BY JAMES C. LEWIS, HSCLA ATTORNEY
During the last five years, we have seen a dramatic surge in the passage of legislation that is intended to deprive victims of medical mistakes by the health care community from receiving full and fair consideration. These efforts have included capping victims’ rights to non-economic damages which flow from catastrophic injuries to limiting attorney’s fees in cases involving claims of carelessness against health care providers. Many states have enacted $350,000.00 caps on a victim’s entitlement to compensatory damages and Florida enacted legislation severely limiting the right of attorneys who represent victims of medical mistakes to be fairly paid for their services.
This tide of attacks on victims’ rights may be turning in the opposite direction.
In Florida, attorneys affected by the recent legislation limiting their fees developed a method to circumvent this legislation by having prospective clients sign a waiver of their rights and entitlements under the legislation which would otherwise limit their attorney’s fees. By doing this, victims were able to continue hiring the best medical negligence lawyers in Florida who, as a result of this waiver, were no longer discouraged from handling cases like this. This practice of using a waiver was attacked by the Florida Medical Association and in late January, 2006, the Florida Supreme Court denied the request of the Florida Medical Association and ruled that the use of these types of waivers was perfectly appropriate.
In another development, voters in the State of Washington rejected a measure that would have severely curtailed a patient’s ability to obtain compensation for injuries caused by medical mistakes. The proposal would have established a $350,000.00 cap on non-economic damages in medical negligence cases. It would also have allowed medical providers to require patients to waive their right to a jury trial and submit any disputes to arbitration. This initiative was soundly defeated for the second year in a row.
Likewise, in 2004, Oregon voters defeated a ballot measure that would have amended the state constitution to limit non-economic damages in medical malpractice cases to $500,000.00. Similarly, Wyoming voters rejected a measure that would have allowed the state’s legislature to cap non-economic damages in medical malpractice cases.
If these states’ recent actions are any guide, it does appear that the momentum of those medical groups in this country who are seeking to limit the rights of victims in medical negligence cases is dwindling. It is certainly our hope that this trend continues.
Rick Shapiro has practiced personal injury law for over 30 years in Virginia, North Carolina, and throughout the Southeastern United States. He is a Board-Certified Civil Trial Advocate by the National Board of Trial Advocacy (ABA Accredited) and has litigated injury cases throughout the eastern United States, including wrongful death, trucking, faulty products, railroad, and medical negligence claims. During his three-decade career, Shapiro has won client appeals before the VA Supreme Court, VA Court of Appeals, NC Supreme Court, SC Supreme Court, WV Supreme Court, TN Supreme Court, and three times before the United States Court of Appeals for the Fourth Circuit, underscoring Shapiro’s trial achievements. In addition, he and his law firm have won settlements/verdicts in excess of $100 million. His success in and out of the courtroom is a big reason why he was named 2019 “Lawyer of the Year” in railroad law in U.S. News & World Report's Best Lawyers publication (Norfolk, VA area), and he has been named a “Best Lawyer” and “Super Lawyer” by those peer-reviewed organizations for multiple years. Rick was also named a “Leader in the Law, Class of 2022” by Virginia Lawyers Weekly (total of 33 statewide honorees consisting of lawyers and judges across Virginia). And in September 2023, Rick was selected as a recipient of the National Board of Trial Advocacy (NBTA) 2023 President’s Award. Although many nominations were submitted from across the country, Rick was just one of eight attorneys chosen by the prestigious National Board which certifies civil trial attorneys across the U.S. Rick was also recently named to Virginia Lawyers Weekly 2024 Virginia’s Go To Lawyers Medical Malpractice. The attorneys awarded this honor are nominated by their colleagues and chosen by a panel from the publication.
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