Damages Cap Now on Tap – A VA Lawyers Weekly Article

In Virginia, there is no justice for catastrophically injured victims of medical malpractice. Since 1976, their inalienable rights as American citizens to trial by jury and to equal justice under the law have been stripped from them for no better reason than to keep insurance companies profitable. Meanwhile, insurance companies charge higher and higher premiums to doctors, blaming victims’ lawyers and American citizens who sit on juries, hear evidence, and make careful decisions.

Virginia’s “cap” on the amount of money a victim of medical malpractice can recover in a lawsuit guarantees that the most horribly injured victims will never be able to pay their bills. So, to protect the insurance companies, you, the American taxpayer, wind up paying the expenses of those people (through such government programs as Medicare and Medicaid). Something must change.

Damages cap now on tap

Virginia Lawyers Weekly

By Paul Fletcher March 30, 2009

The 2009 General Assembly session is more or less over.

Only the April 8 veto session, in which the legislature considers bills vetoed or amended by the governor, remains.

The anticipated battle over an increase in the medical malpractice damages cap didn’t materialize in 2009, as legislators told groups representing trial lawyers, insurers, doctors and hospitals that they needed to devote their time and energy this year to the state’s budget and other money concerns.

Get ready to rumble.

Key leaders in the Assembly have told the interested parties that they have the opportunity to strike a deal, perhaps not unlike the agreement in 1999 that allowed the amount of the cap to increase gradually over a number of years.

But the message is clear: The Assembly expects an agreement.

Del. David B. Albo, R-Fairfax and chair of the House Courts of Justice committee, appeared at the Virginia Trial Lawyers Association meeting in mid-March. He said that it’s clear that “we can’t have a cap that stays the same.”

He said the trial lawyers, medical and insurance groups had been told to “meet this summer and solve this or we’ll solve it for you” next winter.

And Albo acknowledged that the problem is complex. “It’s like a Rubik’s cube,” he said.

As factors to be considered, Albo noted that hospitals require insurance limits that come in certain dollar-amount blocks, doctors can’t necessarily just increase costs and Medicaid/Medicare reimbursements can be skimpy.

Albo has noted before that an agreement must take all these factors into account to be taken seriously on Capitol Hill.

Meetings planned

VTLA Executive Director Jack L. Harris said, “We hear [the message] loud and clear.”

W. Scott Johnson, counsel for the Medical Society of Virginia, said that the interested parties already are trying to schedule discussions and set up a process for negotiating an agreement.

The first meeting likely will be in late May, and Johnson added that he hopes something can be accomplished by September, before the election season shifts into high gear.

Harris said the various parties had worked together before on different proposals to produce a result acceptable to all. “None of us goes into it with a preconceived outcome,” he said, noting that he expects the “talks will be wide-ranging.”

But he added, “I’m confident that we’re serious and they’re serious to do what it takes” to reach some agreement on the cap and related issues.

Health law update

The various arguments for and against a cap may be previewed in early May.

The Virginia Bar Association, in conjunction with the Health Law Section of the Virginia State Bar, will hold the 11th Annual Virginia Health Law Legislative Update in Richmond May 7.

Malcolm “Mic” McConnell of Allen, Allen, Allen & Allen, representing the plaintiff’s side, and Johnson, advocate for the defense, will debate “the prospects for medical malpractice reform” in 2010.

Johnson said he expects that their joint appearance will “lay out the possibilities and considerations” of an increase in the med-mal damages cap.

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