Virginia was one of the first states to adopt tort reform, specifically in the form of damage caps. In 1976 the Virginia General Assembly passed the Medical Malpractice Act of 1976 which limited caps on damages to $750,000 per claim. Virginia’s damage limits are fairly unusual in that they apply to both economic (loss of income, medical expenses, etc.) and noneconomic (i.e. pain and suffering, loss of enjoyment of life, etc.) damages combined. In most states that cap damages the limits only apply to noneconomic damages.
Virginia’s assembly raised the cap periodically until, in 1999, and then again in 2012, legislation was passed that would set the cap at a particular amount and provide for it to be raised by $50,000 per year. The 2012 legislation set the cap at $2,050,000 as of July 1, 2012 and authorized it to go up on July 1 of every subsequent year through 2031 by $50,000. By 2031 the cap will have reached $3M.
In addition to a single cap for economic and noneconomic damages, the 1976 law also provided for a $350,000 limit on punitive damages as well as access to a medical review panel should either party request one. Medical review panels in Virginia are appointed by the Supreme Court and are made up of two health care providers, two attorneys, and a judge who is a non-voting administrator. Their judgments are non-binding but may be introduced as evidence.
Finally, while Virginia does not have a general patient compensation fund the Birth-Related Neurological Injury Compensation Act did create a fund specifically for children who suffer permanent disabling injury during birth due to oxygen deprivation or mechanical injury. However, participation in the fund is elective and many of those doctors and hospitals that are eligible choose not to participate.
Virginia law requires that any action be brought within two years of the time the alleged injury occurred. Unlike many states the Virginia Supreme Court has not recognized a general discovery rule allowing for an extension of the statute based upon when an alleged injury was discovered. The closest they have come is that in cases where there is ongoing treatment for the same condition the statute may begin from the date of the last treatment as opposed to the date when the initial alleged injury occurred. There are a few exceptions to the two year rule.
In most states it is fairly common for doctors to carry malpractice policies with limits of $1M per action and $3M aggregate per policy period (1 year). However, because the Virginia damage cap covers both economic and noneconomic damages physicians there typically buy policies with higher caps because in doing so they are able to cover 100% of their risk exposure. Having objective, known limits to total risk exposure is a significant advantage for Virginia physicians.
Virginia was one of the first states to adopt tort reform, and has continued to take a proactive approach to protect doctors and maintain a healthy risk environment. Virginia’s damage caps have been challenged a number of times and the courts have consistently ruled that they are not at odds with either the Virginia or U.S. Constitutions. Likewise the statute of limitations and the decision not to recognize a broad discovery rule have both been established and confirmed in the courts.
These legal measures along with healthy competition in the market and a known maximum risk/cost per incident have combined to make Virginia a very safe place to practice medicine. Premium prices are very reasonable and the market should remain stable for the foreseeable future.
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