What to know about Virginia’s new med-mal reporting law

In a prior analysis, I examined the Virginia legislature’s rejection of a sweeping proposal to overhaul the state’s medical malpractice damages cap. That proposal would have doubled the cap from $3 million to $6 million, allowed prejudgment interest, expanded the statute of limitations and imposed new insurance requirements on nursing homes.

Instead, the General Assembly passed a narrower, reconciled version of Senate Bill 536 that left the existing damages cap schedule under Va. Code § 8.01-581.15 untouched but created a new reporting framework requiring commercial insurers and self-insured hospitals to disclose detailed malpractice claims data to legislative leaders.

Rather than sign or veto the reconciled bill, Gov. Abigail Spanberger returned it to the legislature on April 12 with a set of proposed amendments that reshaped several key aspects of the reporting framework. On April 22, the amended reconciled bill was enacted, with an effective date of July 1.

Bottom line

The medical malpractice damages cap remains unchanged, but a new reporting law takes effect on July 1, with an initial disclosure deadline of Oct. 1. The governor’s amendments broadened who must report, redirected all disclosures through the State Corporation Commission‘s Bureau of Insurance (the “Bureau”), strengthened confidentiality protections and eliminated the most sensitive reporting metric. However, it also expanded the scope of the law beyond hospitals to reach a wider range of healthcare entities.

Here are some of the law’s key changes:

Expanded scope

Unlike the original bill that applied to only hospitals or health systems licensed under Va. Code § 32.1-123 that self-
insure or maintain retained-risk arrangements, the enacted law applies to every “medical care facility, as defined in § 32.1-3, or other health care provider” that maintains self-insurance, captive insurance, risk retention arrangements or other retained financial risk. As a result, Virginia healthcare entities that did not consider themselves subject to the original bill should assess whether they now fall within the enacted law’s broader reach.

Eliminating revenue metric

The original bill required self-insured hospitals to disclose total malpractice liability expenditures expressed as a percentage of the hospital’s total patient service revenue. The enacted law eliminates this requirement, leaving three categories of disclosure: (1) the number of covered physicians and providers, (2) claims activity, and (3) malpractice expenditures. This is a meaningful change. The
revenue-percentage metric would have provided a uniquely revealing window into each hospital’s financial exposure relative to its operations.

Anti-duplication provision

The enacted law adds a practical provision to prevent duplicative reporting: A healthcare provider is not required to report information that has already been included in a report submitted by the entity providing its self-insurance, captive insurance or risk retention coverage. In other words, if a hospital system’s captive insurer files the required disclosures, individual hospitals covered by that program need not file separate, duplicative reports. Hospitals should confirm with their insurers or risk retention groups whether coverage-level reporting will satisfy their individual obligations.

New disclosure requirement

For commercial insurers, the enacted law adds a requirement not found in the original bill: Insurers must now disclose the identity of the named insureds under their medical malpractice policies. Hospitals insured by commercial carriers should be aware that their identity as a named insured will be part of the insurer’s disclosure to the Bureau.

Centralization

Perhaps the most structurally significant change involves where disclosures are submitted and how they are processed. The original bill directed all reporting to the chairs and ranking minority members of the House and Senate
Courts of Justice committees, with the clerks of each chamber making the information publicly available on the
General Assembly’s website. The enacted law redirects this entire process through the Bureau of Insurance. Disclosures must now be submitted to the Bureau in a uniform format that it prescribes that is consistent with the format of claim-reporting requirements already established under Va. Code § 38.2-2228.2. The Bureau is responsible for compiling and analyzing the data, preparing an aggregate summary report and submitting that report to the legislative committee leaders. Importantly, the Bureau’s aggregate report (not the raw disclosures) is what will be made publicly available on the General Assembly’s website. This is a significant structural improvement and reduces the risk of raw data being taken out of context or used selectively in public debate.

Provider comparisons

The enacted law directs the Bureau to present data, to the extent practicable, “in a manner that allows comparison among healthcare providers by size, region, or type of facility,” using anonymized or de-identified formats. While the law prohibits identifying any individual provider, hospitals should be aware that comparisons by size, region or facility type could narrow the field enough to make identification possible as a practical matter. This provision warrants careful attention when preparing disclosures.

Strengthened confidentiality

The original bill stated broadly that disclosures would be confidential and exempt from the Virginia Freedom of Information Act except in aggregate form. The enacted law replaces this with a more detailed and protective mechanism. Reporting entities may designate specific data as confidential proprietary information upon submission, provided they: (i) invoke the exclusion in writing, (ii) identify the protected material, and (iii) state the reason protection is necessary. Information properly designated as confidential will be protected from subpoena responses and public inspection.

Officer certification requirement

Disclosures must be “certified as accurate and complete by an officer of the reporting entity.” This places personal responsibility on a hospital officer for the accuracy of the filing.

Extended initial deadline

The original bill set the first disclosure deadline as Sept. 1, 2026. The enacted law extends this by a month, to Oct. 1. Subsequent annual disclosures remain due on or before March 31 of each year for the preceding calendar year.

Verdicts exceeding cap

Both the original and enacted versions require all reporting entities to submit a list of verdicts exceeding the statutory cap. Each entry must include the verdict amount, the amount recoverable after application of the cap and the year the cause of action accrued. No personally identifiable information may be disclosed. This provision is clearly designed to build a public record demonstrating the gap between what juries award and what plaintiffs can recover.

Automatic sunset

Both versions contain the same expiration mechanism: The reporting requirements expire upon the effective date of any future legislation establishing a new limitation on recovery for medical malpractice actions. This confirms the legislative intent that the reporting framework is a temporary, data-gathering tool designed to inform future changes to the cap.

Strategic implications

Virginia’s medical malpractice damages cap is intact but is under active review, and the data collected under this new law will fuel the next round of legislative efforts to increase it. With the Oct. 1 initial deadline approaching, Virginia hospitals and healthcare entities should consider taking the following steps: 1) Determine whether an institution falls within the enacted law’s expanded definition of “medical care facility” or “other healthcare provider;” 2) coordinate the production of the required materials with insurers or risk retention groups; 3) compile the necessary information for disclosure; 4) identify and designate confidential proprietary information; 5) designate a certifying officer; 6) monitor the Bureau’s prescribed format; and 7) prepare for future debates on raising the medical malpractice damages cap.

Justin St. Louis is of counsel in the Medical Malpractice & Health Care practice at national law firm Wilson Elser. He practices in the firm’s Washington, D.C., office.