Virginia's Medical Malpractice Cap on Damages

May 10, 2021 | Medical Malpractice

For years, we have known that Virginia’s medical malpractice cap resulted in unfair outcomes. However, the Washington Post recently featured an opinion piece from an attorney who clearly outlines the issues with this system.

The author represented a client who was deprived of oxygen for 23 minutes during a routine surgery, leading to the need for 24-hour care and the accumulation of $9.3 million in medical and other expenses. The Virginia jury returned a verdict of $35.6 million, but Virginia’s medical malpractice cap reduced that to just $2.2 million, which wasn’t even enough to cover her medical bills.

Below, we discuss medical malpractice in Virginia, caps, and the need for change in this broken system.

Virginia’s Medical Malpractice Cap Compared to Other States

Virginia’s medical malpractice cap is $2.45 million for verdicts returned between July 1, 2020 through June 30, 2021. This is the maximum amount of money that a plaintiff can recover in a medical malpractice case, regardless of the extreme negligence of the healthcare provider or the damages the victim endures. The cap increases each year by $50,000 until it reaches its high of $3 million in 2031.

Plenty of other states have medical malpractice caps. For example, there is a malpractice cap in Maryland of $845,000. However, like many states, this cap only applies to non-economic damages, like pain and suffering. There is no cap in Maryland and many other states for economic damages, which are the direct losses caused by the negligent treatment, like medical expenses, lost earning capacity, and future medical care. Only one other state (Nebraska) has a medical malpractice cap that is as restrictive as Virginia’s.

History of Medical Malpractice Damages Cap in Virginia

Confronting a medical malpractice crisis in the 1970s, the Virginia General Assembly passed The Medical Malpractice Act in 1976. The law included a provision to cap all damages stemming from medical malpractice cases at $750,000, as well as many other provisions related to these types of cases. The lawmakers who passed the law said it was necessary to ensure that medical malpractice insurance would continue to be available and affordable for healthcare providers in the state.

Subsequent legislation increased the cap to $1 million in 1983. In 1999, the Virginia Trial Lawyers Association and the Medical Society of Virginia reached an agreement to increase the cap to $1.5 million and then incrementally increase the cap each year until 2031. The Virginia General Assembly made this reform.

Numerous plaintiffs have attacked the malpractice cap in Virginia and argued that it is unconstitutional. However, the Virginia Supreme Court has repeatedly upheld the law.

The most recent attempt to change the Virginia medical malpractice damages cap occurred in late 2020 with the introduction of SB 1107. The bipartisan initiative, commonly referred to as “Cancel the Cap,” sought to eliminate the cap altogether. It gained legislative momentum during the last legislative session, but it ultimately died in committee in 2021.

For now, the Virginia malpractice limits in 2021 continue to apply to cases.

The Issue with Medical Malpractice Caps

Imagine going into the hospital for a routine surgery. During the surgery, your fatigued surgeon makes a mistake. Because of this mistake, you suffer a profound traumatic brain injury and massive blood loss. Now, your cognitive, motor function, and bladder control abilities are irreparably affected. You must undergo daily medical treatments and physical therapy. You can no longer work and require round-the-clock care. Your quality of life is a fragment of what it used to be.

Or, imagine that you are pregnant for the first time. For nine months, you have looked forward to the birth of your son and carefully took care of your health. A few days before your due date, you don’t feel him kicking or moving as much as normal. You visit your doctor and explain your concerns. Instead of listening to you, he brushes you off and tells you to go home. You return to the doctor the next day and you find out that your baby has died. He had his umbilical cord wrapped around his neck. Had the doctor just taken your concerns seriously, he could have performed a test and realized the emergency. Instead of saving your child’s life, he caused his death.

These are the types of medical malpractice cases Bertram & Murphy handles regularly. And we are tired of the unjust results. While a multimillion-dollar verdict may seem like a lot of money, it is often not enough in a medical malpractice case that causes a victim to require ongoing medical treatment. These victims, our clients, face a lifetime of additional medical care, lost earning capacity, and tremendous pain and suffering. Likewise, the low threshold surely does not adequately compensate a family for the loss of their loved one. It is for these very reasons that several other states have found such damage caps to be unconstitutional.

Contact Us for Help with Your Medical Malpractice Claim

While we don’t agree with Virginia’s medical malpractice cap, we can work within the confines of it and continue to support efforts to change the law. We will fight for every dollar you deserve and that is permitted under the law.

With more than 30 years of experience, our medical malpractice attorneys at Bertram & Murphy take a unique approach to these complex cases in D.C., Maryland, and Virginia. As former defense attorneys for health care providers, our medical malpractice lawyers have an insider’s perspective on how medical providers treat patients and defend against medical malpractice claims. We use these invaluable insights to your benefit, crafting aggressive litigation strategies aimed at recovering maximum compensation.

When we get started, a medical negligence attorney from our firm will work quickly to assess the facts of your case and consult with a medical expert to determine the merit of your legal claim. We do this at no cost to you. If we believe you have a case, we will move forward immediately to demand the full and fair compensation you deserve. Contact us today to get started.

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