No Cap, Your Damages Are Capped
No cap[1]; in Virginia medical malpractice actions, your recovery is capped, regardless of the amount of damages you actually sustained. The items of damage that are recoverable depend on the nature of the injury sustained. If the patient suffered injury short of death, their damages can include items such as pain and suffering, humiliation and embarrassment, inconvenience, medical expenses, lost wages, etc.[2] If the injury resulted in death, the decedent’s statutory beneficiaries can recover damages including sorrow, mental anguish, loss of companionship, lost support from income, expenses for the care and treatment for the deceased patient, funeral expenses, etc.[3]
Regardless of the cause of action or the elements of damage sought, Virginia imposes a “cap” on the total amount of damages that are recoverable in a medical malpractice action. The Code states:
In any verdict returned against a health care provider in an action for malpractice where the act or acts of malpractice occurred on or after August 1, 1999, which is tried by a jury or in any judgment entered against a health care provider in such an action which is tried without a jury, the total amount recoverable for any injury to, or death of, a patient shall not exceed the following, corresponding amount:
August 1, 1999, through June 30, 2000 $1.50 million
July 1, 2000, through June 30, 2001 $1.55 million
July 1, 2001, through June 30, 2002 $1.60 million
July 1, 2002, through June 30, 2003 $1.65 million
July 1, 2003, through June 30, 2004 $1.70 million
July 1, 2004, through June 30, 2005 $1.75 million
July 1, 2005, through June 30, 2006 $1.80 million
July 1, 2006, through June 30, 2007 $1.85 million
July 1, 2007, through June 30, 2008 $1.925 million
July 1, 2008, through June 30, 2012 $2.00 million
July 1, 2012, through June 30, 2013 $2.05 million
July 1, 2013, through June 30, 2014 $2.10 million
July 1, 2014, through June 30, 2015 $2.15 million
July 1, 2015, through June 30, 2016 $2.20 million
July 1, 2016, through June 30, 2017 $2.25 million
July 1, 2017, through June 30, 2018 $2.30 million
July 1, 2018, through June 30, 2019 $2.35 million
July 1, 2019, through June 30, 2020 $2.40 million
July 1, 2020, through June 30, 2021 $2.45 million
July 1, 2021, through June 30, 2022 $2.50 million
July 1, 2022, through June 30, 2023 $2.55 million
July 1, 2023, through June 30, 2024 $2.60 million
July 1, 2024, through June 30, 2025 $2.65 million
July 1, 2025, through June 30, 2026 $2.70 million
July 1, 2026, through June 30, 2027 $2.75 million
July 1, 2027, through June 30, 2028 $2.80 million
July 1, 2028, through June 30, 2029 $2.85 million
July 1, 2029, through June 30, 2030 $2.90 million
July 1, 2030, through June 30, 2031 $2.95 million
In any verdict returned against a health care provider in an action for malpractice where the act or acts of malpractice occurred on or after July 1, 2031, which is tried by a jury or in any judgment entered against a health care provider in such an action which is tried without a jury, the total amount recoverable for any injury to, or death of, a patient shall not exceed $3 million. Each annual increase shall apply to the act or acts of malpractice occurring on or after the effective date of the increase.[4]
As can be seen, this statutory scheme contains within it a periodic increase of the upper limit of medical malpractice awards. If the cap applies, however, these numbers are absolute. The severity of the patient’s injuries are irrelevant; the amount of their medical bills or the cost of their future care is irrelevant; the amount of the wages they have lost and will lose over the course of their lifetime is irrelevant. The cap is the cap.
Therefore, it is important to know when the cap applies. The cap only applies to verdicts returned against “health care providers” in an “action for malpractice.”[5] “Malpractice” is defined as “any tort action or breach of contract action for personal injuries or wrongful death, based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient.”[6]
“Health care” is defined separately as “any act, professional services in nursing homes, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical diagnosis, care, treatment or confinement.[7] In other words, the claim against the healthcare provider must have arisen out of the treatment they were providing.
The definition of “Health Care Provider” includes a long list of persons, entities, and professions that qualify.[8] Finally, “patient” is “any natural person who receives or should have received health care from a licensed health care provider except those persons who are given health care in an emergency situation which exempts the health care provider from liability for his emergency services in accordance with § 8.01-225 or 44-146.23.”[9]
If a potential plaintiff’s situation meets this definition, the cap applies, and it limits the total amount of recovery that a plaintiff can achieve in the action. There are nuances to this analysis. This is why it is of vital importance that a person injured by what they believe to be medical malpractice consult with experienced Virginia medical malpractice attorneys who can guide them through this process. Contact us today for a consultation.
[1] No Cap Definition: The expression no cap is slang meaning “no lie” or “for real,” often used to emphasize someone is not exaggerating about something hard to believe.
[2] See Virginia Model Jury Instruction – Civil No. 9.000; Categories of Damages in Virginia Personal Injury Cases
[3] See Va. Code § 8.01-52.
[4] Va. Code § 8.01-581.15 (emphasis added).
[5] Id.
[6] Va. Code § 8.01-581.1 (emphasis added).
[7] Va. Code § 8.01-581.1 (emphasis added).
[8] Id.
[9] Id.
