2.4 Damage Awards

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

2.4 DAMAGE AWARDS

2.401 Limits on Recovery. Virginia law limits recovery for damages associated with medical malpractice litigation in accordance with the Act. ³⁰ The total damages recoverable in Virginia in an action alleging medical malpractice occurring on or after July 1, 2016 is $2.25 million. This statutory cap applies to alleged acts of medical negligence occurring on or after the effective date of each increase.

The medical malpractice cap limits the total amount recoverable for any injury or death regardless of the number of health care provider defendants. Prejudgment interest and punitive damages continue to be subject to the cap. The medical malpractice cap only applies to a verdict against a health care provider as defined by section 8.01-581.1 of the Virginia Code. ³¹

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The plaintiff is not limited in the amount of damages he or she may seek to recover. Rather, if a jury returns a verdict in excess of the statutory cap, the verdict is reduced by the judge, and judgment is entered in the amount of the statutory cap.

2.402 Punitive Damages. Punitive damages are limited to $350,000 in Virginia. ³² While a jury may award more than this, a judge must reduce the award to the statutory cap. This limit is for punitive damages against all defendants.

The United States Court of Appeals for the Fourth Circuit has postulated that if the Supreme Court of Virginia was presented with the question of whether limiting instructions for punitive damages are appropriate, the Supreme Court of Virginia would require Virginia trial courts to instruct juries to consider the following factors when fixing punitive damages: "(1) the relationship of punitive damages to the harm caused (proportionality); (2) other penalties assessed for the punished behavior; (3) benefits obtained from the wrongful conduct and costs incurred by the victim to redress it; and (4) limitations based on the wrong-doer's ability to pay." ³³ Whether the Virginia Supreme Court will follow this ruling is yet to be seen, but at least one Virginia trial court has determined that the Fourth Circuit's Johnson v. Hugo's Skateway ³⁴ holding is only applicable to a federal court

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applying federal procedural law and Virginia substantive law to a punitive damages question. ³⁵

2.403 Prejudgment Interest. For many years, no Virginia state or federal court decision had definitively stated whether prejudgment interest is included within the medical malpractice cap. However, the Virginia Supreme Court ruled in 1999 that prejudgment interest is in fact included within the limit imposed by section 8.01-581.15. ³⁶

2.404 Wrongful Death and Survival Actions. No action for wrongful death existed at common law in Virginia. The cause of action was created by statute and is today codified as section 8.01-50 of the Virginia Code. This section provides that if death is caused by a wrongful or negligent act, the decedent's personal representative may bring an action against the same parties that would have been liable for personal injury had the decedent lived. Damages in a wrongful death case are prescribed by statute ³⁷ and do not include the decedent's pain and suffering. ³⁸ It should be noted that a suit for wrongful death is one of the options available to the administrator of the decedent's estate. The administrator may also elect to bring a survival action for damages based on the claim that the decedent suffered from the alleged negligence. ³⁹ Although administrators can assert wrongful death and survival claims, pled in the alternative, "they may only recover once for the same injury." ⁴⁰ The administrator must elect a theory of recovery "at a time when the record sufficiently establishes that the personal injuries and the death arose from the same cause." ⁴¹ In addition, administrator-plaintiffs are required to convert survival actions into wrongful death actions "in those cases in which the facts establish that the 'decedent died as a result of the injury complained of,' Code § 8.01-25, and 'death resulted from the injury for which the action was originally brought,' Code § 8.01-56." ⁴²

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The specific elements recoverable in a wrongful death action are:

1.	Mental suffering of beneficiaries;
2.	Loss of income and services;
3.	Expense of decedent's medical care;
4.	Funeral expenses; and
5.	Punitive damages. 43

The last three items must be itemized in the jury's verdict. A life expectancy table as set forth in section 8.01-419 of the Virginia Code is admissible whenever that evidence is relevant. ⁴⁴ The previously discussed caps on medical malpractice damages and punitive damages also apply to wrongful death actions.

2.405 Emotional Distress. In Virginia, "physical injury" is usually required for a claim of emotional distress. ⁴⁵ Where a child is injured, the child's claim must be proven before the parents can prevail. ⁴⁶ The Virginia Supreme Court has held that plaintiffs must demonstrate objective physical symptoms in order to prevail under this cause of action. ⁴⁷ In making that decision, the court referred to the test set forth in the Restatement (Second) of Torts.

It is a well-established general rule that there is no claim for negligent infliction of emotional distress in Virginia. Specifically, there is no recovery for emotional distress unless it results directly from a tortiously caused physical injury. There are few exceptions to this general rule. These exceptions have been established primarily by three cases: Naccash v. Burger, ⁴⁸ Womack v. Eldridge, ⁴⁹ and Hughes v. Moore. ⁵⁰

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In Hughes, the court held that where there is no evidence of willful, wanton, or vindictive conduct and there is no physical impact, there can be no recovery for emotional injury alone. ⁵¹ The Hughes exception applies where emotional distress and a physical injury are claimed and the physical injury is the natural result of the emotional distress. Specifically, the court held that "there may be recovery for negligent conduct, notwithstanding the lack of physical impact, provided the injured party properly pleads and proves by clear and convincing evidence that his physical injury was the natural result of fright or shock proximately caused by the defendant's negligence." ⁵² However, the court made clear that this new rule does not allow recovery "for physical injuries resulting from fright or shock caused by witnessing injury to another, allegedly occasioned by the negligence of the defendant toward a third person." ⁵³

The second exception to the general rule regarding recovery for emotional distress was carved out in Womack. In order to recover for emotional distress unaccompanied by a physical injury, the court held that the plaintiff must prove the following elements:

1.	The conduct was intentional or reckless;
2.	The conduct was outrageous and intolerable in that it offends the generally accepted standards of decency and morality;
3.	There was a causal connection between the defendant's conduct and the emotional distress; and
4.	The emotional distress was severe. 54

In Harris v. Kreutzer, ⁵⁵ the Supreme Court of Virginia affirmed the Womack decision and further clarified the required elements for a claim of emotional distress with no accompanying physical injury. Specifically focusing on the outrageous conduct and severity elements, the court found that merely insensitive or demeaning conduct does not rise to the level of outrageousness ⁵⁶

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and that only distress that "no...