If you imagine yourself as a trial attorney, it is easy to understand the motive behind reducing barriers to filing claims. Trial lawyers are all too familiar with the laws restricting suits and capping damages. It should come as no surprise that they have been seeking to “reform” prior medical malpractice statutes in Virginia. A bill was introduced in the General Assembly this year to remove the cap on damages against physicians, and it is likely a similar bill will be presented in next year’s session.
Such constant efforts are predictable, even in light of the generous cap on damages. Yet, one would expect healthcare providers to aggressively fight those proposals. However, unlike lawyers, physician income is not tied to a percentage of claims. Therefore, they do not have the same robust pecuniary interest in following current legislation. This article seeks to bridge that gap. Below you will find a primer on Virginia’s current law and a selection of successful efforts in other states– highlighting what can be done to improve the law (for physicians).
Benefits of Virginia Law
The cap on damages, Virginia Code Sections 8.01-581.15 and 8.01-38.1
- Starting in 2008, a cap on damages was set at $2 million, with annual increases of $50,000 beginning in 2012. The cap will reach $2.5 million in July 2021.
- Punitive damages are capped at $350,000.
- Why it matters: At common law, it would have been possible for a jury to award any reasonable amount of damages, which could be over $2.5 million.
Medical Review Panel, Virginia Code Section 8.01-581.2
- Either party to a case may submit to the Supreme Court of Virginia for review by a panel. Panels are comprised of two healthcare providers and two attorneys. A circuit court judge conducts the panel. The panel members review written evidence, as well as oral testimony upon request.
- Why it matters: The result is non-binding, however the results can be submitted as evidence in a jury trial. If the panel finds for the physician, it can be very compelling evidence to jurors.
Statute of Limitations, Virginia Code Section 8.01-243
- Typically two years, although certain exceptions apply for minors under 8, those who are incapacitated, and if certain information was concealed (For example: if it was not possible to know malpractice occurred, such as in the case of a retained sponge. In such an example, it would not be possible to know malpractice had occurred until the sponge is discovered). One important exception to the statute of limitations is the continuing treatment rule, whereby an action can be pursued if there was substantially uninterrupted treatment for the condition by the provider. In such a case, the two years toll from the last treatment.
- Why it matters: Actions are barred following the statute of limitations.
Standard of Care (as presented by an expert witness), Virginia Code Section 8.01-581.20
- The standard of care by which any act or omission will be judged is by the “skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty”. The practitioner must have practiced within one year of the alleged act or omission.
- Why it matters: It helps refine the pool of experts to those who can reasonably testify. In theory, it should also prevent experts from making claims about the standard of care which depart from actual standards of care (The fear being that an expert could impose an unreasonable standard of care on a physician).
Certification of a case at the time of service of process, Virginia Code Section 8.01-20.1
- Service of process is a prerequisite to most actions in court. It requires notifying the defendant (in this case a physician) by serving a copy of the complaint.
- Virginia law requires that at the time of service of process, an expert has been contacted who verifies that the standard of care has not been met and that the deviation from the standard was the proximate cause of the damages.
- Why it matters: If there were no hurdle to filing a claim, it would be possible to file a suit even in the absence of any deviation from the standard of care. This acts as an initial filter, prior to any potential suit.
Areas for Improvement in Virginia Law
Limitation of attorney’s fees
- Why it matters: Typically attorney’s fees are limited by statute or by authority of the state bar. Depending on the state, they are often around 1/3rd of any payout. Due to the large figures involved in a medical malpractice case, that is often a windfall for the plaintiff’s attorney. For instance, 1/3 of a $2 million case would be $666,666. It is unlikely that the actual work product of an attorney approaches the number of hours commensurate with such a fee. However, it does incentivize litigation against physicians. As a result, over 10 states have limitations on attorney fees.
Joint liability reform
- What it is: Often two or more physicians treat the same patient. In such a case, if negligence occurs both parties can be at fault—although not to the same degree. For instance, when one anesthesiologist starts a case and another finishes the case—whose fault is it if something goes wrong 5 minutes after handoff? In such an example, it would likely depend on what specifically happened and the individual circumstances. For that reason, fault can be apportioned on a percentage basis by a jury after they examine the facts.
- Why joint liability reform matters: Despite fault being apportioned by a jury based on the individual responsibility of the providers involved, the actual collection of the damages can occur in a non-equitable fashion. For instance, a physician who is 10% at fault can be made to pay the entire amount of the damages (if the other party is non-collectable). Such a result skews justice in favor of the plaintiff and against the physician.
Collateral Source Reform
- What it is: In essence, the collateral source rule allows double payment. As an example, consider a patient who due to malpractice is unable to work. A reasonable calculation of the patient’s lost income would first calculate his typical wages, and second subtract any amount paid through social security or long-term disability insurance. Otherwise, the plaintiff would be able to double collect through those models. In Virginia, double payment is the rule.
- Why it matters: Lost income should be limited to what is actually lost by the plaintiff. It should not be used to place a patient in a better financial position than if an incident had not occurred. Technically, long and short-term disability insurance are a bit more nuanced than social security, because in practice some of those benefits are paid back to the insurer following a settlement or award in a process called subrogation. Typically, the plaintiff’s attorney still receives his share of the amount subrogated. The results of both types of double payment can be substantial if spread over several years (or decades).
Given the very human nature of medicine, errors can only be reduced—never eliminated. As a result, there will always be tension between the law and medicine. The above reforms are certainly not exhaustive, but they do represent ways to ensure providers practice in a fair environment. Ultimately, anesthesiologists work tirelessly to ensure safety. Ensuring a fair legal environment means they can continue to focus on what matters most—the patients.
Note for the above Map, damages can be separated into non-economic and economic. Therefore, this map is a generalization. Moreover, some damages are indexed to inflation or include annual increases
(Virginia for example reaches $2.5 million this year).
Those states with caps between $500K and $2 million—have been listed as ≤ $2 million.
Joint liability reform has several nuances, which are often state specific.
Note: Although statutes listed are accurate to the authors knowledge, they are intended for educational value and should not be construed as legal advice for any providers facing claims. Each case is unique, and therefore providers should seek advice from counsel when specific issues arise.