Bill would increase cap on medical malpractice awards from $2.7M to $6M

A sweeping, last-minute rewrite of a limited bill about interest payments on medical malpractice lawsuits would more than double a current cap that often leaves victims with millions of dollars less than their lifetime of care will require.

The rewrite would increase the cap on medical malpractice awards from the current $2.7 million to $6 million, beginning next year.

It also extends the current two-year statute of limitations for most cases, by saying the deadline for bringing a lawsuit should start when patients become aware of the negligence or error and not when the incident happened. In many cases, patients don't find out until years afterward.

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"This is for patients, families, people who have suffered. And you know, we just want to make sure that they are fairly treated," said state Sen. Mark Obenshain, R-Rockingham, who sponsored the original measure, Senate Bill 536, as he urged the House Courts of Justice Committee to approve the rewrite.

"If we don't renegotiate and don't find a way to save the cap, we risk losing it altogether," he said.

"I brought this bill originally to try and relieve a little bit of pressure on the cap. I think the optimal solution is finding a solution that gives predictability to all in the health care community. I think it helps patients. I think it helps providers, I think it helps institutions," Obenshain said.

The cap, the result of an agreement between the lawyers who represent patients on one side and doctors, hospitals and insurance companies on the other, dates back to 1976, when it was set at $750,000. Adjusted for inflation, that cap would be more than $8 million now, said Elliot Buckner, a member of the Virginia Trial Lawyers Association's medical malpractice legislative committee.

"This is a number of years coming. It's year after year. Members of this body and others have advised the stakeholders that something needs to be done with medical malpractice. Something needs to be done. Bring us something, something needs to be done," he said.

"This year, we received that same message from the speaker, and he said, something needs to be done. It needs to be done this year," he said.

Later, Speaker Don Scott, D-Portsmouth, told the Richmond Times-Dispatch that it is time to look at the cap.

But lobbyists for the Virginia Hospital and Health Care Association, along with the state's biggest medical malpractice insurance company, said raising the cap would cause health care costs to rise and mean insurers would stop offering the coverage.

Rob Shinn, a lobbyist for The Doctors Company, which sells malpractice insurance, said if the firm did offer coverage up to the $6 million cap it would be very expensive. He said the usual coverage nationwide is for $1 million per occurrence.

Charlottesville attorney Les Bowers said insurers still offer coverage in states with higher caps than Virginia's, and argued that the revised bill does not go far enough.

"I try medical malpractice cases on behalf of plaintiffs all over Virginia and North Carolina. … And one of the things that I find most common is that everyone thinks a cap is a good idea until it affects them and their family," he told the committee.

"Now behind me are a whole bunch of lobbyists from multibillion dollar organizations (saying) that they cannot absorb an increased cap to $6 million, which is less than the inflation-adjusted cap of 1976, is just frankly wrong. The notion that people will stop writing policies in Virginia, it's just frankly wrong," he said.

"I cannot begin to convey to you the tragedy of representing someone who is paralyzed, who is brain-injured, who is going to require $5 (million), $10 (million), $15 million of care for decades, and tell that person, not only will your case not settle for that amount, but it won't settle for the cap, because the net effect of the cap is that when the people who follow me know that the most that they can ever have to pay is the cap, they will never pay the cap," he said, pointing to the line of hospital, business and insurance lobbyists waiting to tell the committee they oppose the bill.

Such a sweeping rewrite, with just days to go to bring the measure before the full House of Delegates and, if that body approves, to the Senate, is unusual and troubled some House committee members.

"I struggle with this issue," said Del. Jason Ballard, R-Giles. "On the one hand, I have concern for small rural hospitals that they struggle under this structure. But as Mr. Bowers put it, the other side of that equation is protecting the patient from medical negligence, and that's also a huge concern.

"Virginia is in the very small minority of states that have a total cap," he said. "I don't love the way this played out, but I do think where we are right now, this is a good deal."

The committee approved the rewrite by a bipartisan 18-4 vote.

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