Malpractice Cap Robs Another Victim

Ben Glass

Attorney
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The Supreme Court of Virginia recently decided King v. Cooley, a medical malpractice case. The decision turned on whether certain evidence should have been admitted. Overlooked so far is the fact that this case shows exactly how Virginia's medical malpractice cap punishes the most severely injured.

Tamatha Cooley alleged that Dr. Bradford King of Surgical Associates of Fredericks burg was guilty of malpractice in failing to timely diagnose an intestinal leak following gastric bypass surgery he did on her.

The jury agreed.

According to the opinion of the Virginia Supreme Court, Cooley was left with a permanent, severe brain injury. The jury, not aware of Virginia's ridiculous limit on malpractice awards, awarded her $3.5 million for her injuries. Because of Virginia's insurance company protection law, that verdict was automatically reduced to $1.65 million.

Virginia's cap is a "unitary cap." This means that even if Cooley's medical and other expenses exceed $1.65 million over her lifetime, the most she can recover from Dr. King's insurance company is $1.65 million. This is not a "pain and suffering cap." This is a total cap.

Here's the irony: If instead of Dr. King hurting her in the operating room she had crashed her car into him in an intersection, causing him to never be able to walk and work again, he could have recovered millions and millions from her.

Is that fair? That's tort reform in Virginia.

For more information on this subject, please refer to our section on Medical Malpractice and Negligent Care.