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Michael Phelan
Michael Phelan
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Virginia Considers Raising It’s Damages Cap Under the Tort Claims Act

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In the aftermath of the horrific Virginia Tech shootings, the Virginia General Assembly is considering whether the limits on the state’s liability in cases of negligence should be increased above the current $100,000 cap.  The cap was last raised in 1983 from $25,000 to $100,000.  After 40 families of those killed or injured a year ago at Virginia Tech filed tort claims against the state, legislators decided to study the issue of raising the cap this coming summer.  The low cap limited the state’s ability to settle with the families.  On Thursday, Governor Kaine announced that  a majority of the families agreed to accept an offer that will pay $100,000 plus health benefits and other non-monetary assistance to the families of the 32 people killed by Seung Hui Cho, while those injured will receive up to $100,000 depending upon the severity of their injuries.  This appears to be a bi-partisan discussion in which Del. David Albo, a fellow trial lawyer, suggested the cap be permanently indexed to inflation.

I am encouraged that the General Assembly is considering doing what is equitable.  As Delegate Albo correctly stated, “what was $100,000 in 1993 is not $100,000 today.”  The same level-headed approach should be taken with the medical malpractice cap which not too long ago was capped at a stagnant $1 million.  Several years ago, the General Assembly raised the medical malpractice cap for acts of malpractice occurring on or before August 1, 1999 to $1.5 million with annual increases in the sum of $50,000 from July 1, 200 through July 1, 2006 and $75,000 on July 1, 2007 and 2008.  To some, this may seem like a fair approach.  However, consider the hypothetical case of the child who is born with profound physical disabilities as a result of being delivered by a negligent doctor who performed the delivery under the influence of drugs or alcohol.  This child may need life long therapies and surgeries, but may also have a full life expectancy.  Leaving aside the family’s emotional damages, the child’s medical bills alone will far exceed the medical malpractice cap in the first 10 years of his or her life.  Is this fair?