What Happens When Damages Exceed the Cap in Medical Malpractice Cases

Dan Frith

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I practice law in Virginia...a beautiful state with much to offer...unless you are the victim of a serious medical error which renders you a quadriplegic...or comatose for life...or incapable of earning an income for your family.

In Virginia all damages against a health care provider (doctor, hospital, nursing home, etc.) are "capped" or limited to $2 million for claims arising after July of 2008. A lot of money indeed, but lets look closely at Virginia's medmal cap. What if a patient is the victim of medical negligence and is so injured as a result that she will require medical care costing $150,000 per year for the rest of her 30 year life expectancy? My math indicates that, despite not even counting damages for pain and suffering, that patient will incur $4.5 million in just monetary damages. Does anyone pay the rest and, if so, who?

I recently had the opportunity to speak with some of the professional and business pillars of my city (Roanoke, Virginia). This topic came up and it appeared the answer to the above question was a surprise to some. The answer: The portion of the patient's monetary damages above the cap are paid by YOU....the taxpayer...in the form of Medicaid or Medicare benefits.

Is that fair? I do not think so...someone tell me I'm wrong and why!