The bipartisan effort (SB 1107) to modify Virginia’s limit on the recovery of damages in medical malpractice actions is over for the current legislative session. Still, several senate judiciary members agree the commonwealth should evaluate the cap that serves as a ceiling on all the damages a malpractice victim suffers.
At the Feb. 1 subcommittee meeting, Sen. J. Chapman Petersen said elected representatives are responsible to victims when there is long-term and catastrophic quantifiable damage. He doesn’t think the cap is “sustainable as a long-term solution,” but wasn’t prepared to repeal it in 2021, citing COVID and the need for further study. “I think that the ice might be finally breaking on this issue,” he said.
Sen. John Edwards said, “I’d like to take a more comprehensive look at this whole approach and look at what other states are doing. Maybe get some groups together to figure out how we can deal with this as a societal problem, not just a doctor or hospital problem.”
Also weighing in was Sen. Jennifer B. Boysko, who said, “I am intrigued by [the] idea of setting up [a victim compensation] fund or doing something so that we do leave those families as harmless as possible. I hope we could think of studying this or putting it into another posture where we can find a win-win.”
Nancy’s case a “punch in the gut”
Attorney Joseph Cammarata spearheaded efforts to change Virginia law and modify the cap on the recovery of damages for medical malpractice. He was inspired by his friend and neighbor, Nancy, who suffered catastrophic malpractice injuries following routine back surgery.
A 1976 Virginia law puts a “cap” on the total jury verdict in every medical malpractice case, no matter how substantial the medical bills and other damages. In Nancy’s case, the cap was $2.2 million, but her economic damages and medical costs were $9.3 million.
“She effectively was allowed zero compensation for the destruction of her quality of life and must rely on taxpayer-funded public health insurance for her ongoing medical treatment,” said Sen. Bill Stanley, bill patron for SB 1107. “The jurors listened to the evidence and then awarded in excess of the cap only to find out that their hard work and their dedicated jury service was for nothing.”
Five jurors from Nancy’s case, including Forewoman Jessica Zucal and Dr. Christopher Sarampote, testified at the subcommittee meeting to support the bill. Dr. Sarampote, a clinical psychologist who works with vulnerable patients, called the damages cap in Nancy’s case a “punch in the gut.”
“I was dumbfounded how my state could adhere to a practice that seems so skewed to the detriment of my fellow citizens. It felt morally wrong,” he said. Zucal added she was “personally outraged” by Nancy’s case. “Legislation that privileges insurance companies – a billion-dollar industry – over the needs of a catastrophic injury victim is unjust.”
Sen. Surovell, co-patron of SB 1107, outlined several points supporting the bill. “This [cap] is one of the policies that’s been on the books of the commonwealth for a long time and has really troubled me,” he said. “Effectively, the legislature has made the decision that when a certain group of people in businesses make mistakes, we’re going to socialize that cost on taxpayers instead of isolating the costs on the people who caused the harm.”
He also noted some studies show insurance rates correlate with the bond market and insurance returns, not caps. “Insurance companies basically play with massive quantities of money. And when returns go down, they start squeezing the people that pay their premiums to get them paid,” Sen. Surovell said. “They have nothing to do with settlements or verdicts. In fact, the companies in Virginia had made billions of dollars in premiums that they haven’t made in other states because of this cap.”
The senator also argued the cap on damages causes many cases to go to trial in Virginia that would never go to trial in other states. “States that don’t have the cap have unlimited exposure. That’s what forces settlements and gets cases out of the system instead of causing them to spend lots of time in court. Having a cap [has] caused our court system to be clogged.”
Cap creates a “bizarre situation”
Sen. Surovell said he’s heard about cases where the bills caused by the malpractice are so substantial, the liens on the claim are higher than the cap. “Anything that’s recovered will go to the government or the carrier. [The victim] doesn’t get any justice. It’s a bizarre situation: Somebody horribly injures somebody, but nobody will take the case because there are too many liens in the case, and the government will take the money.”
He added, “In our trial by jury system of government, which [Virginia] pioneered, we decided that people should decide what these cases are worth, not legislatures. I believe that this policy as it stands today is unconstitutional, which is consistent with what many other supreme courts around the country have started to find over the last 10 years. And it’s just a matter of time before a court takes this down if we don’t do it ourselves.”
The end of SB 1107 … for now
Dr. Todd Parker, an emergency medicine specialist who testified against the bill on behalf of the Virginia College of Emergency Physicians, said because of COVID, it’s not the right time to make changes to the cap. However, he also indicated a willingness to address medical malpractice caps in the future.
“I see cases where things go wrong, and there’s no question – on both sides – that we could work to improve the medical malpractice and medical legal system in Virginia. But that requires a comprehensive solution, not a unilateral solution,” Dr. Parker said. “We would always be willing to discuss ways to reform medical malpractice in Virginia to make it better for doctors (and) to make it better for patients.”
As a champion for victims’ rights, Cammarata said something needs to be done to help Virginians who fall victim to medical malpractice. “Despite the senate judiciary subcommittee’s action to pass by the bill for the current legislative session, I consider it a win. The legislators publicly stated their view there’s a need to modify the cap.”
Cammarata added, “SB 1107 sent a clear message to legislators and the medical and insurance lobbies: It’s time for action. I will not rest until we can ensure other malpractice victims don’t bear the same injustice as Nancy.”
Data on malpractice insurance affordability
At the meeting, Sen. Surovell refuted Independent Insurance Agents of Virginia’s testimony that there is an availability and affordability crisis for medical malpractice insurance.
“I asked the State Corporation Commission’s Bureau of Insurance Agents & Agencies for statistics on the affordability of malpractice insurance because I keep hearing that we need this cap to keep insurance in an affordable place,” he said.
Sen. Surovell requested a comparison of malpractice premiums for Virginia and Texas and learned Texas has a cap of $250K on noneconomic damages but no cap on economic damages. Using Nancy’s case as an example, he said, she might have received a $250,000 cap on pain and suffering, but her $9 million in medical bills would have been covered.
“For internal medicine, the premiums in Virginia are a little bit lower on the high end, a little bit about the same on the low end. For OBGYN, by the way, which has much more malpractice risk than internal medicine, Virginia premiums ranged from $31K a year to $109K. Whereas in Texas, which doesn’t have a cap like we do, the premiums range from $25K to $101K.”
Sen. Surovell added, “In other words, it is cheaper to get medical malpractice insurance as an OBGYN in Texas, which has no cap, than it is in Virginia. So can you explain to me what this whole insurance affordability concept is when in states that don’t have a cap, it’s cheaper to get insured?”