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SPECIAL TO THE NATIONAL LAW JOURNAL A Fredericksburg, Va., jury awarded National Science Foundation attorney Craig Allen $6.5 million in what is believed to be the state’s largest medical malpractice verdict. But Allen will likely see just a fraction of that award after it is automatically reduced by the state’s statutory cap on medical malpractice damages. Allen suffered from an inflammation of the spine that his doctor failed to diagnose. The doctor assumed that the tingling he complained of was a side effect of the anti-depressant he was taking. According to Allen’s lawyer, the defense did not contest the $1 million in projected income the 33-year-old would lose, or the $2.5 million in anticipated medical expenses. Yet that $3.5 million, plus $3 million more added by the jury, will be automatically cut to $1.55 million. Virginia Code � 8.01-581.15 imposes a hard cap of $1.5 million for all med-mal damages. That limit was set in 1999, and increases by $50,000 each year until 2006, then by $75,000 annually until the cap reaches $2 million. The cap is second only to California’s in its stringency, said Donald Tortorice, a law professor at the College of William & Mary, because it caps all damages. Most states that limit med-mal damages use so-called soft caps, ones that limit noneconomic damages or punitive damages only. One of Allen’s lawyers, Jason Konvicka of Richmond, Va.’s Allen, Allen, Allen & Allen (no relation), said his client’s case is a perfect example of how unfair the statute is. “Caps end up punishing people who are injured the worst,” he said. “As happy as we are for our client, and for being part of the biggest verdict in Virginia history, it’s kind of bittersweet.” Attorneys for Allen’s doctor could not be reached for comment. Medical malpractice defense attorney Pierce Rucker of Richmond’s Sands, Anderson, Marks & Miller said such large verdicts are the exception rather than the rule. Virginia is a conservative state that yields conservative awards in all personal injury cases. The damages cap does not have a chilling effect on case filings, prosecutions, awards or settlements, he said. However, litigating cases under the cap does change trial strategy. All of the defense’s force goes into disproving liability or causation. As in Allen’s case, many defendants do not challenge damages. The result is that only the most egregious cases go to trial, Konvicka said, and those cases are the ones that will get reduced. “The question is: Should we place the financial burden of medical malpractice damages on the medical profession, or do we want it carried by victims and their families?” asked Tortorice, a one-time health care defense attorney at Philadelphia’s Duane Morris. “I haven’t heard anyone espouse a defensible ethic that moves the burden of negligence to the victim.” Rhyne’s e-mail address is [email protected]

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