Med-mal ‘relief’ bill defeated

A bill that would have provided a “relief valve” for Virginia’s medical malpractice cap has died in a General Assembly subcommittee.

Under Senate Bill 1107, proposed by Sen. Bill Stanley, R-Moneta, the medical malpractice cap would be lifted in cases of “substantial or permanent loss or impairment” of a bodily function, brain injury, substantial disfigurement and “any other special circumstance” that warrants a finding that the cap would deprive the plaintiff of just compensation. Stanley originally proposed complete elimination of the medical malpractice recovery cap, which is currently $2.45 million. The cap grows by $50,000 every year through 2031.  

Stanley’s proposed escape hatch from the cap would affect only about four medical malpractice claims in Virginia annually, he contended. Virginia currently has the highest medical malpractice cap of the 29 states that maintain a cap.

Stanley’s bill faced an intensive Feb. 1 examination by the Senate Judiciary Committee and its civil laws subcommittee. The subcommittee ultimately voted 5-1 to pass the bill by indefinitely – killing it for this session – but only after numerous stakeholders shared their views. Sen. Scott Surovell, D-Fairfax, a co-patron, was the only vote against killing the bill. 

The vote came hours after Stanley gave an impassioned exhortation to the judiciary committee. 

“What I was really trying to accomplish here was to make sure that we try to take care of the rare occasions where somebody is injured by the negligence of a doctor and those injuries require, through economic damages, millions of dollars of medical care in the future,” Stanley said.

Stanley’s advocacy, and much of the testimony in support of the bill, centered on the case of Nancy Hervey. Hervey reportedly went in for “routine back surgery,” but had an artery severed in her stomach, leading to hypoxia and “severe and permanent disabilities.”

Hervey’s case went to trial in 2019, where a jury rendered a verdict of $35.6 million, $9.3 million of which represented uncontested medical damages. In accordance with the medical malpractice cap, the verdict was reduced to $2.2 million. Stanley said his bill would modify the cap to account for cases like Hervey’s.

“And this is why I call this Nancy’s bill,” Stanley said. “Because the way the cap is, in those rare occasions, Nancy’s care now becomes the family’s obligation.”

In the subcommittee meeting that evening, Hervey’s husband, Sheldon, and five jurors from the trial all spoke in support of the bill. The jurors said that after finding out about the cap, they were “personally outraged” and “shocked and angry” to find out how much of their verdict the Herveys actually received. 

“We determined compensation that was fair and just to our determination, but that was not upheld,” juror Sarah Huckins told the subcommittee.

The Medical Society of Virginia opposed the bill, citing the challenges of the COVID-19 pandemic. MSV president Dr. Art Vayer said the pandemic has placed an “incredible burden” on healthcare throughout the state.

“The resilience shown by Virginia’s providers and patients is commendable, and it will be several years before Virginia’s physicians, PAs, nurses and hospitals return to any sense of normal,” Vayer said in a statement from the MSV. “Altering the medical malpractice cap will increase insurance costs for all providers which would ultimately increase the cost of healthcare for patients.”

In addition to the MSV, multiple physicians and healthcare professionals spoke to the subcommittee in opposition. Representatives from the American Academy of Pediatrics, PatientFirst and the Virginia Dental Association all remarked that passing the bill would create cost issues and could make it difficult to retain physicians in Virginia. 

With the exception of Surovell, senators in the subcommittee expressed concerns about the seeming lack of common ground between proponents and opponents of the bill.

“I find it really upsetting that we feel like the doctors are being pitted against the people who have suffered these debilitating and life-altering situations,” said Sen. Jennifer Boysko, D-Fairfax.

“We need a comprehensive solution to this,” Sen. John Edwards, D-Roanoke, said before making the motion to shelve the bill. Edwards advocated for a “new look at this whole approach” to allow for stakeholders to discuss how to address the issue as a societal issue. 

Sen. Chap Petersen, D-Fairfax, gave indications of support despite seconding the motion to pass by the bill. Petersen said the issue would likely be revisited in a future session, noting his belief that the medical malpractice cap is not a long-term solution.

“I think the ice might finally be breaking on this issue,” Petersen said before noting that he was “not prepared” to repeal the cap in this session.

Joseph Cammarata, the Washington attorney who represented Hervey in 2019, ignited the push for relief from the cap. Despite the bill not passing in 2021, Cammarata referred to the results of the judiciary subcommittee as a “big win.”

“The legislators made it clear that this law as written, which does not protect those that are severely and permanently impaired and injured, catastrophically affected, that this law needs to be fixed, to protect those that are severely injured,” Cammarata said. 

As for the future of the legislation, Cammarata said he will continue to advocate for it and is optimistic that Stanley will reintroduce the bill in 2022.

“This law will be changed,” Cammarata said. “And I expect it to be next year. And if it’s not next year, it will be the year after next, because I’m not stopping.”