Virginia high court upholds medical malpractice cap.

The most you can get for suing your doctor in Virginia will remain $1 million, the state's highest court has ruled. The Virginia Supreme Court in January unanimously upheld the constitutionality of the state's 23-year-old cap on medical malpractice awards. (Pulliam v. Coastal Emergency Services, 509 S.E.2d 307 (Va. 1999).)

The case arose from the death of Elnora Pulliam, who was examined in the emergency room of Southside Regional Medical Center. Physician Thomas DiGiovanna allegedly failed to order tests that might have diagnosed pneumonia and a severe but treatable streptococcus infection. Instead, Pulliam was sent home with a muscle relaxer and died later that day.

Pulliam's husband, on behalf of her estate, sued the doctor and his employer, alleging negligence. A jury awarded about $2 million, which the judge cut to $1 million under the medical malpractice cap.

On appeal, the state high court affirmed the ruling. The court relied in large part on an earlier case in which it had upheld the cap. That decision was based on the state general assembly's determination that the ceiling on damages was necessary because medical malpractice claims were making liability insurance unaffordable or unavailable, with the result that health care providers were increasingly unwilling to practice in Virginia. (Etheridge v. Medical Center Hospitals, 376 S.E.2d 525 (Va. 1989).)

Chief Justice Harry Carrico, writing for the court in Pulliam's case, relied on stare decisis. He stated that Etheridge "has been cited in 16 subsequent opinions of this court without any indication from the bench, the bar, or the public that flagrant error or mistake exists in the decision."

In its amicus curiae brief in support of Pulliam, ATLA argued that even if the damage cap resulted in lower payouts by malpractice insurance companies, the legislation contained no provision requiring insurers to use those savings to make coverage more available or affordable. The brief also argued that because the state insurance commissioner had advised lawmakers that a damage cap was not likely to reduce premiums for doctors, the legislature had no rational basis for believing that the law would accomplish this goal.

The court, however, declined to consider that argument because it had not been properly raised earlier in the litigation.

Pulliam's lawyer, Charles Cuthbert Jr. of Petersburg, Virginia, said the court's decision endorsed a law that removed a major incentive for health care providers to guard against negligence and malpractice. "The decision means, unfortunately, that those who are injured most severely by medical negligence will continue to be arbitrarily prevented from receiving fair compensation," Cuthbert said.