Last-minute tweak to bill could double Virginia’s medical malpractice payment caps for plaintiffs

What started as a “small little bill” by Sen. Mark Obenshain, R-Rockingham, to cap prejudgement interest in medical malpractice lawsuits on Wednesday evolved into a proposed doubling of payment caps for plaintiffs of successful lawsuits.

Virginia’s House of Delegates went into recess the afternoon of March 4 to hold a special meeting of its Courts of Justice Committee. There, a substitute rewrite of Senate Bill 536 was deliberated and then advanced by a vote of 18 to 4. 

Current Virginia law already outlines caps for payments to plaintiffs in successful medical malpractice lawsuits, citing a maximum payment amount of $3 million, with a yearly incremental increase until 2031. 

The new version of Obenshain’s bill would change the law to allow for a $6 million cap beginning next year. The bill also extends the statute of limitations for when a plaintiff can bring a case against a provider. 

Health systems pushed back against the measure, arguing that doubling the cap could strain hospitals with higher malpractice insurance premiums for their physicians. Rural hospitals also expressed concern, as they often operate in underserved areas and work within tight fiscal margins. 

Rufus Phillips, CEO of the Virginia Association of Free and Charitable Clinics, also opposed the bill. Phillips also expressed concern that the proposed change could affect Virginia’s Division of Risk Management, which also provides coverage for the network of volunteers free clinics rely on. 

“That is the life blood of the free clinic model throughout the state, and it is fair to say that clinics would cease to exist,” he said. 

Advocating for the patient experience, Charlottesville-based attorney Les Bowers spoke in support of the bill. 

He said that he’s taken on medical malpractice cases in the “reddest and bluest” parts of Virginia and North Carolina. A common thread, he relayed, is that people think a cap is a good idea until they personally experience one. 

He added that some clients “are injured so badly the cap does not provide redress” and described the “tragedy” of representing clients after botched medical care. 

Del. Jason Ballard, R-Giles, who voted to advance the bill, first noted his “struggle” to figure out what to do. 

“On one hand, I have concern for small rural hospitals that may struggle, but the other side of the equation is protecting the patient from medical negligence,” he said minutes before the bill reported out of the committee. 

Ballard was among a few Republicans to join his Democratic colleagues in advancing the bill, while Del. Rip Sullivan, D-Fairfax, voted against it. 

“In two short weeks to go from a bill that had to do with prejudgement interest to a bill that does raise the cap and include a complete change on the statute of limitations … to me is just too much whiplash,” he said, and suggested the bill could have more time for development next year. 

Obenshain responded that he was surprised to have drastically altered his bill so fast, but said he believes it can “provide some certainty for the long run.”

“When I brought this bill, it was a simple little bill,” he said. “But I’ve also learned to go with the flow. If there’s progress in trying to work something out, I want to take advantage of that momentum.” 

Having now been amended and reported out from the Courts of Justice Committee, the bill will continue to advance through or fail in the House of Delegates. Now that the midpoint of the session has passed, each bill that has cleared their chamber of origin must now clear the opposite one for a chance to get to the governor’s desk. 

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