This story was reported and written by VPM News.
Virginia lawmakers reshaped — and then advanced — a bill that significantly alters the legal landscape for medical malpractice claims, including more than doubling how much someone can be awarded in damages to $6 million starting next year.
State law caps payments of court damages in malpractice lawsuits, which incrementally went up from $1.5 million in 1999 to $2.95 million in the fiscal year that ends June 30, 2031. After that point, state law says the cap should not go over $3 million.
But on Wednesday, the House Courts of Justice Committee pressed forward a late rewrite to Senate Bill 536 from state Sen. Mark Obenshain (R–Rockingham) that would increase the cap to $6 million by July 2027. In July 2029, and every two years after that, the cap would be set based on federal cost-of-living data.
The one-page bill filed in January quickly became eight pages long by March. The bill's process received bipartisan criticism as being rushed. Legislators questioned Obenshain why what he called a "simple little bill" had changed so much so quickly.
Obenshain's initial bill only proposed to not allow the interest accrued in malpractice cases before a final verdict to be included in the cap for damages — the amount of money plaintiffs can be awarded.
From the committee floor, Obenshain stated that, like others, the changes caused some "whiplash" for him too. While he said the changes were not what he intended, Obenshain backed the tweaks that were made.
"I've been around here long enough to understand that things take unanticipated turns, and the turns that this took were not anticipated by me, at least," he said during the committee's meeting. "I've also learned to go with the flow sometimes."
Another major change that the substitute bill proposes is extending Virginia's statute of limitations to a broader range of medical malpractice lawsuits.
State law currently only allows a narrower set of malpractice lawsuits after two years, including claims of "negligent failure" to diagnose a terminal illness and certain fraud claims.
Under the rewritten legislation, malpractice claims that are "not reasonably known or discoverable to the patient" can come forward after two years.
The bill also requires patients who are seeking malpractice-related damages to file a lawsuit within two years if a health care provider notifies them of potential medical malpractice or should have been aware "through reasonable diligence."
The amended legislation allows people with malpractice claims to collect up to two years of interest if the total damages in a court's final verdict and the prejudgment interest is higher than the state's cap.
Nursing homes would have professional liability insurance coverage of at least $3 million for each claim brought forward by a patient, instead of the damages cap set in current state law.
Rufus Phillips, CEO of the Virginia Association of Free and Charitable Clinics, also criticized the changes.
Phillips told the House committee Wednesday the organization is concerned that the changes would increase medical malpractice premiums and jeopardize free clinics' ability to pay for liability coverage. He also raised concerns about clinics losing their volunteer workforce as a result.
"That is the lifeblood of the free clinic model throughout the state, and it is fair to say that free clinics would cease to exist," Phillips said.
Del. Rip Sullivan (D–Fairfax), who opposed the measure before the changes, said the issue was too important to get wrong with swift policy shifts.
"In two short weeks, to go from a bill that had to do with pre-judgment interest to a bill that does indeed, of course, does raise the cap and now includes a complete change in our statute of limitations on every medical malpractice case, not just cap cases," Sullivan said. "To me, there's just too much whiplash here."
Del. Jason Ballard (R–Giles) voted in favor of the substitute bill, but said he struggled with the legislation, saying he's concerned for both small rural hospitals that could face large economic damages and people who experience alleged malpractice by health care providers.
Obenshain said malpractice cases rarely reach the cap, but the ones that do typically are complex and take years to resolve.
Eliot Buckner, a lobbyist for the Virginia Trial Lawyers Association, spoke in support of the bill — telling lawmakers it strikes the right balance by helping patients collect more in damages and offering stability for doctors and hospitals.
"It's time to change the cap, and this is a mechanism to do it, and it moved faster than any of us anticipated," Buckner said during Wednesday's House committee meeting. "But that doesn't mean that it's not a fair and reasonable bill before this body."
Another proponent of the changes was Les Bowers, an attorney with MichieHamlett in Charlottesville: "There are people in your jurisdictions who are injured so badly that the cap does not provide redress, and the people who end up paying for that are the people who pay taxes in this commonwealth."
Opponents of the bill argued that the revision would lead to an increase in malpractice claims and legal costs for health care providers, saying that would hinder health care access for patients.
The Virginia Hospital and Healthcare Association and the Virginia Chamber of Commerce were among the organizations that opposed the changes on Wednesday.
"Doubling the cap will likely have a chilling effect on the availability of care, particularly for high risk specialties," Chrissy Noonan, a lobbyist for the Virginia Chamber of Commerce, said Wednesday. "Virginia is already facing shortages in various medical fields."
The House Courts of Justice Committee approved the substitute bill in an 18–4 vote. It now heads to the full House of Delegates.
Read all three versions of Senate Bill 536
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