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No early ruling on the med mal cap

Judge Michael F. Urbanski

Judge Michael F. Urbanski

A federal judge in Harrisonburg has declined to rule on a constitutional challenge to Virginia’s medical malpractice cap before an underlying malpractice lawsuit is resolved.

Lawyers for a young patient suing a group of pediatricians asked U.S. District Judge Michael F. Urbanski to declare that the state’s statutory limit on recovery is unconstitutional under the U.S. and Virginia constitutions.

But Urbanski says he will not decide the issue unless and until the plaintiff gets a verdict in the case that would require a ruling on the cap.

Urbanski’s 18-page opinion is J.S. v. Winchester Pediatric Clinic PC (VLW 021-3-086).

Urbanski’s March 3 order marks a second recent setback for opponents of Virginia’s medical malpractice recovery cap. Legislation to drop the cap for cases of severe damages failed to make it through the 2021 General Assembly.

Commonwealth intervenes

Removal of the cap is the only way the plaintiff in Urbanski’s case could recover additional damages. He’s already settled for the statutory maximum from a group of radiologists.

The plaintiff, identified only as “J.S.,” was only 20 months old when he was injured in an auto accident in 2010. He says he still suffers from severe neurological problems and respiratory issues and faces lifelong related medical costs of more than $3 million.

He contends that the radiologists misread images that should have revealed his spinal cord injury. Of importance in the current lawsuit, he claims the pediatricians overlooked his symptoms of that injury.

J.S. is a West Virginia resident, giving the federal court jurisdiction. The defendant pediatricians of Winchester Pediatric Clinic, or WPC, denied liability and contested the amount of damages.

Alerted to the challenge to the Virginia medical malpractice cap statute, the commonwealth intervened and joined the pediatricians in arguing that the constitutionality of the cap was not ripe for adjudication since liability was not yet determined.

Immediate threat lacking

Lawyers for J.S. argued the issue was ripe, and they said it was time for courts to take another look at the cap in light of recent U.S. Supreme Court rulings addressing Bill of Rights provisions. J.S. “appears to anticipate reviving the argument that the Seventh Amendment right to a jury trial is violated by the statutory damages cap,” Urbanski said.

But federal courts avoid deciding constitutional issues unless such a decision is unavoidable, the judge said.

J.S. argued that the “immediacy and reality of the need for declaratory judgment is established by the immediate prospect of a medical malpractice trial and the fact that he anticipates that WPC will move to dismiss his case based on the damages cap,” Urbanski said.

But if the court agreed with J.S. that the cap were unconstitutional, it would amount to a mere advisory opinion, the judge said.

“Absent a determination by a factfinder the WPC is liable for his injuries, J.S. cannot show that he has sustained or is immediately in danger of sustaining a direct injury as a result of the damages cap,” Urbanski wrote.

Ripeness lacking

A similar analysis applied for standing and ripeness, the judge continued.

“In J.S.’s case, the issue of the constitutionality of the damages cap is not fit for adjudication because it is not purely a legal issue. Rather, the question hinges upon a future factual determination that health care professionals working for WPC caused or exacerbated J.S.’s injuries. That finding is uncertain at this point,” Urbanski wrote.

And J.S. did not meet a hardship test, either, the judge said.

“To be sure, J.S. does run the risk of incurring the costs of a trial, obtaining a favorable jury verdict, and not being able to collect damages from WPC if the court finds that the damages cap remains constitutional. However, saving the cost of litigation is not sufficient by itself to justify review in a case that is otherwise unripe,” Urbanski concluded.

J.S. is represented by lawyers from Michie Hamlett PLLC of Charlottesville and Robert S. Peck of the Center for Constitutional Litigation in Washington. WPC is represented by lawyers at Timberlake, Smith, Thomas & Moses PC of Staunton. The commonwealth is represented by Senior Assistant Attorney General Marshall H. Ross.

Legislation founders

Virginia’s cap on medical malpractice recovery currently stands at $2.45 million. Since the current law was enacted in 2011, the ceiling increases $50,000 each year until it reaches $2.95 million in July 2030.

In the 2021 legislative session, Sen. Bill Stanley, R-Moneta, proposed to eliminate the cap altogether. Even after he limited the measure to act as a “relief valve” from the cap only in cases of severe damages, the Medical Society of Virginia and other provider groups remained opposed.

Stanley’s cap relief bill was killed Feb. 1 in a Senate subcommittee.

Trial lawyer Joseph Cammarata, a key supporter, pledged to persevere with his mission to provide relief from the cap. Legislators indicated they hoped for more conversation between medical providers and the plaintiffs’ bar if the reform effort is revived.