Despite pressure for reform in both the state Capitol and a federal courtroom, Virginia’s steadily rising medical malpractice cap remains unaltered.
A proposal to create an exception for cases of severe injury foundered Feb. 7 when veteran state legislators refused to renege on a 2011 agreement to leave the cap in place until 2030, and a constitutional challenge in Harrisonburg federal court was rendered moot when a medical malpractice lawsuit was settled in January.
The Virginia cap on recovery in medical malpractice actions increases $50,000 each year, based on the date of the alleged act of malpractice. The current cap is $2.5 million. The schedule of increases tops out at $3 million in 2031.
The cap schedule is the product of two years of negotiation among doctors, hospitals and plaintiffs’ lawyers. The General Assembly overrode a governor’s veto to enact the incremental cap in 2011.
Virginia is among 33 states, Guam, Puerto Rico and the U.S. Virgin Islands that have some form of limitation on the amount a plaintiff can pocket in a medical liability case, according to the National Conference of State Legislatures. Sixteen states and the District of Columbia lack any damage award limits or caps. Connecticut and Minnesota allow for court review of damage awards, but do not specify a specific limit or cap, a recent NCSL report said.
Despite the decade-old truce among the major players in the tort reform arena, Sen. Bill Stanley, R-Moneta, has sought for two years to remove or weaken the absolute ceiling on malpractice recoveries. His efforts were encouraged by attorney Joe Cammarata of Chaikin, Sherman, Cammarata & Siegel, who saw a $35.6 million jury verdict slashed to $2.2 million in 2019.
The net award after the reduction was less than 10% of the projected medical costs for the injured patient, according to the patient’s husband, who spoke at a Senate hearing.
“Every juror was stunned” to learn of the reduced judgment, jury member Stuart Nagurka told senators on Feb. 7, urging reform.
“Forget 20-year deals. Legislators are elected every other year to make new laws,” Nagurka said.
“Legislatures come and go, and we run this place, not interest groups,” said Sen. Scott Surovell, calling for an exception to the cap for severe, permanent injuries.
But two senators who backed the bargain of 2011 said the Assembly should honor the deal.
“It just chagrins me that we come back and try to abrogate that agreement that explicitly was reached,” said Sen. Thomas Norment, R-Williamsburg.
“We should live with that,” Sen. Richard Saslaw, D-Springfield, added later in the hearing.
The bill died on a 12-3 committee vote.
Lawyers for a boy now in his teens targeted Virginia’s malpractice cap in a lawsuit aimed at expanding the youngster’s recovery for lingering effects of a 2010 car wreck. He blamed physicians for overlooking evidence of his neurological injuries.
Having settled for the cap with his claim against one set of providers, the plaintiff asked a federal judge to declare the cap unconstitutional so he could recover against a second set of doctors.
Last year, Harrisonburg U.S. District Judge Michael F. Urbanski said that he would not rule on the constitutional question unless and until the youngster won a verdict against the second practice group.
Urbanski’s decision was J.S. v. Winchester Pediatric Clinic PC (VLW 021-3-086).