Tort reform: Virginia ranks lowest out of neighboring states

There is a lot of lobbying and intrigue surrounding tort law. Every year, the insurance industry spends significant time and money persuading politicians in the Virginia General Assembly to take up tort reform.

The insurance industry spends even more time and money attempting to convince American citizens that the civil justice system is ripe with fraud, abuse, and frivolous lawsuits which result in windfalls for undeserving plaintiffs.

scales of justice

What is tort law?

This is the area of the law that covers most lawsuits between two or more parties. In general, any claim that arises in civil court falls under tort law. Contractual disputes do not fall under tort law, however.

The concept of tort law is to correct a wrong that has been done to a person, and to provide relief from the wrongful acts of others. This is usually done by awarding monetary damages as compensation.

Who wants to reform the civil justice system?

The American Tort Reform Association (also known as ATRA) is one such insurance-sponsored entity that is quite active in Virginia. They claim to be the “first national organization exclusively dedicated to reforming the civil justice system […] working to bring fairness, predictability and efficiency to America’s civil justice system.” The ATRA website is quite professional-looking and upon first glance, the uninformed may come away with the sense that Virginia’s civil justice system is broken and in dire need of repair.

Many elder statesmen feel that any entity declaring that Virginia is in need tort reform is un-American. They argue that reforming tort law is counter to the wisdom of the “common man,” and a cause for politicians to turn their backs on the Constitution, the Bill of Rights and the intent of our nation’s founders. Moreover, these same big businesses that spend lavishly on tort reform lobbying efforts tend to be hypocritical, utilizing lawsuits for self-serving purposes.

The U.S. lobby

How tort reform benefits corporations, and hurts plaintiffs

To provide a true sense of the unfairness that injured people experience as a result of tort reform, this article will compare and contrast Virginia’s civil justice system with two of our neighbors. Firstly, we will look at statutory damages caps in Virginia, Maryland and North Carolina.

But first, what is a statutory damage cap?

A statutory damage cap is a legal limit on the amount of compensation a person can receive for certain types of damages in personal injury or medical malpractice lawsuits. Damage caps vary by state, with some states imposing strict caps, others having higher caps, and some having no caps at all.

Virginia’s damages cap

In medical malpractice cases, Virginia’s damages cap is particularly cruel to those injured as a result of medical negligence. No matter the actual harm to plaintiff, whether paralyzed, permanently disfigured or disabled from ever working again, the most a Virginian victimized by medical malpractice can recover is $2.6 million dollars.

The Washington Post published an article about a particularly horrifying case involving Nancy, the victim of medical malpractice, to make this point. Nancy underwent routine surgery, yet because of medical negligence, she sustained severe and permanent brain damage. This caused cognitive and behavioral disabilities that require a lifetime of around-the-clock medical care. Even though Nancy’s medical bills totaled $9.3 million dollars and a jury awarded a total verdict of $35.6 million (which included past and future medical expenses, loss of past and future earnings and pain and suffering) the Virginia trial court was required to reduce the verdict to $2.2 million dollars. This  was the Virginia cap at the time of the trial. Because of the cap in Virgina, Nancy’s caretakers will not be able to pay her medical bills and for the cost of her future medical care. Ultimately, taxpayers will have to pick up Nancy’s bills through Medicaid and Medicare.

tort reform benefiting corporations

North Carolina’s damages cap

North Carolina tort reform also results in unfairness to medical malpractice victims, but not as fundamentally as in Virginia. North Carolina passed tort reform in 2001 that caps pain and suffering in medical malpractice cases at $500,000. However, North Carolina does not cap economic loss claims.

Maryland’s damages cap

Maryland’s damages cap is the least restrictive for ordinary negligence cases. Pain and suffering damages were capped at $935,000 in 2023 (though the cap is lower if the injury occurred prior to that).

However, Maryland’s non-economic damages cap is $875,000 for medical malpractice cases. Maryland does not cap its damages for economic loss claims. If Nancy (our Virginia victim) was a resident of North Carolina or Maryland, her lost wages and medical bills, including her future medical needs, would have been provided for and taxpayers wouldn’t have to foot her bills.

What about punitive damages for negligent doctors?

Punitive damages are meant to punish the defendant’s conduct and to deter future similar conduct.

  • North Carolina caps punitive damages claims at three times the compensatory damages claim, or $250,000 – whichever is greater.
  • Virginia caps the punitive damages claim at $350,000, no matter how egregious defendant’s conduct.
  • Maryland has no cap on punitive damages, though such a claim requires a showing of ‘actual malice’ which is akin to intentional conduct or an ‘evil motive.’

bullet hole through window

Tort reform case study: A shooting in Virginia

In considering the unfairness of Virginia’s punitive damage cap, I am reminded of a case where a woman inquired about punitive damages for injuries that she sustained in a shooting. She wanted to bring a very large punitive damages claim against her assailant.

In that inquiry, the victim was standing in her kitchen holding a can of seltzer water. Suddenly and without warning, the can exploded in her hand and she was knocked onto her kitchen floor. She had been hit in the chest by a pistol round that her neighbor fired from his house.

Thankfully she had advanced medical training (as an operating room nurse), and she was able to control her bleeding. She was also lucky enough to have had her cellphone in her pocket so she was able to call EMS personnel, who responded quickly. She was mercy-flighted to a level one trauma center and had several surgeries. She lived, though the bullet will stay in her body forever.

She later learned from the detectives who arrested her neighbor that he had been drinking alcohol all day long. He drank so much alcohol that he couldn’t remember what or how much he drank. He vaguely described picking up a pistol and pulling the trigger while pointing it in the direction of her house. He had no explanation as to why he never checked to see if he had shot his neighbor, even though the obvious path of the bullet went straight into his neighbor’s house.

Despite the shooter’s conduct being so extreme as to shock the conscience, Virginia law limits the shooting victim’s punitive damages claim to $350,000.

The reality of the state of tort law in Virginia is that juries have always made important decisions to making injured victims whole. The General Assembly should repeal the caps on damages and trust juries to do their jobs.

I have been injured in an accident – what should I do?

If you or a loved one have been injured through no fault of your own, whether a potential medical malpractice case, auto injury, or another event, the experienced personal injury attorneys at Allen & Allen can help navigate you through the legal process. For a free case evaluation, call us today ay 866-308-1307.