We may be reaching the end of Virginia’s longstanding and patently unjust limitation on damages in a medical malpractice lawsuit. Under Virginia law, the amount recoverable in a medical malpractice lawsuit is capped by statute. It does not matter the degree of negligence, sky-high medical bills, or the pain and suffering of patients and loved ones. Recent efforts by the Virginia legislators and Virginia attorneys see may end this unjust practice.
On January 13, 2021, Virginia state Senator Bill Stanley (R-Moneta) formally introduced S.B.1107, a bill to eliminate the cap on medical malpractice damages. The bill has bipartisan support as Virginia state Senator Scott Surovell (D-Fairfax) agreed to co-sponsor the measure. Perhaps most interesting to the general public, the proposed bill is being shepherded through the Virginia legislature by an attorney who famously represented Paula Jones in her sexual harassment lawsuit against former President Bill Clinton in the 1990s.
A lawsuit filed in federal court also contests the Virginia medical malpractice cap. In the Western District of Virginia, before Chief Judge Michael Urbanski, a lawsuit has been filed challenging the constitutionality of the statute on both federal and state grounds.
The Virginia medical malpractice cap is clearly unjust and should be overturned. The reasons for overturning the cap are legion:
- The cap drives up Medicare costs. Instead of insurance companies paying for the damages a plaintiff receives in a successful lawsuit, the (often staggering) amounts are paid by Medicare. In other words, the amounts are paid for by you – the taxpayer.
- The cap disfavors persons injured by medical negligence. In automobile accidents and other personal injury lawsuits, there are no statutory caps on the damages that can be recovered.
- The cap undermines incentives for better care. Because healthcare providers know their legal liability in terms of recoverable damages is limited, their incentive to provide better care and avoid costly damages awards is significantly reduced.
- The cap burdens the judicial system. The medical malpractice cap increases the burden on the judicial system because it encourages defendants to pursue cases all the way to trial as they know possible recoverable damages are limited.
- The cap violates the Seventh Amendment right to trial by jury and corresponding language in the Virginia constitution.
Senator Surovell puts it most concisely when he says “Virginia’s medical malpractice cap is one of the most god-awful laws we have on the books right now.”
To provide a recent example, a 59-year-old mother of two underwent a lumbar procedure to treat intractable back pain. As a result of the surgery, the patient was severely disabled. The patient had lost wages of $1 million and an $8.7 million life care plan. The case was tried to a jury who returned a verdict of over $35,000,000. By law, the judge reduced the amount to the medical malpractice cap of $2.2 million – woefully inadequate compensation for a patient requiring around-the-clock medical care for the rest of her life.
The efforts to overturn medical malpractice caps are not unique to Virginia. While roughly twenty-nine states have malpractice caps in some form, there is growing momentum throughout the country to overturn these unjust laws. Courts in Wisconsin, Oregon, and North Dakota have ruled various forms of malpractice caps unconstitutional in the past three years.
Here’s to hoping Virginia continues this trend.
 Va. Code § 8.01-581.15. Limitation on recovery on certain medical malpractice actions
 Kang, Peter. Va. Atty, Lawmakers Seek to Abolish Med Mal Damages Cap. Law360 (Jan. 13, 2021). Available at https://www.law360.com/personal-injury-medical-malpractice/articles/1344641/va-atty-lawmakers-seek-to-abolish-med-mal-damages-cap.
 Veith, Peter. Taking Off the Cap: Senators Target Change in Medical Malpractice Law. Virginia Lawyers Weekly (Dec. 14, 2020). Available at https://valawyersweekly.com/2020/12/14/taking-off-the-cap-lawyer-senators-target-change-in-medical-malpractice-law/.
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