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| Shapiro, Appleton & Washburn

Virginia (VA) lawmakers, doctors, insurers and patient advocates hammered out a legislative proposal to modestly increase caps on medical malpractice awards in $50,000 increments from $2 million to $3 million by 2031. The scheduled growth was planned to make settlements and judgments in cases involving physicians’ and pharmacists’ mistakes, surgeons’ errors and nurses’ neglect more reflective of the harm patients suffer from malpractice and the lifetime of expenses they incur when receiving medical treatment to address earlier errors.

On March 30, 2011, Gov. Bob McDonnell threw the compromise into the trash and vetoed H.B. 1459. Huh? What?

He offered the following explanation for rejecting the will of the companies, health care providers and members of the public who would most benefit from enactment of the law to raise malpractice award limits:

Raising the cap for medical malpractice judgments … without further reforms in the medical malpractice litigation system, will not meaningfully protect against health care cost increases. Federal health reform law mandates, currently in litigation, will cost Virginia an estimated $2 billion over the next 10 years, and is creating great uncertainty in the health care system. Thus, adding to system costs at this time without other offsets should not occur.

I’ll give McDonnell the benefit of the doubt here and assume our "moderate" Republican governor has not gotten the news that several states’ courts have held malpractice caps to be unconstitutional. I’ll also assume he has not seen the evidence from study after study that money spent on malpractice awards, malpractice insurance and so-called "defensive medicine" contributes a negligible amount to America’s $3 trillion annual health care tab.

I have to assume ignorance. My other options are to conclude he cannot accept reality. I’d further need to accuse McDonnell of intentionally denying fair compensation to injured patients and the families of patients who died after receiving a misdiagnosis or drug overdose or developing a post-operative infection.

I also have to suspect something I would certainly never want to think: Perhaps McDonell’s long employment with a law firm whose lawyers receive substantial insurance company legal fees for representing hospitals and health care providers in even the most egregious cases of malpractice influenced his decision to veto an increase in medical malpractice caps that all stakeholders found acceptable. It couldn’t be possible that the relationship the governor’s law firm had with health care insurers clouded his rationality on the issue, could it?

But maybe thinking those thoughts is appropriate. After all, McDonnell is actively challenging federal reforms to the nation’s health care system already signed in to law and deemed constitutional by many courts.

My personal injury law colleagues and I work nearly every day with victims of medical malpractice. We see firsthand the difficulties patients and their loved ones face when struggling to get back on their feet, literally, and to recover financially. For many of our clients, no amount of money can make up the loss they have suffered.

We believe, as do some other state supreme courts, that any caps on medical malpractice awards are unconstitutional and violate the U.S. constitution’s Seventh Amendment, which gaurantees the right, based on common law, to trial by jury in civil cases. Common law imposed no caps on civil trial rulings by juries, allowing the people who heard the plaintiff’s evidence to decide what compensation was appropriate for injuries or deaths.

Here is what the Seventh Amendment states:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Nearly every state constitution contains a similar guarantee.

In Joseph Story’s 1883 treatise Commentaries on the Constitution of the United States, he wrote of the Seventh amendment that it "is a most important and valuable amendment; and places upon the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political and civil liberty." How can legislators substitute their cap for rights guaranteed by the U.S. and Virginia constitutions? Good question…

Despite the plain constitutional language and the precedents, the Virginia Supreme Court has twice ruled, in Pulliam v. Coastal Emergency Services, Inc. (257 Va. 1, 509 S.E.2d 307 [1999]) and Etheridge v. Medical Center Hospitals (237 Va. 87, 376 S.E.2d 525 [1989]), that the unfair cap does not violate the U.S. or Virginia constitutions.

Regardless, holding health care institutions and practitioners financially responsible for the injuries or loss of life they caused malpractice victims is essential for helping people heal. If the Virginia Supreme Court will not come to its senses and recognize that monetary caps on civil jury verdicts are a clear constitutional violation — yes, even a state supreme court can see the light and change course — ensuring a gradual and modest increase in the unconstitutional medical malpractice cap is the next best remedy for families harmed by medical mistakes and hospital errors.

To protect their constituents, members the Virginia legislature must either override McDonnell’s veto of H.B. 1449 or reintroduce and re-pass the bill during their 2012 session. Doing less would deny medical malpractice victims their rights to the imperfect justice available under the unfair and unconstitutional medical malpractice cap already in place in Virginia.


About the Editors: Shapiro, Cooper, Lewis & Appleton personal injury law firm (VA-NC law offices ) edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard, and Northeast North Carolina Injuryboard as pro bono services.


  1. Gravatar for Joe K.
    Joe K.

    The debate will continue where the line needs to be drawn between what is fair for patients as well as what protects access to healthcare as well as overall healthcare costs. A $350,000 cap seems to be in line with the average caps across teh country, but the inflation of the caps is what needs ot be questioned. I am not ware of any other states the currenlty have this type of escalation provision?

  2. Gravatar for Thomas Sharon, R.N., M.P.H.
    Thomas Sharon, R.N., M.P.H.

    How to Tell When You Have a Case Before You Hire Your Experts.

    With the hundreds of thousands of unexpected deaths and injuries arising out of hospital mistakes each year, there is no shortage of people who contact attorneys with a complaint of a treatment or hospital stay gone awry. However, as everyone knows, case screening is a costly process and unless one has a track record of settling most of the cases with more wins than losses at trial, the screening methodology needs some overhaul. Thus, we shall look at some of the lesser known ways of determining whether a potential client's complaint about hospital or nursing facility services has any merit. Hence, we need to know that in all hospitals and long term care institutions there is a twenty-four hour responsibility for everything, i.e. medication, nutrition, hydration, electrolyte balance, safety, civil rights, mental well-being, circulation, elimination, hygiene, mobility, infection prevention and the environment, to name a few. It all boils down to the nursing process because the nursing department is involved as the patients advocate in all aspects of care. Therefore, one must know what duties the nurses owe their clients. The key to understanding the nurses' obligations in any given scenario is in the nursing process. This entails assessment, action and follow-up. Read more at

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