Weekly Edition

Med-mal cap fight on horizon for 2009

Familiar battle lines between plaintiffs’ lawyers and doctors will be forming soon over a possible increase in Virginia’s $2 million cap on damages in medical malpractice cases.

The arena has been quiet for nine years as the malpractice cap advanced in steps from $1.5 million. As part of the legislative deal that resulted in stairstep increases in the cap, both sides of the debate agreed to leave the issue alone for a decade. The malpractice cap has reached the $2 million final level approved in the 1999 legislation on July 1, so the field now is open for additional legislation.

“We’re looking closely at what we might do at this session to change the cap,” said Jack L. Harris, executive director of the Virginia Trial Lawyers Association. Harris explained, however, that the VTLA’s legislative agenda is not yet set, so he offered no details on any specific proposal to be advanced.

“I just can’t imagine that, given increases in the general cost of living and the medical care CPI [consumer price index], anyone could anticipate the cap staying at the same flat value that it’s at,” Harris said.

With five months to go before the 2009 General Assembly, both sides of the malpractice cap debate have begun making their cases. “Doctors and insurance companies have been calling me saying that they expect a move to increase the cap,” said Del. David B. Albo, R-Fairfax, chairman of the House Courts of Justice Committee.

The Medical Society of Virginia, representing state doctors, regards the cap as its “number one issue, head and shoulders above the others” according to its general counsel, D. Scott Johnson. “When we talk to doctors, they tell us medical malpractice premiums are kicking them pretty hard,” he said.

The MSV Web site offers brochures and fliers with talking points to help physicians and others lobby the legislature to keep the cap at $2 million. “Increasing the cap could cause malpractice premiums to increase and create another crisis during which insurers refuse to cover Virginia physicians,” warns one position paper.

The MSV literature explains that the trial lawyers might seek relief in one or more ways. Besides simply pushing for a larger dollar figure, the VTLA could lobby to make the cap apply to each defendant health care provider, opening the door for larger recoveries when more than one provider is sued. Another possible approach would be to carve out categories of damages that are not limited by the cap, such as medical expenses and lost wages.

While the VTLA has made no official statement on the cap yet, individual trial lawyers have weighed in with blog posts and a news release. Fairfax personal injury attorney Ben Glass released a statement last month critical of the cap.

“As medical costs continue to rise, more and more victims of malpractice will continue to be impacted by Virginia’s arbitrary limit,” Glass wrote.

Roanoke trial lawyer Dan Frith authored Web posts decrying the cap as unfair in cases of severely injured patients. “[G]uess who pays for those damages when the health care professional doesn’t have to? You – in the form of increased costs for Medicare, Medicaid, Social Security Disability, etc,” Frith argued.

Albo ventured no predictions about the prospects for cap-increase legislation in 2009, but he seemed willing to hear the arguments. “I don’t know what the big emergency is,” he said, but he said that he would consider an adjustment if proponents could show that inflation has made $2 million an inadequate limit.

If the debates of a decade ago are any indication, both sides can be expected to trot out studies and statistics relating to insurance premiums and the health of malpractice insurers. One independent study suggests that just having a cap on malpractice recoveries can boost the number of doctors. The 2005 study released in the journal Health Affairs indicated that state caps on noneconomic damage awards in malpractice lawsuits increased the supplies of physicians in those states.

© Copyright 2008, by Virginia Lawyers Media, all rights reserved