
    CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
    Quewann Bennett etc. v. Riverside Regional Medical Center et al.
    March 17, 1997
    Case No. (Law) 23629-RF
   By Judge Robert P. Frank

This case is before toe court cm defendant’s motion to reduce plaintiffs ad damnum clause from $6,000,000.60 to $1,000,060.00. Defendant argues toe statutory limitation on recovery articulated in toe Virginia Code mandates that toe plaintiff seek only that amount in his motion for judgment. See Va. Code Ann. § 8.01-581.15 (Michie 1992). Code § 8.01-581.15 states in pertinent part: "hi any verdict returned against a health care provider in an action for malpractice where toe act or acts of malpractice occurred on or after October 1,1983... toe total amount recoverable for any injury to, or death of, a patient shall not exceed one million dollars.” The court has considered counsels’ oral argument and briefs and, for the reasons outlined below, denies defendant's motion.

The jury's function in a civil case is to resolve disputed facts, and this function extends to toe assessment of damages. Stanardsville Vol. Fire Co. v. Berry, 229 Va. 578, 583 (1985). The jury’s function in a medical malpractice case is "toe same as in any other tort action: to decide toe issues of negligence, proximate cause, and damages.” Blondel v. Hays, 241 Va. 467, 474 (1991) (commenting that toe standard for a motion to strike should not also serve to guide a jury and reiterating the tole of toe jury in a medical malpractice case); See also Raines v. Lutz, 231 Va. 110, 115 (1986) (holding toe "medical malpractice statutes do sot supersede toe jury system. The determination of negligence, proximate cause, and damages remains within toe jury’s province.”).

Tire Court k Etheridge v. Medical Center Hospitals discussed the mle of the jury vis-a-vis die limitation on recovery k medical malpractice actions, k discussing die constitutionality of Va. Code §8.01-581.15, the court first commented, "die resolution of disputed facts continues to he a jury’s sole function.” Etheridge v. Medical Center Hospitals, 237 Va. 87, 96 (1989). Then focusing on the medical malpractice cap, die court found: "The limitation on medical malpractice recoveries ... does nothing more than establish the outer limits of a remedy provided by the General Assembly [citations omitted]. A remedy is a matter of law, not a matter of fact [citations omitted]. A trial court applies the remedy’s limitation only after the jury has fulfilled its fact-finding function." Id. While the gravamen of the plaintiffs claim in Etheridge was that the medical malpractice cap is unconstitutional, and die above language is dicta, this court finds the decision persuasive as to the jury’s role in the determination of damages.

Defendant argues the jury is more likely to return a verdict above the statutory limit if die plaintiffs ad damnum is hot reduced. The defendant argues a verdict above die statutory limit would be outside the defendant’s insurance coverage and may force die defendant to consider hiring independent counsel. Def. Mem. at 2. The court, however, has no discretion to award damages above the statutory limit. Etheridge, 237 Va. at 101 (holding "were die court to ignore the IsgLsMvely-delermined remedy and enter an award k excess of die permitted amount, the court would invade the province of die legislature.”). Defendant’s argument on this point is not persuasive given the court’s obligation to reduce any verdict above the statutory cap.

For die reasons stated above, the court denies defendant’s motion,  