Medical Malpractice “Reform” – Caps are Charity for Corporations

Virginia was one of the first states in America to enact special protection for negligent health care providers at the expense of their victims.  In 1976, the General Assembly enacted a $750,000 “cap” on recovery in medical malpractice cases (Virginia Code Section 8.01-581.15).  Since its beginning, the “cap” has been increased and currently stands at $2,000,000.00.  Recent legislation will increase the cap by $50,000 per year for the next twenty years.

The “cap” does not limit meritless malpractice cases.  It affects only legitimate, meritorious, proven cases.  Moreover, the “cap” does not affect victims whose injuries are relatively minor.  Rather, the “cap” affects only those who have been profoundly injured by health care providers who have been proven negligent.  In Virginia, medical malpractice “reform” has created a privileged class of citizens who are not held accountable for the harm they cause to others.  The victims of that harm and the taxpayers bear the cost that flows from the special privilege granted to health care providers..

The rationale behind Virginia’s decision to protect negligent doctors from accountability has always been that doctors were reluctant to practice medicine in Virginia for fear of being sued, or that they could not remain in practice in Virginia due to prohibitively high malpractice insurance costs.  There have been accusations that doctors were withdrawing from practice, moving to other states, or scaling back on their practices (for example, obstetricians refusing to deliver babies and practicing only gynecology).  All of these arguments presuppose a traditional model of private practice physicians who practice alone or in small practice groups owned by the physicians themselves.  But this model is outdated.  And while any unfair laws should be reconsidered, it is especially important to reconsider unfair laws which are based on circumstances which are no longer true.

A New York Times article from last year (March 25, 2010) reported that as recently as 2005, more than two-thirds of medical practices were physician owned.  But by 2008, that share had dropped below 50%, and the drop has continued.  On November 8, 2010, The Wall Street Journal reported that 55% of physician practices were hospital-owned in 2009.  More and more practitioners are practicing in the employ of fewer and fewer entities, creating health care monopolies.

And it’s big business. Hospital Corporation of America (HCA), which owns local Richmond area hospitals including Henrico Doctors Hospitals and Chippenham/Johnston-Willis Hospitals, reported 2010 Fourth Quarter revenues of $7.736 billion and net income attributable to HCA Holdings, Inc. of $283 million, an increase of 30.8% over the same quarter the previous year.  HCA, like other large corporate health care entities, owns many physician practices and is expanding that market share.

I recently represented a young child who lost an arm due to hospital negligence.  That child will live a long life with only one arm.  But the compensation available for that tragic loss was arbitrarily limited by an unfair law which was passed before that beautiful child was even born.  Why should billion dollar corporations be insulated from liability while innocents suffer?

The circumstances have changed.  The “answer” no longer makes sense, if it ever did.  Time for a change.  Time to restore balance.

About the Attorney: Mic McConnell is a Richmond medical malpractice lawyer. With over 20 years of experience, Mic has handled challenging cases all over the state of Virginia in almost every medical specialty for over twenty years.