By Y. Peter Kang

Law360 (March 9, 2021, 6:10 PM EST ) A failed legislative challenge to Virginia's cap on medical malpractice damages and a new coronavirus liability shield in Wisconsin lead Law360's Tort Report, which compiles recent personal injury and medical malpractice news that may have flown under the radar.

Virginia Med Mal Damages Bill Dies on the Vine

A bid to overturn Virginia's cap on medical malpractice damages ended last month when the state's General Assembly adjourned its legislative session without taking action on a bill that was being supported by an attorney best known for representing Paula Jones in her sexual harassment suit against President Bill Clinton.

S.B. 1107, which would have eliminated the current $2.45 million total damages limit for medical malpractice payouts, didn't make it out of the Senate Judiciary Committee before the legislative session ended on Feb. 11.

Washington, D.C.-based attorney Joe Cammarata had garnered the support of state Sen. Bill Stanley, a Republican, to move the legislation forward, but to no avail. Cammarata, a partner with personal injury firm Chaikin Sherman Cammarata & Siegel PC, served as one of Jones' attorneys in her suit against Clinton in the late 1990s, a case that ultimately ended in an $850,000 settlement.

One medical malpractice defense attorney had expressed skepticism regarding the bill's chances, telling Law360 in January that the legislation did not have the support of the Virginia Trial Lawyers Association, an advocacy group for the plaintiffs bar, due to a legislative compromise it had forged with health care industry lobbying group the Medical Society of Virginia.

"The Virginia Trial Lawyers Association is not behind this new bill," said Coreen Silverman, a Hancock Daniel & Johnson PC partner. "They are standing on the sidelines and standing by their agreement."

That 2010 deal resulted in the current cap, which is raised annually and is set to max out in 2031 at $2.95 million.

Cammarata told Law360 on Monday that he was encouraged by the conversations that took place among lawmakers regarding potential changes to the cap.

"There was a recognition by the legislators that something needed to be done and that the result of a cap is unfair, unjust and needs to be changed," he said. "I think this sets in motion a certain inevitability that the law will be changed to protect people that need protection. It was a great effort and broke the ice, got people talking and shook things up."

The attorney added that he was prepared to push for similar legislation next year and in the years to come.

Opponents of Virginia's damages cap suffered a related defeat March 4, when a federal judge declined to hear a constitutional challenge to the cap in a suit accusing a health clinic of causing a child's serious injuries. The judge said even though other health care providers had settled out of the case for $2 million, the issue was not ripe for adjudication because the clinic had not yet been found liable.

The case is J.S. v. Winchester Pediatric Clinic PC, case number 5:19-cv-00097, in the U.S. District Court for the Western District of Virginia.

Wisconsin Gives Businesses Immunity From COVID-19 Suits

Wisconsin Gov. Tony Evers signed a bill into law on Feb. 25 that shields businesses from coronavirus-related injury suits, making the Badger State the latest to have enacted such legislation.

The law gives civil immunity to corporations, government entities, schools and nonprofit organizations, among others, so long as the negligence alleged in such a suit doesn't involve "reckless or wanton conduct or intentional misconduct." It applies to suits filed after Feb. 27 for claims that accrued after March 1, 2020. The law does not apply to suits that have already been filed.

The bill was signed after Evers vetoed a different coronavirus immunity bill that had been pushed through by GOP lawmakers. That legislation contained several other provisions related to coronavirus relief, including a limit on the governor's emergency powers.

Wisconsin's liability shield was passed one week after Indiana adopted a similar law protecting businesses, schools, health care providers and others from COVID-19 suits and two weeks after Alabama's governor signed similar legislation. South Dakota and Montana also adopted similar laws in February.

Florida lawmakers are seeking to pass their own immunity law, with the state's House of Representatives recently voting to approve a bill that critics say goes too far in shielding businesses from ramifications of bad behavior.

Texas Utility Hit With Storm-Related Wrongful Death Suit

San Antonio's CPS Energy has been sued by the family of a woman who froze to death due to a power outage during the February winter storm in Texas, according to attorneys representing the family.

Elizabeth Rodriguez's widower, Jesus Rodriguez, accuses the city-owned utility of failing to increase electric production capacity in the San Antonio area prior to the expected arrival of the storm, which caused his wife to freeze to death on Feb. 17, according to a complaint filed in Bexar County District Court on March 1.

"CPS Energy has known for decades that it needed to winterize and update its generation, transmission, and distribution facilities in order to prevent cold-weather failures like those experienced in February 2021, but consciously chose not to do so," attorney Jesus Garcia Jr. of Kherkher Garcia LLP said in a statement.

The suit brings claims of negligence, gross negligence and wrongful death.

It's just one of several suits that have been filed in the weeks following the severe storm, which left more than 4 million Texans without power.

The Electric Reliability Council of Texas faces a $100 million suit filed by the families of an 11-year-old boy and a 95-year-old man who both froze to death. The suit accuses the electric grid operator of failing to upgrade its system ahead of the storm.

The viability of lawsuits against ERCOT, a nonprofit organization that controls about 90% of the state's grid serving 24 million Texans, has been called into question given the Texas Court of Appeals' 2018 ruling that said the company was entitled to sovereign immunity. That decision has been challenged at the Texas Supreme Court, which heard oral arguments in the case in September and is expected to issue a ruling by early summer.

The CPS case is Jesus Rodriguez v. The City of San Antonio by and through City Public Service Board d/b/a CPS Energy, case number 2021CI03639, in the 408th District Court in Bexar County, Texas.

Washington Health System Pays $18M To End Patient Stroke Suit

A patient who suffered a catastrophic stroke due to a radiologist's allegedly shoddy interpretation of an MRI has agreed to settle a suit lodged against Seattle-based Swedish Health Services for $18 million, her attorneys announced on March 3.

The family of Isabel De Jesus-Congdon, a former nurse for the health system, had said that Dr. Richard Travis Clark, a radiologist for a physicians group under contract with Swedish Health, failed to diagnose the patient's subarachnoid hemorrhage, a life-threatening type of stroke.

Had the stroke been timely diagnosed, an immediate brain surgery would have been performed, the suit alleged, but instead the patient was diagnosed with a headache and sent home, where she later collapsed and suffered catastrophic injuries.

Attorneys for the family said Swedish Health repeatedly tried to delay the case by attempting to require in-person depositions during the coronavirus pandemic, but a trial judge ultimately approved the use of remote video depositions.

"Throughout this case, the defense tried time after time to avoid responsibility," Robert Gellatly of Luvera Law Firm said in a statement. "This settlement is a huge relief for the family after a long and hard-fought battle for accountability."

Representatives for Swedish Health couldn't be reached for comment.

The case is James Congdon et al. v. Swedish Health Services et al., case number 18-2-14723-9 SEA, in the Superior Court of Washington for King County.

--Editing by Aaron Pelc.

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