Editorial: Malpractice victims out of luck in Virginia

Sunday, June 8, 2008

An arbitrary cap on damages means some patients won’t even be able to recover their actual losses.

Virginia’s cap on malpractice damages is unconscionable and unfair, and it will become ever more so when it tops out at $2 million on July 1.

That $2 million is for all damages — medical expenses and lost income as well as pain and suffering, and other non-economic damages.

With rising medical expenses, that cap will impact more victims of malpractice.

For instance, a $3.5 million verdict awarded to a Clifton Forge woman by a Roanoke jury will likely be halved by the limit — which was set at $1.6 million when the foot surgery she sued over occurred.

Donita Franklin’s lawyer said her medical bills and lost wages total $2.25 million.

The doctor in Franklin’s case insists she did nothing wrong, but a jury found differently.

The details of this case aside, there is no doubt that malpractice occurs, and that, increasingly, the victims of malpractice may face actual expenses and lost income that will easily exceed this arbitrary cap on damages.

Consider cases where infants are victims of life-altering mistakes. Lost wages are difficult to prove, but lifelong medical expenses in many of these cases will easily exceed $2 million.

Why should the doctor responsible — or that doctor’s insurance company — not have to pay the full costs associated with such an error?

Compounding the unfairness is this: The cap didn’t have its intended effect. The cap on damages was supposed to keep malpractice premiums under control.

But though the cap was put in place in 1999, doctors were still protesting skyrocketing premiums in 2004.

Numerous studies have shown that damage caps have little or no impact on malpractice insurance premiums.

In fact, premiums tend to reflect the performance of insurance company investments more than trial verdicts.

The state Supreme Court has upheld the constitutionality of the cap more than once.

Perhaps this case and others like it will help illustrate the fundamental unfairness of an arbitrary cap so low that it at times cannot even cover actual expenses of the victims of malpractice.

If the Supreme Court won’t reverse this decision, the General Assembly should re-examine the issue and develop a fairer, more adequate approach to malpractice reform.

Source: http://www.roanoke.com