or separate emoluments or
privileges.’" However, as Etheridge points out,
this clause is intended to shield against heredity in office and
has no application to this type of case. 237 Va. at 101, 376
S.E.2d at 532.
 Coastal also agreed in
its contract with Southside Regional that "each of [its] Physicians shall be covered by professional liability insurance
with limits of at least $1,000,000.00 per occurrence and
$3,000,000.00 annual aggregate." Coastal concedes that this
provision only "obligated [it] to ensure that the Physicians
were covered by malpractice insurance," rather than
obligating Coastal to provide the coverage itself. Even so, this
gives Coastal at least an indirect interest in the availability
of such insurance at affordable rates.
 The dissenters in Etheridge
were concerned that the Medical Malpractice Act left
"uncovered" entities which rendered health care
services but were not licensed in this Commonwealth. 237 Va. at
110, 376 S.E.2d at 537. This concern should be allayed, however,
by the 1994 amendment to Code Sect. 8.01-581.1, which added
to the definition of "[h]ealth care provider" numerous
unlicensed entities which employ or engage licensed health care
providers and which primarily render health care services.
 The plaintiff states on
brief that he "incorporates by reference the due process
arguments considered and rejected by this Court in Etheridge."
However, we do not consider arguments incorporated by reference;
all arguments "must be made in the appellate briefs." Williams
v. Commonwealth, 248 Va. 528, 537, 450 S.E.2d 365, 372
JUSTICE HASSELL, with whom JUSTICE KEENAN and
JUSTICE KOONTZ join, concurring.
I believe that the result reached by the
majority is compelled by the absence of a sufficient record in
Article IV, Section 14, of the Constitution of
Virginia provides, in part, that: "[t]he General Assembly
shall not enact any local, special, or private law
. . . [g]ranting to any private corporation,
association, or individual any special or exclusive right,
privilege, or immunity." Va. Const. art. IV, sec. 14(18).
Article IV, Section 15, Va. Const., provides, in pertinent part:
"In all cases enumerated in the
preceding section, . . . the General Assembly shall
enact general laws. Any general law shall be subject to
amendment or repeal, but the amendment or partial repeal
thereof shall not operate directly or indirectly to enact,
and shall not have the effect of enactment of, a special,
private, or local law.
. . . .
"No private corporation, association,
or individual shall be specially exempted from the operation
of any general law, nor shall a general law’s operation be
suspended for the benefit of any private corporation,
association, or individual."
The constitutional prohibition against special
laws does not prohibit legislative classifications. King
v. Neurological Injury Compensation Program, 242 Va. 404,
409, 410 S.E.2d 656, 660 (1991). Rather, the prohibitions require
that such classifications be "natural and reasonable, and
appropriate to the occasion." Benderson Dev. Co. v. Sciortino,
236 Va. 136, 140-41, 372 S.E.2d 751, 753 (1988); King, 242
Va. at 409, 410 S.E.2d at 659.
In Mandell v. Haddon, 202 Va.
979, 989, 121 S.E.2d 516, 524 (1961), we observed that:
"[W]e must determine in each case
whether [a challenged act] makes an ‘arbitrary separation,’
and this depends upon the purpose and subject of the
particular act and the circumstances and conditions
surrounding its passage.
"The necessity for and the
reasonableness of the classification are primarily questions
for the legislature. If any state of facts can be reasonably
conceived that would support it, that state of facts at the
time the law was enacted must be assumed. Martin’s Ex’rs
v. Commonwealth . . . 126 Va. [603,] 612,
102 S.E. [77,] 80, [(1920)]; Joy, Draheim & Cox v.
Green . . . 194 Va. [1003,] 1009, 76 S.E.2d
[178,] 182 [(1953)]. The presumption is that the
classification is reasonable and appropriate and that the act
is constitutional unless illegality appears on its
I can only conclude, based upon the record
before this Court, that Code Sect. 8.01-581.15 does not
contravene Virginia’s constitutional prohibition against special
legislation. The determinative issue is whether the statute as
applied "bear[s] a reasonable and substantial relation to
the object sought to be accomplished by the legislation." Mandell,
202 Va. at 991, 121 S.E.2d at 525. The record before this Court
simply does not demonstrate that the challenged statute fails to
bear a reasonable and substantial relationship to the object
sought to be accomplished by the legislation. In other words,
Karl B. Pulliam, executor of the estate of Elnora R. Pulliam, did
not present evidence to rebut the presumption that the
legislative classification limiting damages was reasonable. He
failed to establish that the limitation of damages was
unsupported by any reasonably conceivable state of facts at the
time the statute was enacted. Thus, he did not meet the standard
that must be established before the statute can be declared
constitutionally impermissible. I agree with the majority’s
resolution of the remaining issues.
JUSTICE KINSER, concurring.
I agree with the majority’s rationale and
decision that the medical malpractice recovery cap contained in
Code Sect. 8.01-581.15 does not violate any provision of
either the Constitution of the United States or the Constitution
of Virginia.  I reach this conclusion
without considering the role that stare decisis
should play in this case. I write separately for the sole purpose
of expressing my belief that the medical malpractice cap creates
an unwarranted injustice in certain situations.
The General Assembly has the responsibility to
protect the health, welfare, and safety of the citizens of this
Commonwealth through appropriate legislation. However, the
medical malpractice cap works the greatest hardship on those
individuals who are the most severely injured by the negligence
of health care providers. Nevertheless, I cannot be influenced by
such concerns when deciding the constitutionality of a challenged
statute. I can only express my views with the hope that the
General Assembly will adopt a more equitable method by which to
ensure the availability of health care in this Commonwealth.
 I also agree with the
majority’s decision that Coastal Emergency Services of
Richmond, Inc., is a "health care provider" under Code
Sect. 8.01-581.1 and that prejudgment interest is subject to
the medical malpractice cap.