Joseph Cammarata is a civil trial attorney and partner with the personal injury firm of Chaikin, Sherman, Cammarata & Siegel.

Nancy, my friend and neighbor of more than 15 years, underwent routine back surgery in Virginia. But the intelligent and spirited mother of two who served as a U.S. nuclear intelligence expert never returned. Nancy’s surgeon severed an artery in her stomach, depriving her brain of oxygen for 23 minutes. She was brought back to life with severe and permanent cognitive, emotional and behavioral disabilities that require 24-hour care.

I had the privilege to represent Nancy and her husband (Nancy’s guardian) in the trial against the negligent surgeon. Nancy’s medical and other expenses totaled $9.3 million. And there’s no monetary figure for her enormous personal losses. For her catastrophic injury, the jury allowed Nancy the sum of $35.6 million. Unfortunately, she was only entitled to receive a fraction of that jury verdict — far less than even her medical bills.

A 1976 Virginia law puts a “cap” on the total jury verdict in every medical malpractice case, no matter how substantial the medical bills and other damages. The cap in Nancy’s case was $2.2 million. Because the cap is much less than Nancy’s medical bills, she must rely on taxpayer-funded public health insurance for her ongoing medical treatment. And Nancy effectively was allowed zero compensation for the destruction of her quality of life. This is unfair and unjust.

Nancy’s heartbreaking situation compelled me to spearhead efforts to cancel the cap through legislation (SB 1107) introduced by state Sen. William M. Stanley Jr. (R-Franklin). The bill has bipartisan support because this is not a political issue. It’s a human issue, and it is the right thing to do. (Only one state, Nebraska, has a cap as restrictive as Virginia’s, limiting all kinds of damages in medical malpractice cases.)

Virginia’s medical malpractice damages cap violates equality before the law. Everyone is entitled to full compensation for wrongs done to them. Yet, if you suffer severe injuries because of medical malpractice, you will get the short end of the stick. You will be treated worse than people injured by nonmedical negligence (for example, car crashes).

Furthermore, the cap disproportionately harms Virginians of lower socioeconomic status with fewer financial resources to pay for medical care. When the cap denies victims full compensation for their medical treatment, public health insurance foots the bill.

The cap further undermines equality because it creates a special privilege for negligent health-care providers as a class (backed by malpractice insurers), shielding them from full accountability. When medical malpractice causes severe injuries, victims like Nancy should be made whole.

Without the cap, should we expect an epidemic of excessive malpractice claims? No. According to the National Practitioner Databank, 91.8 percent of payments made by Virginia’s medical malpractice insurers since 1990 have been for less than $1 million.

Will canceling the cap drive up insurance premiums for doctors or health-care costs for consumers? No. Economists have found little connection between caps nationwide and the cost of malpractice premiums. And premiums are just a tiny portion of health-care industry costs.

Will canceling the cap put insurers out of business? On the contrary, malpractice insurers are making money hand over fist. A National Association of Insurance Commissioners report found that Virginia medical malpractice insurers collected twice as much money in premiums as they paid out in claims from 2005 to 2019.

What about the mythical plague of excessive jury verdicts? In the United States, we trust juries — our fellow citizens — to decide issues of liberty, property and even life. We should not abandon our commitment to the jury system in one type of case to benefit malpractice insurers. In any event, Virginia trial judges already have the power to reduce jury verdicts on a case-by-case basis when merited.

The cap actually harms our justice system by clogging the courts. In instances in which a malpractice victim’s damages exceeds the cap, it is in the insurer’s interests not to settle but instead force the victim to go to trial (as happened to Nancy). Why? Because, regardless of the verdict, the insurer will not have to pay any more than the cap. More malpractice trials mean victims must expend resources on litigation expenses that could have been used for medical care instead.

Repealing the cap will not help Nancy. But it would do tremendous good for the public. It will put people before profits. It will ease the burden on public health insurance. And never again will a medical malpractice victim in Virginia have to bear the same injustice as Nancy.

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