Virginia boasts relatively moderate medical professional liability insurance rates. In fact, largely due to its conservative approach to modifying its liability laws, the commonwealth’s medical malpractice insurance climate has remained relatively static and somewhat predictable since 1976.
Galvanized by the nationwide medical liability crisis of the mid-1970s, the legislature enacted the Medical Malpractice Act of 1976 in order to improve the availability and affordability in Virginia. The Act accomplished two major modifications to the commonwealth’s medical malpractice law: an aggregate damage cap and a mechanism for pre-screening proposed lawsuits by a medical review panel.
At the heart of Virginia’s success controlling medical malpractice insurance rates is the damage cap. The commonwealth is one of only six states with an aggregate cap on damages. An aggregate cap is different from a noneconomic damage cap in that it applies to all damages (pain and suffering, medical bills, loss of income and punitive). The cap also applies to all defendants collectively, not per defendant.
The Medical Malpractice Act of 1976 initially placed an aggregate cap of $750,000 on all medical malpractice claims. As the legislation achieved its intent to improve availability and affordability, the cap was increased in 1983 by legislative action to $1 million. It was increased to $1.5 million in 1999; then incrementally increased to $2 million over the following nine years.
In 2010, following two years of negotiation between the Virginia Trial Lawyers Association and the Medical Society of Virginia, the General Assembly approved an agreement that will maintain the aggregate cap for the next 20 years. The agreement allows for a 2-percent increase every year ($50,000 annually) beginning in 2012, and the trial lawyers promise there will be no legislative efforts to eliminate the cap or amend it to only apply to noneconomic damages. The agreement is expected to strengthen the long-term predictability and stability of the commonwealth’s insurance premiums.
Virginia’s Supreme Court has twice ruled that the aggregate cap on damages does not violate the U.S. or the commonwealth’s constitution.
The Medical Malpractice Act also instituted a system of medical malpractice review panels that are responsible for assessing the validity of medical malpractice claims. At the request of either party, the case can be directed to a panel that consists of two doctors, two lawyers and a judge who will review the claim and determine if it has merit. The panel is charged with determining whether the evidence supports the conclusion that the physician failed to comply with the standard of care and whether that failure caused the injury. The findings of the panel are non-binding, but any opinion of the medical review panel is admissible as evidence in a subsequent action.
Finally, in 1986, Virginia established its Birth-Related Neurological Injury Fund, which compensates infants who suffer permanent, disabling damage to the brain or spine caused by oxygen deprivation or injury during labor, delivery or resuscitation. The birth injury program was intended to remove delivery-room lawsuits from the court system and provide for an alternative way of compensating the plaintiff because these cases have a higher rate of success and tend to result in large monetary awards. The program restructured the way injured infants are compensated for their injuries by eliminating the lump sum awards common in malpractice awards; instead, providing payment on a reimbursement basis.
Virginia has been proactive when dealing with periodic medical liability crises. As a result, premiums have been relatively moderate and predictable. The commonwealth also has many options when searching for a med-mal company. As such, it is critical that a physician work with a broker that can shop their policy amongst all of the insurers to make certain he or she gets the best possible deal.
This write-up of Virginia was put together by Michael Matray, the Editor of the Medical Liability Monitor