Virginia: Medical Malpractice – a Lawyer’s Detainee

Virginia: Medical Malpractice – a Lawyer’s Detainee

On June 23, 2016, the Virginia Supreme Court issued Commonwealth v. Virginia Ass’n of Counties Group Self Insurance Risk Pool, No. 150930.  It is a New Kent County declaratory judgment action between insurance companies over coverage, arising out of a state medical malpractice and federal civil rights claims in a federal suit for personal injuries.  See, Boren v. Northwestern Reg’l Jail Auth., 2013 U.S. Dist. LEXIS 140169 (W.D. Va. Sep. 30, 2013).  Id. at 1, 3-4.

Commonwealth v. Virginia Ass’n held that two insurers’ separate general liability policies covering the jail authority and its personnel provided “concurrent primary coverage,” not sole primary coverage and excess coverage.  Id. at 1, 8-14, 17.  It also held that one of the insurer’s “coverage extension applicable to medical malpractice claims did not apply to [the] §1983 civil rights claim alleging violations of federal constitutional law”.  Id. at 17.

Commonwealth v. Virginia Ass’n delineated that “the federal §1983 claim cannot be equated with medical malpractice principles governed by state tort law.  Nor is it sufficiently analogous to be treated as such.”  Id.  Notably, dicta emphatically declared that the Virginia Medical Malpractice Act’s damages cap was inapplicable to “federal civil rights claims alleging constitutional violations”.  Id. at 16 (italics in original).