Document Type


Publication Date

Spring 2000


George Mason Law Review





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Consider the following scenario. A plaintiff is injured in a devastating automobile accident and a jury finds the other driver negligent. As a result of that driver's negligence, the plaintiff is now a quadriplegic. The jury, after careful deliberation and calculation, awards $4.5 million to the plaintiff consisting of both economic damages for past and future medical expenses, as well as non-economic damages for pain and suffering and loss of enjoyment of life. Now consider a similar scenario. The plaintiff is a patient who is injured during a low-risk surgical procedure and a jury finds the surgeon negligent. As a result of the surgeon's negligence, the plaintiff is now a quadriplegic. Although negligence caused each plaintiffs injuries, under Virginia's Medical Malpractice statute, the plaintiff in the second scenario finds his damages limited to a maximum of $1.5 million dollars for both economic and non-economic damages.

In the 1970s, numerous state legislatures believed that a statutory limitation or "cap," on medical malpractice damages would prove to be an effective mechanism for ensuring future affordability and availability of medical malpractice insurance for health care providers. However, the perceived threat of an economic crisis in medical malpractice insurance rates and availability in the 1970s did not correspond with existing insurance statistics at the time. For instance, one study found that the average hospital only spent approximately one percent of its annual revenues on malpractice insurance during the period immediately before and after most states imposed a cap on medical malpractice damages. By 1985, the American Medical Association (AMA) estimated that the average physician spent only four percent of her income on malpractice insurance. Furthermore, the overall probability of a serious medical malpractice mistake resulting in damages exceeding $1 million was estimated at roughly one in 100,000 in hospitals, with an even lower injury probability occurring within a physician's private office. Despite these statistics, state legislatures quickly passed statutory caps on total damages recoverable in a medical malpractice action to deal with a perceived "crisis" in the malpractice insurance industry. The Commonwealth of Virginia is among those states with a medical malpractice cap and it continues to support the cap as the most effective means for keeping malpractice premiums under control.



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