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Taking off the cap: Lawyer, senators target change in medical malpractice law

Peter Vieth//December 14, 2020

Taking off the cap: Lawyer, senators target change in medical malpractice law

Peter Vieth//December 14, 2020

A Washington lawyer whose client was denied $33.4 million under Virginia’s medical malpractice cap has vowed to get the law changed.

Joseph Cammarata says the cap on recovery works the greatest hardship on the most severely injured, including his client who was left with profound brain injury after surgery. An Arlington County jury last year returned a $35.6 million verdict which then was reduced to $2.2 million in accordance with the cap.

Jurors were taken aback after the trial to learn their considered award was slashed to a fraction, Cammarata said Dec. 4.

“It’s time that something be done,” he said.

Cammarata has allies in the General Assembly. Sen. Bill Stanley, R-Moneta, a friend of Cammarata, introduced Senate Bill 1107 to eliminate the cap, which now stands at $2.45 million and increases $50,000 each year. Sen. Scott Surovell, D-Fairfax County, says he has agreed to co-sponsor the measure, giving the idea support from both sides of the aisle.

The healthcare industry is gearing up for a fight. A lobbyist for Virginia physicians said the Medical Society of Virginia is taking the initiative seriously and preparing to defend the cap. MSV general counsel W. Scott Johnson said he spent Dec. 4 rallying support from a variety of healthcare groups.

“People are fired up about it,” Johnson said.

The Virginia Trial Lawyers Association will not be a player in the renewed debate over the cap. The organization says it is honoring a nearly decade-old peace agreement with medical providers.

Even as the remaining stakeholders prepare for a showdown in Richmond, a federal judge sitting in Harrisonburg is considering a schedule for arguments about the constitutionality of the malpractice cap in an action against a pediatric clinic.

Fairness issue

Cammarata’s $35,620,902 verdict in 2019 was the second highest jury award that year reported to VLW, which publishes annual lists of Virginia’s largest verdicts.

The patient was a 59-year-old mother of two who underwent a lumbar laminectomy to treat intractable back pain, according to the report on the case from plaintiff’s counsel. During surgery, the iliac artery was disrupted, leading to severe blood loss and 23 minutes of hypoxia, Cammarata said. The patient was left severely disabled.

The patient claimed lost wages of $1 million and an $8.7 million life care plan, the report said. The jury’s record-setting verdict after a seven-day trial was reduced to a judgment of $2.2 million, Cammarata said.

“You shift responsibility from the wrongdoer to the taxpayers,” Cammarata said, referring to Medicare coverage for those with permanent disability.

“It was a heartbreaking story,” Stanley said of the Arlington verdict. He said he was happy to carry the bill for Cammarata.

“He has convinced me that it’s the right thing to do,” Stanley said.

“This is not an attack on doctors. This is an attack on insurance companies, who have gotten away with it for far too long,” Stanley said.

Cammarata portrayed the medical malpractice cap as a special civil justice protection carved-out for just one class of defendants.

“There’s no group that should be preferred over any other group, especially the insurance industry,” He said insurance companies can force cases to go to trial unnecessarily because they face no risk of big verdicts.

“Don’t we have faith in our jury system? Why should these people be treated differently from someone harmed in a car accident?” Cammarata said.

Surovell was equally emphatic.

“Virginia’s medical malpractice cap is one of the most god-awful laws we have on the books right now,” Surovell said.

Surovell contends the cap undermines incentives for health care providers to avoid mistakes and drives cases to trial that should be settled instead.

“It drives up Medicare costs; it violates the Seventh Amendment right to trial by jury; it’s fundamentally un-American and unfair,” Surovell said Dec. 4.

VTLA to stay silent

Organized trial lawyers will remain on the sidelines in the dispute. A 2011 agreement between health care providers and the Virginia Trial Lawyers Association called for a ceasefire on the cap until the stair-step schedule of increases maxes out in 2032.

“Virginia’s medical malpractice cap represents a carefully negotiated compromise among the trial lawyers, health care providers, and liability insurers,” said R. Brent Rawlings, general counsel of the Virginia Hospital & Healthcare Association.

VTLA lobbyist Mark Dix said the group would honor the peace treaty. “The VTLA made that deal. The VTLA stands by its deals,” Dix said Dec. 7.

 Cammarata was undeterred.

“If they want to choose to stand there with their hands in their pockets, that’s fine by me,” Cammarata said. “I intend to get this done. It is my piece. It’s very important to me.”

“They’re great people, but this is a fight we’re going to have to take up on our own,” Stanley said of the VTLA.

Surovell said he is not a party to any deal to leave the cap plan in place. “I wasn’t involved; I wasn’t consulted. It’s not binding on us,” Surovell said of the VTLA peace agreement.

Providers: Cap protects public

Rawlings said the cap “benefits the public through stabilizing medical malpractice insurance premiums – allowing Virginia to attract and retain the service of health care professionals in an era of shortages. It also balances the needs of injured patients with reasonable recovery amounts that are adjusted over time,” Rawlings continued. “Eliminating or increasing the medical malpractice cap will ultimately lead towards higher health care costs for businesses and patients.”

The advocates for providers also pointed to the hardships that COVID-19 have put on medical practices. “We are in the throes of fighting a global pandemic,” Rawlings said.

MSV Presdient Art Vayer agreed.

“Now is not the time to disrupt our stable liability environment in the commonwealth with passage of this legislation which would impose huge costs on our ability to care for our patients, not to mention the struggles we have faced to keep providing our patients the best possible care in the midst of COVID,” Vayer said.

“The fact that this bill is even being considered during these tumultuous times, when healthcare providers have courageously served on the frontlines of this pandemic, is unacceptable. We must work together to stop this bill and protect our healthcare heroes,” Vayer added.

Constitutionality challenge

The fate of the Virginia malpractice cap could be decided in the federal courts instead of the state Capitol. U.S. District Judge Michael F. Urbanski heard arguments Nov. 23 on whether a constitutional challenge to the malpractice cap should be resolved before litigation continues in a negligence action against a pediatric practice.

Lawyers for a youth who claims his neurological injuries went untreated for too long contend the malpractice cap violates his right to trial by jury under the Seventh Amendment to the U.S. Constitution and corresponding language in the Virginia constitution. Because the plaintiff already recovered the maximum allowed under the cap from other healthcare providers, the litigation would be mooted if the cap is deemed constitutional.

Courts in Wisconsin, Oregon and North Dakota have ruled various forms of malpractice caps unconstitutional in the past three years, according to the Expert Institute, which tracks U.S. damages caps. Missouri established a schedule of increasing caps in 2015, the company said.

Twenty-nine states have damages caps in some form, the company said.

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