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The state of Virginia boasts one of the United States’ more stable medical liability
insurance markets, due, in most part, to legislation first passed more than 30 years
ago.
In the mid-1970s, Virginia faced a medical malpractice crisis that led to the Virginia
General Assembly passing its Medical Malpractice Act of 1976, which capped all damages
(pain and suffering; medical bills; wages; interest; and punitive damages) at $750,000.
This cap further applied to all defendants collectively, not per defendent. The
legislation was effective in preserving the availability of medical malpractice
insurance at an affordable price to healthcare providers, with the desired result
of ensuring a stable healthcare environment for the citizens of Virginia.
In 1983, the malpractice cap was increased to $1 million, and the last significant
test of the cap occurred in 1999, when the Virginia Trial Lawyers Association did
its best to attack the medical malpractice cap. At that time, the Virginia General
Assembly passed legislation to increase the cap from $1 million to $1.5 million
and would thereafter receive annual increases to the cap through July 1, 2008, when
the cap matured to $2 million.
Virginia is one of only seven states to have such an aggregate cap on damages, and
this aggregate cap has been upheld in the state’s court system.
In addition to the physician-friendly cap on medical malpractice damages, Virginia
has enacted reforms that contribute to its stable liability market, including a
cap of $350,000 on punitive damages; a two-year general statute of limitations;
as well as strict top-rated testimony and certificate of merit requirements.
Virginia law also allows for either party to request that a medical malpractice
review panel—made up of two attorneys, two healthcare providers and one circuit
court judge—to issue a written opinion stating whether or not the defendant met
the standard of care and, if not, whether it was the cause of damages. The panel’s
opinion may be admissible as evidence, but is not considered conclusive.
While the state of Virginia does not have a general patient compensation fund that
covers all medical malpractice claims, in 1987, it did legislate the Birth-Related
Neurological Injury Fund (BIF), which provides for lifetime medical expenses plus
50 percent of the Virginia average weekly wage after the age of 18 for infants who
suffer permanent, disabling damage to the brain or spine caused by oxygen deprivation
or injury during labor, delivery or resuscitation. This no-fault program is the
exclusive remedy for such infants and their parents against participating physicians
and hospitals, who must pay an annual assessment.
Virginia’s forward-thinking reforms have resulted in a healthcare liability climate
that discourages frivolous lawsuits and maintains reasonable medical liability insurance
rates. The Virginia Board of Medicine
has reported since 1999, the year annual increases to the cap began, 96 percent
of paid malpractice claims have been less than $1.1 million, and less than 2 percent
of paid claims have exceeded $1.5 million.
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