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| Shapiro, Appleton & Washburn

Tort reform has been a major buzz word in the past decade for its supposed impact on medical costs. While many studies have shown jury awards in medical malpractice suits have no impact on medical costs, the push for tort reform continues.  One approach toward tort reform is to limit the amount of damages (i.e. money) a plaintiff can receive. Virginia, unfortunately, embraced this reform effort and placed a cap on medical malpractice damages.

A medical malpractice cap prevents a plaintiff from recovering damages over the capped amount – regardless of what the plaintiff’s actual injuries cost or what a jury awards. Virginia’s medical malpractice damages cap sets out a schedule that increases the cap by $50,000 on July 1 each year. There is a table in the state statute that sets out the capped amount every year until 2031, when the cap will be $3 million. As of July 1, 2014, the cap is $2.15 million. Punitive damage awards are calculated separately and are capped at $350,000. This means that if a jury awards you $5 million in a medical malpractice case, you not be able to recover that amount. You are “capped” at $2.15 million.

The date that matters for purposes of the cap is the date the injury actually occurred. So, if you were injured in August 2012 and a jury reaches a verdict in your case today, the maximum amount you can actually receive – regardless of how much more the jury awards you – is $2.05 million, which was the cap in August of 2012. This means the current cap of $2.15 million applies to injuries caused by medical malpractice that occurred between July 1, 2014 and June 30, 2015.

A major problem with the statutory cap on damages is that it completely disregards the possibility that a plaintiff’s actual injuries could exceed the cap. A victim’s actual damages may easily exceed $2.15 million in medical bills alone if the injury is permanently disabling or requires lifetime medical care. Who picks up the rest of the bill? Well, it’s usually you, the taxpayer. This is because permanently disabled victims who cannot obtain full-time employment routinely wind up on Medicaid or other need-based program.

A cap on damages boils down to a slap in the face of plaintiffs who were severely injured, through no fault of their own, by medical negligence. If a jury decides a plaintiff has shown their injuries deserve a certain amount of compensation, why should we question their decision? After all, the jury heard the evidence and are best equipped to value a plaintiff’s injury, not a legislature removed from the facts of the case. For the time-being, the medical malpractice cap is the law in Virginia, but we can hope that one day the law will be changed.

One Comment

  1. Gravatar for jc

    I totally agree with Jim. Great article!

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