Cancel the Cap
A bipartisan legislative initiative to eliminate the cap on the recovery of damages in medical malpractice actions in Virginia and help medical malpractice victims receive complete justice.
On Oct. 22, 2015, Nancy underwent routine lower back surgery in an effort to cure her chronic back pain. The surgeon was to remove a lower back disc and fuse the surrounding vertebrae. During the surgery, the neurosurgeon caused his surgical instrument to go too deep into the disc space and he cut Nancy’s common iliac artery in her stomach. As a result, Nancy was not able to get oxygen to her brain for approximately 23 minutes.
Although Nancy was revived, she was brought back to a life of total dependence; loss of function; and cognitive, emotional, and behavioral dysfunction requiring 24-hour care. At trial, the jury was presented with evidence of Nancy’s permanent condition and of a plan which detailed Nancy’s lifetime needs.
The cost of those lifetime needs, with 24-hour homecare, was approximately $7.5 million. Nancy’s other economic losses totaled approximately $1.8 million. The neurosurgeon and his insurance company did not contest the permanency of Nancy’s condition or her total economic losses of $9.3 million. The jury returned a verdict in favor of Nancy and against the neurosurgeon in the amount of $35,620,902. Unfortunately, due to the current law, which limits the amount a victim of medical malpractice can recover, Nancy’s recovery was limited to only $2.2 million.
Cancel the Cap Bill Overview – SB 1107
Cancel the Cap is a proposed bill (SB 1107) to eliminate the cap on the recovery of damages in actions against Virginia health care providers for medical malpractice. Nancy will not benefit from this legislation, but its passing will allow future medical malpractice victims in Virginia to receive full justice.
The proposed bill amends and reenacts § 8.01-581.15 of the Code of Virginia, relating to the limitation on recovery in certain medical malpractice actions. SB 1107 will eliminate the cap of damages in actions against health care providers for medical malpractice where the act or acts of malpractice occurred on or after July 1, 2021.
The Cancel the Cap bill will:
- Allow seriously injured Virginians to be fairly and fully compensated for harm caused by the wrongdoer.
- Ensure Virginia taxpayers don’t have to foot the bill for malpractice.
- Reduce the burden on an exploding public health insurance system.
- End the current law’s protection of medical providers from full accountability for the harm they cause victims of their negligence.
- Eliminate placing arbitrary values on human life.
Take Action for Medical Malpractice Victims
- Contact your legislators and tell them you support the Cancel the Cap bill (SB 1107).
- Contact Senate Judiciary Committee and House Courts of Justice Committee members and tell them you support SB 1107
- Follow #cancelthecapva on social media and include the hashtag in any posts.
Current Virginia Code on Medical Malpractice Limits
Current Virginia law (§ 8.01-581.15) places a cap, or limit, on the amount of money medical malpractice victims can recover, regardless of the harms and losses they suffer. The current recovery limit is $2.45 million. The amount increases by $50,000 per year but will stop at $2.95 million in 2031.
The cap became active after the General Assembly passed The Medical Malpractice Act on July 1, 1976. This landmark legislation included a provision establishing a medical malpractice cap that was initially set at $750,000. Before the Medical Malpractice Act’s passing, there were no limits placed on damages awarded to plaintiffs in medical malpractice cases.
The General Assembly also repealed any Arbitration of Medical Malpractice claims during its 1997 Session, and in 1999 passed a new limitation on recovery in certain malpractice actions.
The current cap:
- Favors insurance companies at the expense of victims.
- Shifts the burden of caring for the victims to taxpayers.
- Disproportionately negatively impacts persons of lower socioeconomic means.
- Results in more cases going to trial, which clogs an overburdened court system.
- Provides no incentive for insurance companies to settle since they know their risk of loss is contained and controlled.
- Forces victims to expend considerable resources to go to trial, which diminishes the amount of money they will have available to pay for future care.
- Is unfair and unjust. If two people are injured the same way and suffer the same harm – one injured from medical negligence and the other not – the medical negligence victim should not get less for the same harm.
“Medical malpractice insurance companies are happy with a system that imposes artificial limits on responsibility, but it’s unfair and unjust to medical malpractice victims. This is not a political issue, it is a human issue. If someone is seriously injured due to negligence, the victim cannot get complete financial relief for their harms and losses. This ultimately places a burden on taxpayers who pay for the victims’ care through taxpayer funded public health insurance.”
– Attorney Joseph Cammarata
Other Stories of Recovery Injustice
Steve was a 65-year-old executive earning $150K annually when he went to the hospital for routine surgery on a slipped disc. While recuperating, he suffered a stroke caused by a spinal hematoma the hospital failed to diagnose. It left him permanently brain-damaged, partially paralyzed and unable to work. He didn’t pursue a medical malpractice suit because he would recover $0 after repaying Medicare. Since Steve can no longer earn an income, he’s now on Medicaid – with Virginia taxpayers footing the bill for his lifetime of care.
A hospital order error resulted in permanent brain damage and partial paralysis for 24-year-old James who underwent gallbladder surgery. He wasn’t placed on the proper overnight monitor, so when we went into cardiac arrest the nurses weren’t alerted. James didn’t pursue a medical malpractice suit because his future medical bills and medical care expenses would exceed $5.5 million. Even if he was awarded the then-available $2.1 million cap, all of it would repay Medicaid, leaving him with zero compensation. And the medical malpractice insurance company would pay nothing for the hospital’s negligence.
During spine surgery, 18-year-old Tony was permanently paralyzed from the neck down when the surgeon decided to perform a more aggressive procedure without his permission. He requires a ventilator to breathe and is bed-bound for the rest of his life. Experts said it would cost $40 million for his lifetime of care, but the cap limited Tony’s recovery to $2 million. Medicaid, funded by taxpayers, will pay Tony’s medical costs for the rest of his life.
Do you have a medical malpractice story you’d like to share? Send an email to firstname.lastname@example.org
Tools & Resources
- Virginia General Assembly
- Who’s My Legislator?
- Senate and House Judiciary Committees
- How to Track a Bill
- SB 1107 Medical malpractice; limitation on recovery
- National Association of Insurance Commissioners Countrywide Study of Medical Malpractice Premiums Earned in Comparison to Claims Paid (see p. 32 for VA data)
- National Practitioner Data Bank Report of Virginia Medical Malpractice Payments and Claims from 2005-2019
- State-by-state analysis of medical malpractice caps
- National Medical Malpractice Advocacy Association
Bill History & Bipartisan Support
When it comes to championing victims’ rights, Attorney Joseph Cammarata doesn’t hesitate to take on formidable, powerful opponents.
Nancy’s case inspired Mr. Cammarata to spearhead efforts to change Virginia law to hold medical wrongdoers fully accountable for the harms and losses they caused to the victims of their negligence.
He brought the issue to the attention of State Sen. Bill Stanley (R-District 20) who agreed to be the chief patron of a bill to change the law. Sen. Stanley introduced legislation known as SB 1107. State Sen. Scott Surovell (D-District 36) is a co-patron of the bill.
- State Sen. Bill Stanley
- State Sen. Scott Surovell