Today I had the pleasure of speaking to the annual conference of the Virginia Medical Society in Richmond. The Medical Society is the advocacy organization for the thousands of medical doctors around Virginia. Much of their time in the Assembly is spent lobbying the Health Committees on issues like Medicaid and scope of practice.
Today, however, the engagement was specifically to speak and answer questions about medical malpractice.
The “med mal” laws in Virginia are unique in their protections. Unlike all other negligence claims, the damages from a medical malpractice suit in Virginia are “capped” at $2 million per victim. That definition is strictly construed. (A mother and her unborn child are considered as one life — a little known fact).
Before filing a med mal suit, the plaintiff has to obtain an expert opinion from a practicing physician that the underlying actions were negligent and proximately caused the injury. Without that opinion, there is no case.
The discovery rules and disclosure deadlines in med mal cases are accelerated to require early investment by plaintiff and discourage frivolous cases. As a result, the pretrial costs of such a case — for both sides — can be staggering.
I state that because the general theme among doctors whom I know and greatly respect (including family members) is that “malpractice insurance” is driving them out of business and that is caused by frivolous lawsuits. And, therefore, some folks want to create more barriers to lawsuits.
At least in this state, the current obstacles to bringing a med-male case are daunting. Most trial attorneys don’t bother touching one unless the outcome led to death or permanent disability. Even then, the $2M cap applies.
My point is not to bash the current system. Medical care is perceived more and more as a “right.” Doctors are often faced with situations where they provide care in less-than-perfect situations. Unlike other professions, they cannot always pick and choose patients. For all those reasons, I accept the reality of a cap. I also believe that updating it is good policy and recognizes that costs for injured parties rise along with inflation.
By the same token, the current system gives few incentives to settle. Most defendants can wait to see if plaintiffs have the resources to actually get to the courthouse. In almost all cases, the plaintiff himself does not. He must effectively borrow from his lawyer to get there. Thus, there’s no incentive for defendants to settle early and resolve the case until the plaintiff’s attorney has signified that he’s “all in” for the trial.
There has been a lot of talk about malpractice reform. I’m all for that. But any reform should expedite the settlement of meritorious claims without having to spend six figures to get a hearing.
Anyway, those were some of the issues discussed. Again, thanks to the Med Society for allowing me to give a different perspective.