State Courts Side with Victims, Overturn Medical Malpractice “Caps”

by James Lewis

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JIm is a Virginia injury attorney who handles car accidents, medical malpractice, FELA, wrongful death, etc.

The Georgia Supreme Court and Illinois Supreme Court have ruled in favor of victim rights by striking down limits on medical malpractice "caps," according to the New York Times. These caps are arbitrary limitations on the amount of compensation a victim can receive in a medical malpractice lawsuit.

I strongly support the decision made by the courts. Caps, instituted by state legislators (many of whom who were influenced by health insurance lobbyists) were designed as a method of controlling health care costs. It turns out this strategy was completely off-base and has been a miserable failure in most parts of the country. For example, Texas enacted medical malpractice caps in 2004 and within six months, the largest medical malpractice insurer in the state increased their premiums by 19 percent. The insurance company said, "Non-economic damages are a small percentage of total losses paid. Capping non-economic damages will show loss savings of 1.0 percent." This means caps would account for no more than a 1 percent savings in costs; a drop in the bucket compared to a 19 percent premium increase.

Even with this evidence, there was a lot of talk in the recent health care reform debate about a need for drastic tort reform and members of Congress even submitted proposals to set a national cap on malpractice awards. Fortunately, these proposals never garnered any serious consideration since they were vastly overreaching and based on scoring political points, not advancing a serious substantive discussion on tort law. Looking for ways to save money in our health care system is important, but restricting the awards for victims who've had their lives changed forever by medical negligence is not a good strategy.

Proponents of restricting victim's rights fail to recognize that arbitrary medical malpractice caps weaken the foundation of our Republic - the right to have your case decided by a jury of your peers. I echo the sentiments of Georgia Chief Justice Carol W. Hunstein who wrote, "The very existence of the caps, in any amount, is violative of the right to a trial by jury."

Here's a video discussing the unjust medical malpractice caps in Georgia...


Unfortunately, Virginia still features caps in medical malpractice lawsuits. The law, Va. Code Ann. §8.01-581.15, limits the amount that any victim can recover from an at-fault healthcare provider, regardless how much appropriately is awarded by a jury or judge at trial. Virginia's cap has been fixed at $2 million since July 1, 2008. So even if someone suffers a serious injury that is estimated to require $5 million worth of care, $2 million is the maximum amount that can be awarded.

If more states start to mirror the decisions made in Georgia and Illinois, we could see changes made in the Commonwealth. For all of the families who lost a loved one due to a surgical mistake and the victims who've had their lives altered forever because of medical negligence, I hope these changes happen sooner rather than later.

About the Editors: Shapiro, Lewis & Appleton is a Virginia injury law firm whose attorneys focus on personal injury and accident law and have extensive experience handling medical malpractice and doctor mistake cases. Please take a few moments to review our medical malpractice case results. We have offices in Virginia Beach and Hampton, VA, but we're ready to come to you anywhere in Virginia, including Norfolk, Portsmouth, Chesapeake, Newport News and Suffolk, VA, if you've been seriously hurt by the carelessness of a doctor, surgeon, nurse or pharmacist.

Rick Shapiro and James Lewis have been recognized as among the Best Lawyers in America since 2008. Also, Rick and Jim have been named Virginia Super Lawyers for Personal Injury Law since 2010. Fewer than 5 percent of lawyers are chosen for this professional honor.

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